Case Metadata

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL  APPEAL CASE NO. 184 OF 2011

[BEING AN APPEAL FROM THE JUDGMENT OF HON NGARNGAR (PM) IN BUNGOMA CHIEF MAGISTRATE'S  COURT CRIMINAL CASE NO. 1254 OF 2010]

BERNARD MABONGA.......................... APPELLANT

VERSUS

REPUBLIC........................................... RESPONDENT

JUDGMENT

The Appellant filed this appeal to challenge both conviction and sentence against a charge of defilement of a child contrary to Section 8 (1) as read with sub-section 3 of the Sexual Offences Act No.  3 of 2009.  He was sentenced to serve 20 years  imprisonment.

During the hearing of the appeal, he submitted that he was not challenging the conviction but  was appealing on  sentence, which according to him was harsh.

The State Counsel  in reply submitted that the trial court was bound by the Law.  Under section 8 (3) of the Sexual Offences Act, the minimum sentence provided is  20 years.  She urged the court to uphold the sentence.

Section 8 (3) provides that  “a person who commits an offence of defilement with a child between the age of  12 and 15 years  is liable upon conviction to imprisonment  for a term of not less than 20 years.”. This position is restated in the case of DAVID KUNDU SIMIYU vs REPUBLIC, CR APPEAL NO 8 OF 2008, the Court of Appeal sitting in eldoret;

         "Those are minimum sentences and parliament appears not to give discretion to courts to impose sentences   below those specified as the minimum. The provisions accord the prime objective of the Act which is prevention    and protection of all persons from harm and  unlawful sexual    assault".

The complainant in the instant case was 13 years old.  The lower court   thus gave the Appellant the minimum sentence prescribed by the Law.  There is nothing much this court can do as where a minimum sentence is prescribed, you are bound by the law.  The sentence meted out was within the  law.  The appeal  is  therefore dismissed.

 Dated And Delivered in open court this 7th day of November  2013.

A. OMOLLO

JUDGE.