•The victim was a 9-year-old girl who said her attacker had threatened to kill her.
•Judge said the law requires life sentence in case of defilement, ruling the lesser 21-year term was illegal.
Image: FILE
A man sentenced to 21 years for defiling his neighbour’s 9-year-old daughter in Kariobangi will now spend life behind bars after he appealed.
James Munene was sentenced to 21 years in 2017 by a Makadara court after he was found guilty in 2010.
He appealed to the High Court.
Munene said the trial magistrate erred in law by finding that the prosecution had proved its case beyond a reasonable doubt. He said penetration was not found.
He also said the minor was older than nine, as alleged by the prosecution.
High Court Judge Ngeny’e Macharia ruled on Wednesday that the case had been proved beyond a reasonable doubt.
“In totality, the court finds that the appeal has no merit and the same is dismissed. I accordingly uphold the conviction," he said.
The judge said that Section 8(2) of the Sexual Offences Act is couched in mandatory terms, saying the offence of defiling a child aged 11 years of less shall be sentenced to life imprisonment.
Justice Macharia said Munene was aware of the likelihood of enhancement of the sentence before making his appeal. He said the trial court had imposed an illegal sentence.
"This court must, as its duty, correct this illegality. Accordingly, I set aside the 21 years and substitute it with an order that the appellant shall serve life imprisonment," the judge ruled.
The minor gave an unsworn statement that on June 7, 2010, she was sent to a shop to buy sugar by her mother when she met Munene. After purchasing sugar, Munene called to send her to the same shop for cooking oil.
She testified that Munene took her upstairs to an isolated abandoned building where he defiled her. She said he tore her underwear with a blade.
The girl felt a lot of pain but didn't scream as Munene had threatened to kill her if she did.
The court was told that the same evening, she started bleeding but was afraid to tell her mother.
The next day she told her teacher who called her mother. She was rushed to the hospital and reported great pain.
Dr Zephaniah Kamau, a police surgeon, examined the girl and noted bruising and discharge consistent with infection caused by defilement.
Munene said his family and the minor’s family had a dispute and the minor's family had instigated his arrest.
The court ruled, however, there was proof of defilement confirmed by Nairobi Women's Hospital.