A High Court in Mombasa has served an inmate life imprisonment following the rejection of his 40-year sentence appeal.
Mr Mwarabu Omar Pato was convicted of defiling a minor child who was 11 years old or younger.
Lady Justice Wendy Kagendo Micheni replaced Pato’s 40-years sentence with the mandatory life imprisonment stipulated under Section 8(2) of the Sexual Offences Act.
The appellant had initially been sentenced to 40 years.
Upon review, the High Court determined that the original sentence was inconsistent with Section 8(2) of the Sexual Offences Act, which mandates life imprisonment for such offences.
The court highlighted that the mandatory nature of the sentence allows no discretion in cases like this.
Omar had appealed against both his conviction and the sentence handed down by Senior Resident Magistrate Hon. David Odhiambo.
However, the High Court found that the prosecution successfully demonstrated all elements of the offence beyond a reasonable doubt.
It includes the victim’s age, the occurrence of penetration, and the positive identification of the accused.
Justice Micheni stated that while the trial court was correct to impose the 40-year sentence, she would follow the precedent set by the Supreme Court in the Muruatetu decision and revise the sentence to life imprisonment.
In her ruling, she also referenced recent Supreme Court cases — Joshua Gichuki Mwangi NC [2024] KESC 34 (KLR) and Evans Nyamari Ayako; “clarifying that statutory minimum sentences, including life imprisonment, are constitutional and enforceable.”
The court reaffirmed that a life sentence means imprisonment for the remainder of the convict’s life.
Hon. Justice Micheni dismissed the appeal, declaring it lacked merit, and emphasized that the original term was inconsistent with the law, which prescribes a mandatory life sentence for the defilement of a child aged 11 or younger.
The offence occurred on November 14, 2022, in the Mikanjuni area of Jomvu sub-county, Mombasa County.
The convict, a boda boda rider, had been taking the minor to school and madrasa since she was in nursery school.
On that day, instead of taking her to school, he defiled her on a narrow path leading to the school.
Fortunately, Good Samaritans rescued the minor and notified the police, who then took the child to the hospital for treatment.
The case was prosecuted by Prosecution Counsel Mr. Benard Ngiri and Principal Prosecution Counsel Ms. Barbara Sombo at the magistrate court.
