Judge faults law prescribing fixed penalty for child abusers

A High Court judge has faulted a law that prescribes life imprisonment and imprisonment for people found guilty of defiling minors aged 11 years and below, saying it is unconstitutional.

Justice Francis Gikonyo of the Meru High Court said the section “couched in mandatory terms” hindered trial courts from meting varying sentences based on the case circumstances, mitigation and aggravating factors.

Quoting a Supreme Court decision featuring Francis Karioko Muruatetu and another versus Republic (2017), Justice Gikonyo said, “A law that fetters courts’ discretion in sentencing is unconstitutional.”

Section 8(2) of the Sexual Offences Act prescribes a life sentence for a person found guilty of defiling a child aged 11 years or below.

In his ruling reducing the jail term for David Murerwa Kirigia from life to 25 years, Justice Gikonyo said the static law hindered magistrates from exercising their discretion in sentencing.

Kirigia, a gardener, was sentenced to life imprisonment for defiling a seven-year old Grade Three pupil.

UNCORROBORATED EVIDENCE

However, he appealed the decision by Isiolo Chief Magistrate Samuel Mungai based on six grounds, claiming that the court was influenced, ignored his defence and relied on uncorroborated evidence, specifically on identification.

But Justice Gikonyo dismissed all the appeal grounds, saying the prosecution had proved beyond reasonable doubt that the child had been defiled, and that evidence placed him at the scene of the crime.

“The trial magistrate did not err in holding that the identity of the appellant as the perpetrator was clearly established by the prosecution. The evidence had no inconsistencies,” he said.

He, however, faulted the jail term, saying the magistrate could have imposed it since it was fixed, thus unfair under varying circumstances.

“I have stated before that such   laws produce prejudice upon the category of persons charged with the offence to which the penalty applies,” he said.

So he sentenced Kirigia to 25 years’ imprisonment, backdated to August 30, 2019, when Murerwa was first sentenced.

DEFILING MINOR

Kirigia was accused of defiling the minor on diverse dates between August 7 and August 8, 2018, in Muthaiga, Nanyuki township, Laikipia county.

The case was initially filed at the Nanyuki Law Courts but the prosecution successfully applied for it to be moved to Isiolo, where the girl’s mother was working.

The court heard how the man’s first attempt to defile the girl failed, but he succeeded on the second attempt.

Ms Nancy Muthoni, a nurse at the Nanyuki Teaching and Referral Hospital, testified that the girl had, indeed, been defiled, while the girl positively identified Kirigia as the assailant.

In his defence, Kirigia claimed he was being framed since he and the girl’s mother were lovers but he declined to marry her, hence the bad blood.