Sonati Simba v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL APPEAL NO. 35 OF 2012 SONATI SIMBA …......…..................................................….. APPELLANT VERSUS REPUBLIC ……….……....................................................…RESPONDENT (From original Conviction and Sentence in Criminal Case No. 157 of 2012 of the Senior Resident Magistrate's Court at Mariakani – Hon. Machage - SRM) JUDGMENT SONATI SIMBA hereinafter referred to as the Appellant herein was Convicted and Sentenced to sixteen (16) years imprisonment for the offence of defilement of a child contrary to section 8(1) as read with section 8(3) of the Sexual offences Act No. 3 of 2006. The particulars are that on the 2nd day of June, 2011 at [Particulars withheld] Village Kasemeni location within Kwale County he unlawfully and intentionally committed an act which caused penetration of his male genital organ namely penis into the female genital organ of H F a child aged twelve (12) years. One of the main grounds for this appeal is that at the time of commission of this offence the appellant was aged seventeen (17) years old. In his defence he told the Court so after denying having committed the offence. At page 14 line 1 of the record of proceedings the trial magistrate did observe that and stated the following, “For avoidance of doubt, I direct that the Accused persons age be assessed at Coast General Hospital and a report be made to Court before I deliver Judgment. OCS – Mariakani to comply. Mention on 19th January, 2012”. On 19th January, 2012 it was noted that the order was not complied with and a further mention was fixed for 23rd January, 2012 but on 23rd January, 2012 nothing is shown to have transpired and the case was fixed for 13th February, 2012 for Judgment. Judgment was delivered on 13th February, 2013 and no mention was made of the age assessment. This was a serious ommission because section 8(7) of the Sexual offences Act provides,

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