- In his appeal, Mwangi said the prosecution did a shoddy job because their story was riddled with inconsistencies and did not have crucial witnesses to testify.
- His lawyer said that the mandatory nature of the sentence deprived the court the judicial discretion to determine each case on its own merit.
Image: FILE
Man who dragged a 15-year-old girl to a thicket, slapped her, threatened to stab her before raping her will serve five years less of his 20-year sentence in jail.
Joshua Gichuki Mwangi committed the offence on March 8, 2011, in Mathira West, Nyeri. He got convicted by a local magistrate and sent to prison for 20 years.
Court papers indicate that on the fateful day at about 5pm, Mwangi lied to the minor’s mother that her father had sent him to go collect nappier grass alongside the minor.
The minor then followed him to the farm and at around 10pm, as they passed by a bushy place, the appellant slapped her and as she attempted to scream, he produced a knife and threatened to stab her.
Mwangi then went ahead fished a condom out of his pocket, defiled the minor then took her to his house.
A scuffle then erupted between him and his wife, attracting his extended family.
“In the midst of the commotion, the minor ran into the bushes and eventually found refuge at a neighbouring home where she spent the rest of the night. The following morning, on her way back home, the minor met her father and other family members who were looking for her,” the paper reads.
Examination of the minor found there was penetration.
Mwangi’s defence was that he was being wrongfully prosecuted and that he was “maliciously implicated by some of his family members who wanted to take away his land.”
He appealed the conviction and sentencing at the High Court but was unlucky.
At the Court of Appeal, Mwangi said the prosecution did a shoddy job because their story was riddled with inconsistencies, did not have crucial witnesses to testify and the 20 years given to him was harsh and unfair.
He said he was a family man who needed to be back to his children, and he did not have an advocate to argue his case. The court appointed one for him on a pro bono basis.
Mwangi’s lawyer argued against the mandatory sentence provided by the Sexual Offences Act, the parent law used to nail him.
He said the mandatory nature of the sentence deprived the court the judicial discretion to determine each case on its own merit and come to a conclusion on what sentence to impose.
In the October 7 judgment, a three-judge bench agreed with the court-appointed lawyer of the convict, ruling that the mandatory nature of the sentence was unconstitutional
“The imposition of mandatory sentences by the Legislature conflicts with the principle of separation of powers," the judgment reads.
"Circumstances and facts of cases are as diverse as the various cases and merely charging them under a particular provision of laws does not homogenise them and justify a general sentence.”
The court reduced the 20-year sentence to 15, including the years he had spent in detention.
(edited by Amol Awuor)