The High Court in Mombasa enhanced a 40-year prison sentence to life imprisonment for a man convicted of defiling a minor, emphasizing the mandatory provisions of the Sexual Offences Act.
Lady Justice Wendy Kagendo Micheni substituted Mwarabu Omar Pato’s 40-year jail term with the mandatory life imprisonment stipulated under Section 8(2) of the Sexual Offences Act.
The appellant was initially sentenced to 40 years’ imprisonment for defiling a child aged 11 years or less.
However, upon review, the High Court determined that the sentence was inconsistent with Section 8(2) of the Sexual Offences Act, which mandates life imprisonment for such offences.
The court emphasized that the mandatory nature of the sentence leaves no room for discretion in such cases.
Omar had appealed against his conviction and sentence by Senior Resident Magistrate David Odhiambo.
The High Court found that the prosecution had proven all elements of the offence beyond reasonable doubt, including the age of the victim, the occurrence of penetration, and the positive identification of the accused.
Justice Micheni ruled that the trial court was in order to mete out the 40-year sentence it imposed on the convicted defiler.
The judge stated that she would take a cue from the infamous Supreme Court Muruatetu decision by revising the 40-year sentence to an enhanced life imprisonment.
In the ruling, the judge also referenced recent Supreme Court decisions β Joshua Gichuki Mwangi NC [2024] KESC 34 (KLR) and Evans Nyamari Ayako β which clarified that statutory minimum sentences, including life imprisonment, are constitutional and enforceable.
The court reaffirmed that a life sentence indeed means imprisonment for life.
Justice Micheni dismissed the appeal against the convict, declaring it lacked merit.
The court emphasized that the earlier 40-year term was inconsistent with the law, which prescribes a mandatory life sentence for defilement of a child aged 11 or below.
The boda boda rider committed the offence on November 14, 2022, at Mikanjuni area in Jomvu sub-county within Mombasa County.
The convict used to take the minor to school and madrasa since she was in nursery school.
On the fateful day, instead of taking her to school, he defiled her by a narrow path leading to school before being rescued by good Samaritans who handed him over to police and took the minor to the hospital for treatment.
The High case prosecuted by Prosecution Counsel Benard Ngiri had been prosecuted by Principal Prosecution Counsel Barbara Sombo at the magistrateΒ court.
