D K G v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal 303 of 2004 D K G..............................…………………….....…….……………..APPELLANT Versus REPUBLIC……………………………………...........…..…………RESPONDENT (Being appeal against the conviction and sentence of A. Lorot, Resident Magistrate, in the Resident Magistrate’s Criminal Case No. 1169 of 2004 at Gichugu) JUDGMENT The Appellant was charged with defilement of a girl under 16 years contrary to Section 145(1) of the Penal Code. He was also charged with the alternative charge of indecent assault on a female contrary to Section 144(1) of the Penal Code. The particulars of the charge of defilement are as follows: “DAVID KARIUKI GATIBA: On diverse dates between 17th December 2004 at [particulars withheld] Village in Kirinyaga District within Central Province had carnal knowledge of J W W a girl then aged 9 years.” The Appellant was convicted for this count and sentenced to life imprisonment. Section 145(1) provides as follows: “Any person who unlawfully and carnally knows any girl under the age of fourteen years is guilty of a felony and is liable to imprisonment with hard labour for fourteen years together with corporal punishment.” It is clear from that section for one to be convicted of that offence the particulars of the offence in the charge ought to specify that the carnal knowledge was unlawful. As can be seen in the particulars stated hereinbefore the same did not state that the carnal knowledge was unlawful. In the case of ACHOKI -VREPUBLIC (2002) 2 E.A. 283 the Court of Appeal in considering an appeal relating to Section 141(1) of the Penal Code found that the failure of the prosecution to state in the particulars that the act of the rape was unlawful, rendered the conviction of the Appellant wrongful. The Court of Appeal stated that a charge under that section which failed to state in the particulars that the act of raping was unlawful failed to disclose an offence known to law. In this case the Appellant was convicted on that charge of defilement. The particulars of the offence failed to state that the act of carnal knowledge was unlawful. Failure of the prosecution to so state makes the conviction of the Appellant to be wrongful. That conviction therefore shall be set aside and similarly the sentence is hereby set aside. That as it may be, the Appellant was charged with indecent assault contrary to Section 144(1). Since the Appellant faces an alternative charge, the Court will consider whether the evidence tendered suffices to support the alternative charge. The Complainant at the time of giving evidence was 9 years old. On being examined by the magistrate the magistrate found that being of tender age she would not take the oath but had sufficient intelligence to give evidence. She gave evidence that the Appellant was her cousin. They used to stay together before she was placed in a Children’s’ home. She further stated that whilst they were staying together the Appellant by using force often took her to the coffee plantation and forced her to have sexual intercourse. She was afraid to tell anyone but did eventually tell her aunt who she called by the name of F W. That aunt reported the matter to the Complainant’s teacher. She further stated that when the matter was reported to the police the mother to the Appellant assaulted her.

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