A guard who was sentenced to nine life imprisonments after pleading guilty to defiling nine girls has got relief after the jail terms were commuted on appeal.
The Court of Appeal substituted the nine life jail terms to 30-year sentences which would run concurrently starting July 9, 2010, when he was convicted.
Kefa Furahe Wanongo, who defiled and threatened to kill the minors aged between three and eight between January and June 2010, could even be out earlier, in 2030, ="https://www.standardmedia.co.ke/article/2000070945/police-hunting-for-paedophile-who-defiled-nine-girls">if he exhibits good conduct in prison< to earn him the one-third remission of his 30-year sentence.
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The former guard at Maranatha Compassion Centre, during mitigation before sentencing, said he was under a spell when he committed the offenses and needed prayers rather than imprisonment.
Justices Hannah Okwengu, Joel Ngungi and Hellen Omondi substituted the life sentences arguing that mandatory life imprisonment provided for in the Sexual Offenses Act, 2006, were not in tandem with the country’s emerging jurisprudence.
Trial magistrate
“It is obvious that when the two courts (Kilgoris Senior Resident Magistrate’s and High Court, Kisii) determined the case, our jurisprudence had not assumed the trajectory it has in the recent past where the minimum sentences in the Sexual Offences Act are no longer considered iron-clad instructions to the sentencing court,” said the trio sitting at the Court of Appeal in Kisumu.
“It is obvious that the learned magistrate considered herself constrained by the mandatory minimum sentence prescribed in Section 8(2) of the Sexual Offences Act in imposing concurrent life sentences. As such, it is equally obvious that both the learned trial magistrate and the learned judge did not consider the mitigation of Wanongo since they considered themselves straitjacketed by the Sexual Offences Act.”
Under the Act, a person who defiles a child aged below 10 is mandated to serve a term of life in prison.
The three judges regretted that the offenses committed by the watchman were heinous, perpetrated in a predatory and depraved manner, and on nine innocent little children left with psychological scars.
They said the life sentence was well deserved but cited a recent decision (Evans Nyamari Ayako -vs- R) where a life sentence was flipped to 30 years’ imprisonment and did the same with each of Wanongo’s nine life sentences.
“The upshot is that Wanongo’s appeal against sentences marginally succeeds to the limited extent that the sentences of life imprisonment imposed on the appellant on each count are hereby translated to a sentence of 30 years' imprisonment,” the judges said.
State lawyer Martin Okango conceded to the appeal by the watchman against his life sentence, also referring to the emerging jurisprudence on mandatory sentences in the Sexual Offences Act.
He cited a similar case in the Court of Appeal in Malindi where the bench also held that the mandatory life sentence was unconstitutional.
In July 2010, Kilgoris Senior Resident Magistrate sentenced Wanongo to nine life imprisonments which were to run concurrently on his plea of guilty to all the nine defilements.
He took the plea in Kiswahili admitting that he defiled N. A, aged 8 a Class Four pupil, L. K, aged 8 (Class Four), V. O, aged 7 (Class One), V. B, aged 7 (Class Two) and B. O, aged 3 (Nursery).
The others were C. S, aged 6 (Nursery), D. O, aged 7 (Class One), E. V, aged 4 (Nursery), and J. A, aged 6 whose Grade was not listed in the court papers.
Court papers show that in four of the instances, the minors were playing at the Maranatha Compassion Centre and he lured them to his house where he forced them to have sexual intercourse.
In the other five instances, the defilement occurred in a nearby bush where he found the girls either playing or running errands.
In mitigation, ="https://www.standardmedia.co.ke/health/amp/western/article/2001463555/64-year-old-man-sentenced-to-30-years-for-defiling-9-year-old">he told the trial court that he was< under a spell.
High Court
Unsatisfied with the sentences which he termed excessive, he moved to the High Court seeking a retrial saying the magistrate's court convicted him without warning of the repercussions of his guilty plea.
His other ground of appeal was that the medical evidence tendered did not support the conviction.
As fate had it, the High Court in Kisii threw out the appeal for lacking merit and subsequently upheld the convictions and sentences on March 28, 2012.
Unbowed, he would approach the Court of Appeal in Kisumu seeking to be freed as the sentences were “overly harsh and excessive”.
He said he was remorseful, had served substantial time in jail, and therefore reformed and should be allowed to go back to the society.
This birthed the December 19 judgment that saw his life sentences commuted to the 30-year jail terms that would run concurrently.
