High Court 1125 of 2011

REPUBLIC OF KENYA IN THE HIGH COURT AT BUNGOMA CR.A. NO.139 OF 2011 (Being conviction and sentence by the Chief Magistrate in Bungoma CR. Case No. 1733 of 2010) PHILIP EPALE MASAKE REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Applicant ~VRS~ ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT RULING The Applicant was convicted by the Chief Magistrate at Bungoma of attempted defilement contrary to section 9 (2) of Sexual Offences Act, no.3 of 2006 and sentenced to serve 10 years in jail. The particulars of the charge were that on 3/9/2010 at Chemasiri sub-location in Teso North District of the Western Province, he intentionally attempted to cause his penis to penetrate the vagina of H.A a child aged 13 years. He was aggrieved by the conviction and sentence and appealed to this court. Pending the hearing and determination of the appeal, he asked to be released on bail. He was represented in the application by M/s Immene. The State was represented by Mr. Ogoti who did not oppose the application. The prosecution evidence on which the Applicant was convicted was that the complainant, aged 13 years, went to the stream to fetch water. While returning home, the Applicant begun following her. He caught up with her and held her by the hand. He dragged her into a cassava plantation and, after removing her clothes, defiled her. She was crying and this is what attracted PW2 to the scene. He was looking for her as it had taken long for her to return home. He found the Applicant standing and the complainant seated. She was sobbing. She could not say what had happened, even after they got home. It took the intervention of PW3 on the following day for the girl to disclose what had happened. She was taken to hospital and was examined by a clinical officer (PW4) who found that her hymen was intact and she had no bruises or lacerations on her genitalia. She had not been penetrated. The Applicant gave sworn defence and called two witnesses. He denied that he had committed the offence or that he was at the scene at the time, or at all. His testimony was that he was busy the whole day at home mudding his house. He further claimed that he had been framed by PW3 owing to the land dispute that the parties had. The trial court found that the prosecution had established the guilty of the Applicant beyond doubt. I have considered the grounds of appeal, the affidavit sworn to support this application and the submissions by counsel. The Applicant is a convicted and sentenced person. It is presumed that he has been properly convicted and sentenced. (Mundia v Republic [1986] KLR 623). He can only be released on bail at this stage if he can show that the appeal has overwhelming chances of success and that the circumstances presented by his application are exceptional and unusual. (Somo v Republic [1972] EA 476) The appeal will eventually come for hearing at which stage its merits will be considered. Nothing should be said at this stage that may prejudice any party or embarrass the court that will deal with the matter. And yet, the court has to take a provisional view of the appeal to be able to determine whether it has overwhelming chances of success. It is critical that the evidence of the complainant that she has been sexually assaulted by the Applicant was not corroborated by the medical evidence which showed that there had been no penetration or injury to her private parts. Secondly, the charge and particulars alleged attempted defilement and yet

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