MY VIEWS ON THE 15 YEARS IMPRISONMENT SENTENCE ON JOSEPHINE KHASOYA WANDERA FOR DEFILING THE 16 YEAR OLD MINOR
By JV Owiti
Having finally had the opportunity and the benefit of going through the decision of the learned Trial Court in Kisumu CMCR 4/2017 – Republic vs. Josephine Khasoya Wandera, I hereby reiterate with certainty my earlier views on the same in various other platforms as follows:
PLEA OF NOT GUILTY
She did not plead guilty to the charges. The matter went through trial and those were her words in defence. The issue of a plea being un/equivocal does not therefore arise.
The conviction was safe and may not be successfully challenged on appeal. The learned magistrate perfectly comprehended and appreciated the facts of the case and correctly and or properly applied the law to the said facts.
The accused person was understood to raise the defence of having believed that the victim was a minor. This defence is availed under section 8(5) of the Sexual Offences Act, No. 3 of 2006 (hereinafter referred to as the SoA).
The trial court again appreciated and considered the said defence under section 8(5) of the SoA. However, and unfortunately so, the accused person, as the Court correctly noted, failed to demonstrate any steps she may have to ascertain that the victim was an adult as is the requirement of the law under section 8(6) of the SoA.
It is however my view that the sentence meted out against the convict was excessively too harsh in the circumstances and can be tampered with on appeal. This is one matter that a non-custodial sentence should have been meted out.