A religious teacher sentenced to 100 years in jail for defiling a pupil was once again reprieved on Friday, when the High Court further lowered the sentence to 15 years.
Issack Mohammed was convicted of defiling the minor on March 15, 2011 at a school in Wajir South, Wajir County.
It was the second reprieve for him as the High Court in Nairobi in 2013 quashed the original punishment and replaced it with a life sentence.
Mr Mohammed filed another application in 2017, arguing that though life imprisonment is the mandatory sentence in law, cases need to be based on their own merit.
Section 8(2) of the Sexual Offences Act of 2006 states that "a person who commits an offence of defilement with a child aged below 11 years shall, upon conviction, be sentenced to imprisonment for life".
But Mr Mohammed told Justice Charles Kariuki at the High Court in Garissa that the mandatory aspect of sentencing was unconstitutional, making reference to the Supreme Court's decision in the infamous Muruatetu case.
The convict argued that substitution of the 100-years sentence with life imprisonment was unconstitutional and that the High Court was mandated to interfere with the same sentence.
Justice Kariuki, after revising the sentence to 15 years, noted that the term would run from April 21, 2011 when the convict was sentenced by Wajir Principal Magistrate Linus Kassan.
In her testimony, the victim said Mr Mohammed was their 'Duksi’ teacher and that she knew him very well.
She told the court that on the day of the attack, she remained behind after the other children left because he told her she did not know how to read.
The minor said the teacher later put her on a mat, covered her face with a blanket, removed her trousers and then committed the crime, also using a stick.
She said he covered her mouth tightly and warned her against reporting him to anybody, saying if asked, she should say she was pricked by a stick.
But the girl's parents noticed something was amiss so they took her to hospital, where an examination found she had been defiled.
Clinical officer Kemel Abdirego, produced a P3 form in support of his findings after the medical analysis.
He testified that he also examined Mr Mohammed and found that he had a sexually transmitted disease, which he had passed on to the pupil.
Mr Mohammed contended the legality of his conviction and sentence on grounds that there was no satisfactory proof of the minor's age.
While questioning the credibility of evidence presented by the prosecution, he emphasised that age is an essential aspect in cases on sexual offences.
He submitted that the only evidence on record about the age was that of the complainant and the clinical officer.
The teacher noted the need to scientifically establish the age of a victim of a sexual offence under the Sexual Offences Act , saying failure to do so should result in an acquittal.
But Justice Weldon Korir, in his judgement of November 27, 2013 on Mr Mohammed’s appeal, held that circumstances under which criminal trials are conducted cannot be ignored.
“In some parts of this country, children are born at home and there are no clinic cards or birth certificates. Saying that there is need to produce documentary evidence can result in injustice to victims of sexual offences," the judge said in a decision delivered by Justice Stella Mutuku on December 3, 2013.
"Where documentary evidence is not available, an investigating officer should present a child victim to a medical officer for age assessment."
The court noted, however, that the prosecution was obliged to prove each and every element of the charge beyond reasonable doubt.
“It is unfortunate that the prosecutor did not examine both the complainant and her father in a manner as to bring out the age of the complainant,” he said, but added that other parties had stated the girl's age.
The complainant's evidence was corroborated by that of her father and the clinical officer.
While replacing the 100-year sentence with life imprisonment, the judges noted that the magistrate’s ruling was not in law.
“It is noted that the appellant was sentenced to 100 years' imprisonment. This indeed is probably an imprisonment for life but that is not the sentence provided by the law. The sentence provided by the law for the offence committed by the appellant is life imprisonment,” stated Justice Korir.