Man appeals 40-year jail term, gets life for defilement instead
However, upon review, the High Court found that this sentence was inconsistent with the law, which requires life imprisonment for such offenses.
A Mombasa High Court has increased a 40-year prison sentence to life imprisonment for a man convicted of defiling a minor in Mombasa, emphasizing the mandatory provisions in the Sexual Offences Act.
Omar Pato had appealed his conviction and sentence which had been imposed by Senior Resident Magistrate David Odhiambo.
"However, after successful presentation of evidence and reasons by the DPP through Prosecution Counsel Wangui Ngiri, Lady Justice Wendy Kagendo Micheni replaced Mwarabu Omar Pato's 40-year sentence with life imprisonment, as mandated by Section 8(2) of the Sexual Offences Act," said a court report by the Directorate of Criminal Investigations.
"Pato had initially received a 40-year sentence for defiling a child aged 11 years."
However, upon review, the High Court found that this sentence was inconsistent with the law, which requires life imprisonment for such offenses.
The court highlighted that the mandatory nature of the sentence leaves no room for discretion in such cases.
The High Court determined that the prosecution had proven all elements of the offense beyond a reasonable doubt, including the victim's age, the occurrence of penetration, and the positive identification of the accused.
Justice Micheni stated that the trial court was correct in issuing the 40-year sentence but, citing the infamous Supreme Court Muruatetu decision, decided to revise it to life imprisonment.
The ruling also referenced recent Supreme Court decisions, such as Joshua Gichuki Mwangi NC [2024] KESC 34 (KLR) and Evans Nyamari Ayako, which clarified that statutory minimum sentences, including life imprisonment, are constitutional and enforceable.
The court confirmed that a life sentence indeed means imprisonment for the rest of the convict's life.
Justice Micheni dismissed the appeal, asserting that it lacked merit and reaffirming that the earlier 40-year sentence was inconsistent with the law mandating life imprisonment for the defilement of a child aged 11 or younger.
The boda boda rider committed the offense on November 14, 2022, in the Mikanjuni area of Jomvu sub-county, Mombasa County.
He previously used to take the minor to school and madrasa since she was in nursery school.
However, the court heard that on that day, instead of taking her to school, the perpetrator defiled her on a narrow path leading to the school.
Good Samaritans had to intervene, rescuing the minor, handed the perpetrator over to the police and later took the child to the hospital for medication.
