PATRICK HAMISI v REPUBLIC[2012] eKLR reasonable doubt. The conviction on the second charge is not safe and is hereby quashed and the sentence set aside. Having re-evaluated and analysed the evidence on record, I come to the same conclusion as the trial court that the appellant defiled the complainant and I hereby confirm the conviction on Count 1. The first charge indicates that the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(1) creates the offence of defilement. The other subsections create the sentences to be meted out upon conviction based on different ages. The complainant was about 10 years at the time of the incident. The provision that relates to her age is Section 8(2) but not 8(3). It was an error for the trial court to proceed to sentence under Section 8(3) of the Sexual Offices Act. Section 8(2) reads as follows:“(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” Subsection (3) provides that a person convicted for defilement of a child between the age of 12 and 15 years is liable to be sentenced to not less than twenty years. The trial court had the complainant’s birth certificate which shows she was below 11 years and the appellant should have been sentenced pursuant to Section 8(2). Even under Section 8(3), the sentence allowed is 20 years and above. The sentence of 15 years imprisonment was therefore made in error and it is hereby quashed and set aside. Instead the appellant will be sentenced to serve life imprisonment under Section 8(2) of the Sexual Offences Act. It is so ordered. DATED and DELIVERED this 16th day of December, 2011. R.P.V. WENDOH JUDGE PRESENT: Appellant – present Mr. Omari vfor the State. Kennedy – Court Clerk. While the design, structure and metadata of the Case Search database are licensed by Kenya Law under a Creative Commons Attribution-ShareAlike 3.0 Unported License, the texts of the judicial opinions contained in it are in the public domain and are free from any copyright restrictions. Read our Privacy Policy | Disclaimer http://www.kenyalaw.org - Page 5/5 Powered by TCPDF (www.tcpdf.org)