Simon Kabiru Nyambura v Republic [2020] KEHC 862 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 98 OF 2017

SIMON KABIRU NYAMBURA.........................................................................APPELLANT

VERSUS

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

(An appeal on sentence from the judgment and/or decree of Honourable B. Mararo

Principal Magistrate in Nakuru A/CR. No. 242 of 2016 delivered on 31st October 2017)

JUDGMENT

1. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars being that on the 25th day of December 2016 within Nakuru County, intentionally and unlawfully committed an act by inserting his male genital organ namely penis into the genital organ namely vagina of MA a child aged 15 years.

2. The alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars being that on the 25th day of December 2016 within Nakuru County, intentionally and unlawfully committed an indecent act with MA a girl aged 15 years by touching her private parts namely vagina with his male genital organ namely penis.

3. The appellant denied the charges and the case proceeded for full trial.  The prosecution called 5 witnesses in support of their case while the appellant in his defence gave sworn statement without calling any witness.  By the judgment delivered on 31st October 2017, the lower Court found the appellant guilty of the main charge convicted and sentenced him to 20 years’ imprisonment.

4. The appellant being aggrieved and dissatisfied with the conviction and sentence, acting in person, he filed this appeal through a Petition of Appeal dated 13th of November 2017 and challenged the conviction and sentence on the following grounds: -

i. The learned trial magistrate erred both in law and in fact by failing to appreciate that the medical evidence produced before the trial court did not support the charges;

ii. The learned trial magistrate erred both in law and in facts by failing to consider that although it is an obligation of the prosecution to furnish the accused with statement and such other evidence they intend to use against the accused, it failed to do so despite his continued insistence;

iii. The learned trial magistrate erred in law and in fact by failing to consider that the alleged underlying circumstances during the commission of the offence were illogical and inconsistent with the truth;

iv. That the learned trial magistrate erred in law and in facts by failing to appreciate that the P3 form produced in evidence before the Court did not support the charge.

5. The state opposed the appeal both on conviction and sentence. On 5th November 2020 when the appeal came up for hearing, after oral submissions being made by the state counsel, the appellant decided to withdraw the appeal on conviction and prayed that the sentence be reduced.

ANALYSIS AND DETERMINATION

6. The appellant having withdrawn appeal on sentence will not make any comment on initial submissions on conviction and only determine whether the appellant deserve reduction of sentence.  The appellant was sentenced to 20 years after he was found guilty of defiling the complainant.  Record show that the complainant defiled was 15 years old. The Court imposed minimum sentence provided by statute.

7. I note that mandatory nature of death sentence was however declared unconstitutional by the Supreme Court in the case of Muruatetu for taking away Court’s discretion.  It renders mitigating factors superfluous. The appellant opted not to mitigate in the lower Court and in the lower Court he prayed for the sentence to be reduced.

8. I have considered circumstances of this case; I also take note of the age of the complainant herein and find it appropriate to reduce the sentence to 10 years’ imprisonment.

9. FINAL ORDER

1. Appeal on conviction marked as withdrawn.

2. Appeal on sentence allowed and sentence reduced to 10 years’ imprisonment from the date of sentence before the lower court 31st October 2017.

Judgment dated, read and delivered at Nakuru via zoom This 9th December, 2020

RACHEL NGETICH

JUDGE

In the Presence of:

Court Assistant – Jeniffer

State Counsel – Rita

Accused in person