- JMI committed the offence on the night of August 13, 2010, in a village in Kakamega.
- The daughter, named in the papers as JK, was a sleep alongside her two younger sisters when her father called her.
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A father who defiled his nine-year-old daughter suffering from developmental disabilities will spend the rest of his life in prison after an appeals court upheld the sentence.
JMI committed the offence on the night of August 13, 2010, in a village in Kakamega.
The daughter, named in the papers as JK, was a sleep alongside her two younger sisters when her father called her.
She went to her father's bedroom, where he defiled her.
JK screamed and the man beat her up. Thereafter, she ran away to her uncle’s house where she spent the rest of the night. The mother was away at the time.
The next morning one of her teachers noticed that her eyes were swollen and she was crying.
After some hesitation, JK opened up and informed the teacher that her father had on the previous night defiled her.
The child explained it was not the first time, and that her mother was not staying with them.
Court papers say the child victim “has some element of mental disability.”
“She is nine years old and was, at the material time, in Class 1, since she suffers from developmental disabilities. She was declared a vulnerable witness by the court, and her evidence was taken through the assistance of an intermediary, her teacher.”
But teh father denied committing the offence when arraigned at the magistrate's court.
He stated that on August 14, 2010, he had come home at around 4pm and learnt from JK that a teacher had taken her to hospital.
He was not alarmed because the child was a beneficiary of a development project in the area, and she had been coughing and her eyes would also sometimes be swollen. He thought the medication JK was given was for the cough.
He said later he heard of allegations that he was mistreating his children.
He denied the charge, stating that there was a grudge between him and his brother Simon; and that there was a plan to take away his land because he only had daughters.
He added that if JK was defiled, it could have happened in school. He claimed the teacher bought JK new shoes, so she could testify against him.
The court dismissed his claims, upheld the evidence against him and delivered a guilty verdict. JMI was sentenced to life imprisonment.
He appealed the High Court in vain. Later, he proceeded to the Court of Appeal to challenge the constitutionality of the indeterminate life sentence especially for sexual offences.
The court delivered its judgement on August 30, that it had no jurisdiction and powers to alter the convict’s sentence and that it was not able to render an opinion on the legality of indeterminate sentences for such offences.
“Moreover, although the appellant was sentenced to an indeterminate life sentence, he did not raise any issue before the High Court regarding the constitutionality of the indeterminate life sentence. Before us, the appellant has raised the issue in his written submissions.
“However, the constitutionality of the indeterminate sentence of life imprisonment under Articles 28 and 29(f) of the constitution is different from challenging the constitutionality of minimum sentences under the Sexual Offences Act for fettering the discretion of the sentencing court.”