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(2011) JELR 105357 (CA)

Court of Appeal  •  Criminal Appeal 231 of 2010  •  4 Mar 2011  •  Kenya

Riaga Samuel Cornelius Omolo, Alnashir Ramazanali Magan Visram, Philip Nyamu Waki



The appellant was tried and convicted by Machakos Senior Resident Magistrate (S.A. Okato) for the offence of defilement of a girl under the age of 16 years contrary to section 145 (1) of the Penal Code. Upon his conviction, he was sentenced to serve 30 years imprisonment. His first appeal to the superior court did not challenge the conviction and was limited to the sentence which the appellant contended was manifestly harsh and excessive. The superior court, (Hatari Waweru J) re-examined the sentence and found, correctly in our view, that the sentence was unlawful. That is because the trial court considered the sentence on the basis of amendments made by Parliament to sections 145 (1) of the Penal Code by Act No. 5 of 2003 to increase the age of the girl to 16 years and to increase the maximum sentence to imprisonment for life with hard labour. That amendment however came into effect on 25th July, 2003 whilst the offence facing the appellant was committed between …

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