Court of Appeal quashes life sentence slapped on rapist

SAM KIPLAGATBy SAM KIPLAGAT
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Raymond Waweru Mwangi was charged with defiling a five-year-old girl 14 years ago. And after a full hearing, the trial magistrate found him guilty, convicted him under the Sexual Offences Act, and sentenced him to 15 years in prison.

He appealed but was not lucky as High Court Judge Msagha Mbogholi enhanced his sentence to life imprisonment.

Still not satisfied, or probably still holding onto hope, he appealed. On this second try, he was successful. Soon, Mwangi will be walking to freedom after the Appellate Court found that he was charged and sentenced under an act that was not in existence then.

WIDER IN SCOOP

To sum it up, the court applied the law retrospectively. Whereas the Sexual Offences Act came into operation in July 2006, Mwangi committed the act in July 24, 2005.

He was charged before a senior resident magistrate’s court in Makadara on August 5, 2005. The charge was that on July 24, 2005, he had carnal knowledge of a girl aged five and a half years. He pleaded not guilty to the offence.


The child’s mother was the first to take to the witness stand and gave her evidence before the case was adjourned. But when the trial resumed, the prosecutor applied to substitute the charge. This was because the Sexual Offences Act, which created sexual offences of a different nature and wider in scope and also imposed more severe sentences than the Penal Code, was now in place.

The application by the prosecutor was allowed and the charge was substituted. In the new charge, the appellant was charged with the offence of defilement of a child contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act.

Alternatively, Mwangi was charged with committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act. After the new charges were read to him he pleaded not guilty.

Under the previous charge, any person who had carnal knowledge of a girl under the age of 14 years was guilty of a felony and liable to imprisonment with hard labour for 14 years, together with corporal punishment.

But under the new Act, Mwangi was charged with defilement of a girl contrary to section 145(1) of the Penal Code. He was also charged with an alternative count of indecent assault of females, contrary to section 144(1) of the Penal Code.

CHARGE SUBSTITUTED

The trial court heard that on the fateful day, at about 4pm, Mwangi, who was running a kiosk near the girl’s home, called the minor who was playing with two other girls.

He took them to a house and, on entering, asked the two other minors to leave. He then defiled the complainant.

The following morning the girl was heard crying as she was being bathed by her mother.

She was taken to a doctor and it was confirmed that she had been defiled. Mwangi was arrested the same day and charged.

After the appeal before the High Court that earned him a life sentence, Mwangi went to the Appellate court.

Court of Appeal judges Erastus Githinji, Hannah Okwengu and Kantai ole Sankale, in their judgment said convicting and sentencing Mwangi under the Sexual Offences Act was unlawful.

The Court of Appeal quashed the conviction and the life imprisonment and substituted the charge to defilement.

It directed that the 15 years in prison were to start running from 2009 when he was sentenced by the trial magistrate.