Francis Kipsang Chemase v Republic
The bottom line
#Kenya's Court of Appeal upheld a conviction for attempted defilement even though the man was charged with defilement, but cut his sentence from 20 to 10 years.
What this practically means
#Executive summary
#Key legal issues
#Conviction on a cognate offence not charged
The trial court properly convicted the appellant of attempted defilement under Section 180 CPC despite being charged with defilement, as attempted defilement is a cognate and less serious offence.
The prosecution did not prove penetration, so defilement failed. However, PW1 and PW2's testimony showed the appellant lured the child, removed his trousers, and lay on him before being interrupted - an overt act immediately connected to intended penetration. Section 180 permits conviction for the attempt where not charged, and precedent confirms attempted defilement is cognate to defilement.
Sufficiency of evidence and failure to call certain witnesses
Failure to call the persons who took the complainant to hospital did not weaken the prosecution case, as all ingredients of attempted defilement were proved and the appellant was positively identified by two eyewitnesses.
The State noted there is no mandatory number of witnesses under Section 143 of the Evidence Act. PW2 gave an eyewitness account, finding the appellant on top of the complainant with trousers removed; PW1 screamed and identified the appellant, a neighbour, so there was no mistaken identity. The appellant's alibi defence did not shake this evidence.
Sentence for attempted defilement
The Court interfered with the 20-year sentence, substituting the statutory minimum of 10 years, because the courts below failed to give reasons for departing from the minimum beyond citing prior conviction.
Previous convictions are relevant and repeat offenders may be punished severely, but sentencing courts must explain why the minimum was not imposed. The minimum sentence for attempted defilement under the Sexual Offences Act is 10 years. The substitution runs from the original trial sentencing date of 2nd July 2012.
Legal principles established
#- On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law and will not interfere with concurrent findings of fact unless the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
- A trial court may, under Section 180 of the Criminal Procedure Code, convict an accused of attempted defilement, a cognate offence, even though he was charged with defilement.
- An attempt requires an overt act immediately and remotely connected with the intended offence; a mere intention or a remotely connected act does not suffice.
- Where an accused is a repeat offender, sentencing courts must still give reasons for departing from the minimum sentence rather than merely citing the prior conviction.
Court orders
#- 1.The appeal against conviction is dismissed and the conviction for attempted defilement is upheld
- 2.The twenty (20) year term of imprisonment is set aside and substituted with imprisonment for a term of ten (10) years with effect from 2nd July 2012
- On appeal from
- High Court of Kenya at Eldoret
- H.C. Cr. A. No. 226 of 2013
- Jurisdiction invoked
- Second appeal under section 361(a) of the Criminal Procedure Code, limited to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kipsang Chemase v Republic", Case Analysis (2019). Criminal Appeal No. 62 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/270/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.