1.The Appellant herein, Yussuf Mureithi Kinini, was on 24/08/2018 convicted after trial of two counts of sexual assault contrary to section 5(1) (b) & (2) of the 3 Sexual Offences Act, 2006 (the Act). It was alleged in the particulars of the offences that on 06/11/2017 at unknown time in Laikipia County within the Republic of Kenya, he unlawfully touched the vaginas, respectively, of the two children named in the charges, aged 6 years and 3½ years with his finger and tongue. He was sentenced to 10 years imprisonment on each count. As the trial court did not state that the sentences were to run concurrently, they would have to be served consecutively under the law.
2.Being aggrieved by the said convictions and sentences, the Appellant appealed and raised various grounds of appeal, including this one: that the charges were incurably defective. I will look at this ground first. The Appellant submitted that the charges were incurably defective for the reason that the particulars of the offences and the evidence adduced were at variance with the offence charged. Learned counsel for the Respondent submitted that there was no defect in the charges.
3.The rules for the framing and contents of charges and informations are set out in sections 134 and 137 of the Criminal Procedure Code, Cap 75. Section 134 provides -In determining whether a charge is defective or not, the Court of Appeal in Sigilani –vs- Republic (2004) 2 KLR, 480 held -In the case of Isaac Omambia v Republic,  eKLR, the same court made reference to section 134 aforesaid in the following terms -
4.In Peter Ngure Mwangi v Republic  eKLR the Court of Appeal stated -
5.Looking at the charges in the present case, sexual assault contrary to section 5(1) (b) & (2) of the Sexual Offences Act in the two counts, they indeed contain a statement of the offence in clear terms. That offence is -(1)Any person who unlawfully(a)…;(b)manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault.”
6.The charges also contain particulars of the offences. Analysis of those particulars vis-a-vis the statement of offence shows clearly that the particulars do not disclose the offence of sexual assault charged. They disclose the offence of indecent act with a child contrary to section 11(1) of the Act. The evidence adduced by the prosecution also established that offence of indecent act with a child, not the offence charged. The charges should have been appropriately amended. They were never amended.
7.The charges were thus incurably defective. The situation cannot be salvaged as the offence of indecent act with a child, though cognate to that of sexual assault, is not minor to it because they essentially carry the same punishment.
8.In view of the foregoing, the Appellant’s conviction cannot be sustained. I therefore find merit in this appeal and it is hereby allowed. Consequently, the Appellant’s convictions are hereby quashed and the sentences set aside. He shall be set at liberty forthwith unless otherwise lawfully held. It is so ordered.