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Supreme Court judges (from left) Isaac Lenaola, Smokin Wanjala, Philomena Mwilu (DCJ), Martha Koome (Chief Justice), Mohamed Ibrahim, Njoki Ndung’u and William Ouko on March 31, 2022. Justice Mwilu was not on the bench.
Not so fast, Joshua Gichuki Mwangi.
Gichuki, a defilement convict who had completed his prison term, will be heading back to jail for another five years after the Director of Public Prosecutions, Renson Ingonga, successfully appealed the decision.
The Supreme Court was clear that the Court of Appeal, which had reduced his prison term from 20 to 15 years, had no jurisdiction to interfere with the sentence as passed by the trial magistrate and later upheld by the High Court.
“The consequent effect of our decision herein of setting aside the judgment of the Court of Appeal would be reinstating the initial sentence of 20 years and it is upon the relevant organs of State to abide by our decision,” the apex court presided by Chief Justice Martha Koome directed.
The judges added, “We take cognizance of the fact that upon delivery of the judgment of the Court of Appeal reducing the Respondent sentence from 20 years to 15 years, the Respondent had since been released from prison.”
The evidence presented in court showed that Gichuki was charged before a Karatina court on March 11, 2011, with defilement of a minor contrary to Section 8(1) of the Sexual Offences Act.
The charge sheet stated that he defiled a 15-year-old girl on March 8, 2011, in the Ngorano area of Mathira.
On the fateful day, Gichuki went to the girl’s home and lied to her mother, saying that the girl’s father had instructed her to accompany him to cut napier grass.
The mother gave him the go-ahead and provided two donkeys for the job.
The girl proceeded with him to the farm where he left her alone for a while, only to return moments later and instruct her to go to his home.
Stab her
But before reaching his home, they reached a bushy area where he slapped and defiled her while threatening to stab her.
He then took the girl to his house and beat his wife, ordering her to sleep on the floor so that he could sleep with the girl in the bed.
The wife raised the alarm, attracting his extended family.
In the ensuing scuffle, the minor escaped and sought refuge at a neighbouring home, where she spent the rest of the night.
On her way home the following day, she found her father and family members looking for her.
The minor informed her family of her ordeal, was taken to the nearby police station, then to Karatina Hospital where she was treated and issued with a P3 form.
Gichuki denied the claims, stating that the whole incident was a plot hatched by his family members to implicate him and grab his land.
The trial court rejected his defence, stating that the prosecution had proven his guilt beyond reasonable doubt.
On October 17, 2011, the court handed down a 20-year prison sentence.
His appeal to the High Court was unsuccessful, and he appealed to the Court of Appeal, where he persuaded the judges to reduce his sentence by asking them to allow him to rejoin his family.
But the Supreme Court said the Court of Appeal had failed to clarify the considerations that went into its decision to reduce the sentence.
“The reasoning behind the court's decision is called into question by this omission as sentencing is a matter of fact unless an Appellate Court is dealing with a blatantly illegal sentence which was not the case in the present matter,” CJ Koome and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola said.
The judges said the sentence imposed by the trial court and upheld by the High Court was lawful and would remain lawful as long as Section 8 of the Sexual Offences Act remained in force.
