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|Case Number:||Criminal Appeal 59 of 2008|
|Parties:||STANLEY NKUNJA v REPUBLIC|
|Date Delivered:||09 Dec 2010|
|Court:||High Court at Meru|
|Judge(s):||Jessie Wanjiku Lessit|
|Citation:||STANLEY NKUNJA v REPUBLIC  eKLR|
Criminal prcatice and procedure-defilement-defilement of a girl under the age of 11 years-where the appellant was convicted of the offence and sentenced to 20 years imprisonment-appeal against sentence-whether 20 years imprisonment was life imprisonment as provided under section 8 (2) of the Sexual Offences Act-whether the sentence imposed on the appellant was illegal-Sexual Offences Act section 8 (1) (2)
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
AT MERU CRIMINAL
APPEAL NO.59 OF 2008
The appellant was convicted and sentenced to 20 years imprisonment by Meru CM’s Court for the offence of Defilement of a girl under the age of 11 years contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act.
The appellant in his initial oral submissions stated that he was appealing against the sentence only. However he later changed and submitted that the charge was a fabrication by his step – brother and that the motive was to take away the share of his land. The appellant explained that the harassment of his family began soon after their father’s death in 1984.
The state was represented by Mr.Musau, learned state counsel. In His submission the state Counsel stated that the sentence for defiling a child aged below 11 years was life imprisonment. Mr.Musau urged the court to increase the sentence meted out by the lower court to life imprisonment in order to correct it in line with the law.
I have considered the evidence which was adduced before the court and subjected it to fresh analysis and evaluation as required of this court as a first appellate court. In OKENO VS REPUBLIC the court observed:
(See Peter v. Sunday Post, (1958) EA 424)”.
I am aware that the appellant stated that he was appealing against the conviction only. However I have decided to go through the entire record of the lower court to satisfy myself that the correct conclusion was arrived at by the learned trial magistrate.
The evidence against the appellant was by the child complainant who was aged nine years at the time. Her evidence was clear direct and simple. The learned trial complaint who was aged nine years at the time. Her evidence was clear, direct and simple. The learned trial magistrate conducted a voice dire examination before taking her evidence on oath. Her evidence was that her mother, PW2 sent her to their hotel near home to get a sufuria. That she met the Appellant, a tenant at the hotel. She testified that he grabbed her, took her to his room, held her mouth, removed her pant, and inserted his male organ into her before releasing her.
The complainant met with her mother PW2 as she left the appellant’s room. PW2’S testimony was that she met the appellant coming out of the hotel followed by the complainant. The complainant immediately told her whether appellant had done to her. The complaint’s mother went immediately reported to the sub-Area, PW3, who had the appellant arrested.
The Clinical Officer, who examined the complaint that there was incomplete penetration, bruises on right labia minora and partially broken hymen. Under S 2 of the sexual Offences Act penetration is defined as the partial or complete insertion of a genital organ of a person into the genital organs of another person. Given the suffered by the complaint in this case penetration was clearly proved beyond any reasonable doubt.
The appellant denied the offence and stated that the landlord had threatened him with dire consequences because of demanding to be paid ksh.490/= for harvesting miraa.
The complainant’s evidence did not need corroboration so long as the trial court found her to be truthful. S.124 of Evidence Act in the Proviso therefore takes away any requirement for corroboration of the evidence of a child victim involving sexual offence so long as the court believes such evidence of her mother PW2 and the clinical officer PW4.
I am satisfied from the evaluation of the evidence that the complaint’s evidence was corroborated in every material particular. PW2, her mother, saw accused leaving the hotel with the complainant following him.
There was no one else there. The complainant had gone for a short time, if anything happened to the complaint it is very clear that the appellant had to be the culprit. The complainant’s evidence was consistent that it was the appellant who defiled her. The appellant was well known to her. There is no chance that the complainant would be mistaking the appellant’s identity.
The second corroboration was by the clinical officer who examined the complainant. The clinical officer notes were reduced by PW4 Ali Gebaba on behalf of his colleague Bania Mutile. The examination revealed that the complaint had been defiled. The injuries found on the complainant meets the requirements of s 8(1) and S 2 of the sexual offences act.
As regards the sentence S.8 of Sexual Offences Act provides for a sentence of life imprisonment for defilement of a girl who is below the age of 11years.
The appellant was sentenced to 20 years imprisonment.
The issue is whether court has jurisdiction to interfere with that sentence.
Mr. Musau has urged the court to enhance the sentence as 20 years’ imprisonment does not in his view meet the requirements of S8 (2) of the Act.
S354 (3) (b) of the CPC provides;
Under the provisions of the CPC has power to either increase or reduce the sentence of an appellant who has appealed against the sentence in the case of FATEHALI V REPUBLIC (1972) EA 158 the court of Appeal for Eastern Africa, the predecessor of the current court of Appeal held;
An issue has risen in this court whether 20 years imprisonment meets the sentence as provided under S 8 (2) of the Sexual Offences Act. In order to answer the question one has to see the spirit of the legislature within the Act. Under S 8 of the act minimum sentences are provided for defilement of children of different ages. The younger the child victim, the severer the sentence.