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Court of AppealPartially AllowedCriminal Appeal No. 142 of 2016· [2020] KECA 699 (KLR)

Isaack Ali Issack v Republic [2020] KECA 699 (KLR)

Court of Appeal
8 May 2020
Martha Karambu KoomeM. K. KoomeMohamed Abdulahi WarsameM. WarsameFSF. Sichale
3,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld an attempted defilement conviction despite a wrongly cited section, but halved the twenty-year sentence to ten years.

What this practically means

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Executive summary

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This is a second appeal from the High Court at Garissa (Dulu, J.), which had dismissed the appellant's first appeal against conviction for attempted defilement of a fourteen-year-old girl and a twenty-year sentence imposed by the Senior Resident Magistrate's Court at Wajir. The Court of Appeal (Koome, Warsame & Sichale, JJ.A), exercising its jurisdiction under Section 361 of the Criminal Procedure Code limited to matters of law, distilled two issues: whether charging the appellant under Section 8(1) of the Sexual Offences Act (defilement) rather than Section 9(1) (attempted defilement) was fatally defective, and whether attempted defilement was proved. The court held that the misdescription of the section was curable under Section 382 CPC, as the particulars and evidence clearly disclosed an attempt, and no prejudice was occasioned; the court relied on Section 214(1) CPC and Jason Akumu Yongo. On the merits, applying Section 388 of the Penal Code and Francis Mutuku Nzangi, the court found both mens rea and actus reus established: the appellant climbed into the complainant's bed, tried to remove her underwear and pushed his kikoi to his groin, the act being aborted only by the victim's screams. The conviction was accordingly affirmed. However, on sentence the court found twenty years manifestly excessive, the courts below having failed to consider the appellant's mitigation as a first offender and there being no aggravating circumstances such as violence. Guided by Francis Karioko Muruatetu, the court set aside the twenty-year sentence and substituted ten years, the statutory minimum under Section 9(2). The appeal was thus partially allowed: dismissed on conviction, allowed on sentence. No order as to costs appears in the judgment.

Key legal issues

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01

Whether citing Section 8(1) of the Sexual Offences Act instead of Section 9(1) rendered the charge fatally defective

Holding

The defect was curable under Section 382 of the Criminal Procedure Code because the particulars clearly stated an attempted defilement and no prejudice or failure of justice was occasioned to the appellant.

Reasoning

The court endorsed the High Court's analysis, noting that the particulars and evidence all pointed to attempted defilement under Section 9. Relying on Section 214(1) CPC and Jason Akumu Yongo, a charge is defective only where it fails to accord with the evidence or misdescribes the offence in its particulars. Here the misdescription was confined to the section cited and the appellant suffered no prejudice.

p. 3
02

Whether the ingredients of attempted defilement were proved beyond reasonable doubt

Holding

Both mens rea and actus reus were established: the appellant's intention to defile was demonstrated by climbing onto the complainant's bed and attempting to remove her underwear while pushing his kikoi to his groin, the act being aborted only by the victim's screams.

Reasoning

Applying Section 388 of the Penal Code and Francis Mutuku Nzangi, the court held that an attempt is proved where a person intending to commit an offence takes definite steps manifested by an overt act, irrespective of intervening circumstances aborting fulfilment. PW1's sworn testimony, accepted by the two courts below, established both elements beyond reasonable doubt.

p. 4
03

Whether the sentence of twenty years was appropriate

Holding

The sentence was manifestly excessive because the two courts below failed to consider the appellant's mitigation, notably that he was a first offender, and there were no aggravating circumstances such as violence or harm to the victim.

Reasoning

Guided by the Supreme Court's decision in Francis Karioko Muruatetu on the place of mitigation, and noting the statutory minimum of ten years under Section 9(2) of the Sexual Offences Act, the court held that proportionality required the sentence to be reduced to the statutory minimum. The court did not underrate the trauma suffered by victims of sexual offences against minors.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law under Section 361 of the Criminal Procedure Code and cannot interfere with 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 mere failure to cite the correct statutory section in a charge sheet is a curable irregularity under Section 382 of the Criminal Procedure Code where the particulars clearly disclose the offence and no prejudice is occasioned to the accused.
  • Attempted defilement is proved where the evidence establishes both the mens rea (intention to penetrate) and the actus reus (an overt act towards execution of that intention), even though penetration never occurred.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Sentence of twenty (20) years' imprisonment set aside and substituted with a sentence of ten (10) years

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006Section 8(1)
  • Sexual Offences Act No. 3 of 2006Section 8(2)
  • Sexual Offences Act No. 3 of 2006Section 9(1)
  • Sexual Offences Act No. 3 of 2006Section 9(2)
  • Sexual Offences Act No. 3 of 2006Section 11(1)
  • Kenya Citizenship and Immigration ActSection 34(1)
  • Kenya Citizenship and Immigration ActSection 53(1)(J)(2)
  • Criminal Procedure Code (Cap 75)Section 361
  • Criminal Procedure Code (Cap 75)Section 382
  • Criminal Procedure Code (Cap 75)Section 214(1)
  • Criminal Procedure Code (Cap 75)Section 150
  • Criminal Procedure Code (Cap 75)Section 169(1)
  • Penal CodeSection 388
  • Penal CodeSection 204

Cases cited (6)

  • Karani vs. R
    [2010] 1 KLR 73
  • Fappyton Mutuku Ngui vs. Republic
    (2012) eKLR
  • Jason Akumu Yongo v Republic
    [1983] eKLR
  • Francis Mutuku Nzangi vs. Republic
    [2013] eKLR
  • Francis Karioko Muruatetu & another vs. Republic
    [2017] eKLR
  • Joseph Kaberia Kahinga
On appeal from
High Court of Kenya at Garissa
H.C.R.A No. 105 of 2012
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isaack Ali Issack v Republic [2020] KECA 699 (KLR)", Case Analysis (2020). Criminal Appeal No. 142 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/699/eng@2020-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.