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|Case Number:||Criminal Appeal 108 of 2009|
|Parties:||BAYA YAA v REPUBLIC|
|Date Delivered:||07 Oct 2011|
|Court:||High Court at Malindi|
|Judge(s):||Hellen Amolo Omondi|
|Citation:||BAYA YAA v REPUBLIC  eKLR|
|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
CRIMINAL APPEAL NO. 108 OF 2009
The complainant screamed and people ran to her rescue. Appellant was beaten and escorted to Malindi Police Station where he was rearrested. The complainant sustained slight injuries.
He now appeals both against the conviction and sentence in the following amended grounds;-
2. The Trial Magistrate convicted him without giving him enough time to reflect on the charge.
Appellant filed written submissions saying that the sentence was unlawful because at the provisions of section 4 of the Sexual Offences Act provide for a five year sentence which can be enhanced to life imprisonment, section 389 of the Penal Code provides that any person who attempts to commit a felony or misdemenour is liabel to one half of such punishment as may be provided for, and if the penalty is death or life imprisonment, then the sentence should not exceed life imprisonment. It is the appellant`s argument that he should not have been sentenced to more than seven years imprisonment, and in any event, for such an attempt, a five year sentence should have been the sentence. His argument is that the court ought to have considered the less punitive sentencing option and he refers to the decision in EVANSON MUIRURI GICHURE V R CR APP NO. 277 of 2007.
“Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence of attempted rape and is liable upon conviction for imprisonment for a term which shall not be less than five years BUT which may be enhanced for life”
“Any person who attempts to commit a felony or a misdemeanor is guilty of an offence and is liable, if no other punishment is provided, to one half of such punishment, as may be provided for the offence attempted but if that offence is one punishable by death or life imprisonment, he shall not be liable to imprisonment for a term exceeding seven years”
The rest of the arguments by the appellant do not hold water, his plea was unequivocal, the charge was read to him and the language used in court shows there was interpretation in English-Kiswahili and even on appeal his language of choice to conduct the appeal was Kiswahili. The quest for provision of an advocate by the State has no basis as the same would not have arisen in 2009 under the old constitution – the provision he seeks to rely on had not come to life then and the 2010 Constitution does not apply retrospectively. So the appeal succeeds and the sentence is reduced accordingly to five years imprisonment.
H A OMONDI