How a pre-sentencing report saved man, 58, from life imprisonment
By Jack Murima
| December 13th 2019
A man has been spared a possible life jail term for defiling his six-year-old grandchild, thanks to a favourable pre-sentencing report.
Instead, he has been jailed for five years despite the prosecution submitting sufficient evident.
However, Kakamega Senior Resident Magistrate Erick Malesi noted that the pre-sentencing report tabled by the probation office was favourable to FA.
FA, aged 58, was charged, tried and convicted for defiling his grandchild on an unknown date in July 2017 in Shinyalu sub-county.
He was charged under Section 8(1) and (2) which provides a minimum sentence of life in jail for defiling a minor below 11 years.
In the report signed by Bernard Wangatia from Kakamega probation office, the accused said he did not remember clearly what happened since he was not in his right state of mind due to intoxication.
“Since the offender is quite remorseful and asks for forgiveness, the fact that the trial process has been an embarrassment to him, a situation that has tortured him psychologically, we recommend that he be considered for a non-custodial sentence subject to your discretion,” read the report in parts.
The report further indicated that the complainant’s mother applied for a lenient sentence, noting the accused has two children in secondary school whom he’s taking care of.
In her evidence-in-chief, the minor told the court that the accused, on the fateful night, demanded for sex. She tried to resist but was overpowered.
When he was done, the accused warned her not to reveal to anyone what had happened.
However, the minor narrated the ordeal to her grandmother.
Through lawyer Siro Ombaye, FA, a father of seven, sought for a non-custodial sentence saying he suffers from high blood pressure, asthma and weak knee joints following a previous attack by thugs.
The prayer was objected by the Director of Public Prosecutions (DPP).
“We object a non-custodial sentence due to the nature of the offence. The victim was of tender age and had to be removed from the physical custody of the accused. A custodial sentence would suffice a deterrent measure,” said prosecution counsel Hilda Omondi.
The probation report indicated the community, though not happy with the defilement, sympathise with the accused and wanted him released.
“It is indicated in the report that the accused is remorseful. However, the offence was perpetuated against an innocent victim and a custodial sentence would suffice in the circumstance. Accused to serve five years imprisonment,” said Mr Malesi.
He granted the convict 14 days to lodge an appeal at the High Court.
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