High Court has overturned a life sentence handed to a convict who sodomised a 55-year-old man, terming it too excessive.
Instead, Justice Nixon Sifuna ordered that Joseph Kimani Waithera should serve ten years behind bars.
“As to the sentence of an uncapped, undefined, open-ended, and blanket life imprisonment, I find it not only absurd but also unreasonable. I also find it excessive in the totality of the circumstances of the case, including mitigating, I reduce to a term of 10 years imprisonment,” ruled Justice Sifuna.
Kimani was charged in 2016 with rape and committing an indecent act with an adult. He committed the offense on December 7, 2016, at around 3.30 am.
After two years of hearing, the magistrate’s court found him guilty and sentenced him to life imprisonment.
The victim was code-named PW.
In the case, PW narrated that on the fateful day, he had gone to a bar with his son and they stayed until midnight before they left for home.
He told court that along the way, he met Kimani and another person who robbed him of his money.
The court heard that the convict’s accomplice left and that is when he sodomized PW.
The complainant said he tried to resist, but Kimani overpowered him.
PW was rescued by police officers who were on patrol. He said the officers caught the convict in the act while he was crying in pain.
The following day, PW was taken to hospital.
The complainant told court that there was no bad blood between him and Kimani before the incident.
The second witness was a man codenamed JMM. He told the court that on December 7, 2016, he left work at 3 am.
JMM narrated that two police officers decided to escort him home, but along the way, they heard screams.
He said they saw two men under a shade in a marketplace; their trousers were down to their ankles, and one was in the act.
JMM testified that he had known the victim and the culprit for a long time, and there was no reason to lie to the court.
The other witness was a clinical officer. He confirmed that PW had been sodomized. The clinical officer said the convict was not taken to the hospital for DNA testing.
Police officer, Tom Mukira, was the investigator. He told the court that he recorded statements from the victim and Kimani.
Mukira said the convict was arrested by the Officer Commanding Station and one Corporal Mogaka.
The officer, however, denied asking for Sh 20,000 kickback to release Kimani.
The convict denied the charges saying that on the material day, he had come from work late and slept in a lodging.
He claimed that at around 4 am, he left the lodging and that is when he encountered two police officers who arrested him alongside another person who was released after parting with a bribe.
Kimani told the magistrate’s court that he was arrested for no apparent reason.
He asserted that the offense was committed in a public place and the complainant was drunk.
In his appeal, Kimani blamed his bizarre action on alcohol, he also pointed an accusing finger at the police.
However, Justice Sifuna found his side of the story wanting. He said that Kimani had given a casual statement despite facing grave consequences for his actions.
“What is alarming is the logic and appropriateness of giving an un-sworn statement in answer to such serious charges and imminence to a grave sentence up to life imprisonment,” he said.
