Simon Ndungu Njenga v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Criminal Appeal 150 of 2007 SIMON NDUNGU NJENGA……………….……APPELLANT VERSUS REPUBLIC………………………………...……RESPONDENT JUDGMENT The appellant, SIMON NDUNGU NJENGA, was charged with the offence of defilement contrary to Section 8(1) as read with Section 3 of the Sexual Offences Act No. 4 of 2006. He was charged that on 29th June 2007 at O Village in Narok District within Rift Valley Province he intentionally and unlawfully committed on act which caused penetration with S T, a girl aged 13 years. He pleaded guilty to the charge and was sentenced to 20 years imprisonment. He has appealed against both the conviction and sentence. In his submissions the appellant started by claiming that his constitutional rights under Section 72(3) of the Constitution were trampled upon when he was held in custody for a period of six days from 30th June 2007 to 6th July 2007 before he was taken to court. Regarding his plea of guilty he contended that the same was not unequivocal. This is because the trial court failed to warn him of the dire consequences of a plea of guilty and to give him time to mull over the charge before recording a conviction. In the circumstances he urged me to allow the appeal, quash the conviction and set aside the sentence. Mr. Gumo for the state submitted that there is no merit at all in this appeal. He said the sentence imposed is lawful and the appeal should be dismissed in its entirety. I have considered these submissions and read the record of appeal. The record shows that the charge was read over and explained to the appellant in Kiswahili language. The appellant has not claimed he does not understand that language. So he understood the charge. The facts were read out in detail and he accepted them as correct and true. Before convicting him the court enquired of his age and the appellant claimed he was 15 years old. The court ordered the assessment of his age and the report was that he was over 18 years old. What this tells me is that the appellant is a dishonest man bent on lying to get off the hook. The court was not obliged to warn the appellant of the consequences of his plea before recording it for everyman and woman is presumed to intend the consequences of his act. When the appellant defiled the young girl he knew or must have known that he was committing a serious offence which would land him in prison. So he must have taken a calculated move. I find no merit in his appeal against conviction and I accordingly dismiss it.

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