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|Case Number:||Criminal Appeal 98 of 2010|
|Parties:||GEOFFREY CHEPKAMAR v REPUBLIC|
|Date Delivered:||24 Nov 2011|
|Court:||High Court at Kitale|
|Judge(s):||Stella Munai Muketi|
|Citation:||GEOFFREY CHEPKAMAR v REPUBLIC  eKLR|
|Case History:||Being an appeal from the original conviction and sentence by G.M.A. Ong’ondo – PM. In Criminal Case No. 743 of 2008 delivered on 17th August, 2010 at Kapenguria|
|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
1. The appellant GEOFFREY CHEPKAMAR, was charged with the offence of defilement of a girl aged 16 years contrary to section 8 (4) of the Sexual Offences Act No. 3 of 2006. The information of the charge stated that on the 29th day of October, 2008 in West Pokot District within the Rift valley province, intentionally and unlawfully had carnal knowledge of N.C, a girl aged 16 years. The appellant pleaded not guilty to the charge and was convicted and sentenced to fifteen (15) years.
The appellant also put in submission where he stated that that there is an error on the date of the charge sheet and his being arraigned in court. That a key witness was not called. That the investigating officer did not visit the scene. That there was no proof of the exact age of the complainant. That failure to call all the witnesses was fatal to this case. That he was not examined by a medical person. That he had not been served with court proceedings that the evidence was contradictory.
The facts of this case is that the complainant and her sister were at the shopping centre. That the accused a married man told her that they go and watch a movie. That he took her to his house and defiled her.
The accused person’s defence was that he is aged 31 years old, that on the material day he had stayed at the school till 5 p.m. and went home and slept. He denied the offence
This has been restated in the case of GABRIEL KAMAU NJOROGE vs REPUBLIC (1982 -1988) KAR 134where the court held that:-
“It is the duty of the first appellate court to remember that parties are entitled to demand of the court of first appeal a decision both on the question of fact and of law and the court is required to weigh conflicting evidence and draw its own inferences and conclusions bearing in mind always that it has neither seen nor heard the witnesses and make allowance for this neither seen nor heard the witnesses and make allowance for this”.
The same ought to have been raised at the earliest opportunity. This though does not negate his right in any way. It would have given the state upon whom the onus to offer an explanation as to the delay is given. An opportunity to explain the delay The appellant can institute a cause of action separately for the breach of the right given the stage where the matter has reached.
Was the charge sheet defective? It was not. It was properly prepared in accordance with section 137 of the Criminal Procedure Code Chapter 75 of the Laws of Kenya and did not in anyway offend the provisions of the said section. The charge sheet was properly framed and included are the ingredients.
The charge sheet was not defective and it complied with the provisions of section 134 and 137 of the Criminal Procedure Code Chapter 75 of the Laws of Kenya
His defence and submissions were considered at page 3 of the judgement. See paragraph 2. The burden of proof was not shifted the conviction was based on sound and sufficient evidence.
There may have existed a dispute between the father of the complainant and the accused person but from the evidence on record an offence was committed.
The conviction is safe. The sentence is reasonable and according to the law.
READ, DATED & SIGNED IN THE OPEN COURT THIS 24TH DAY OF NOVEMBER 2011