A man who had been sentenced to 40 years in prison for raping his 90-year-old grandmother will now serve 25 years, following a second appeal.
Appeal Court judges Patrick Kiage, Jamila Mohammed and Mumbi Ngugi noted in their judgment that RK, who was 21 years old, had been charged with incest and not rape, which attracted a more severe punishment.
RK filed the second appeal after his first attempt was dismissed at the High court in Eldoret in July 2015. According to the court documents, RK raped his grandmother on the night of August 5, 2013, at her home in Saimo in Baringo County.
Kabarnet Senior Principal Magistrate Samson Temu found him guilty and sentenced him to 40 years in jail.
In his appeal, RK said the trial court verdict was harsh and he prayed for leniency. He asked the judges to quash his conviction and set aside the sentence.
The prosecution asked the court to dismiss the appeal, maintaining that the sentence was lawful and the appellant had been positively identified by many witnesses during the trial.
The Appeal Court judges said they did not doubt the conviction, as both the trial court and High Court findings proved the case beyond any reasonable doubt.
They, however, said the offence of incest is punishable by imprisonment for a term of not less than 10 years and may be enhanced to life imprisonment only if the complainant is below the age of 18 years.
According to the judges the appellant should have been charged with rape, which would translate to the harsh sentence and not incest, which attracts less severe punishment.
Sexual Offences Act
“The offence of rape presupposes the absence of consent while incest seems to proceed from an assumption that the parties thereto, if adults, consented to the act. To call it incest, under those circumstances, is to introduce a non-existent conceptual consent and to clothe the perpetrator with a cloak of statutory leniency,” stated the judges.
The judges thought the Sexual Offences Act does not give guidance on how far the court can go over and above the minimum sentence, the 40 years look excessive and a departure from statutory guidance.
“...we are not sure that the 40 years imposed by the trial magistrate, which is four times the minimum sentence stated, bears any logical and reasonable relation to that minimum sentence,” they said.