Evans Ndwiga v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL NO. 148 OF 2011 EVANS NDWIGA……….. ………...............................................APPELLANT VERSUS REPUBLIC ......................................................................PROSECUTOR From original conviction and sentence in Criminal Case No. 392 OF 2011 at the Senior Resident Magistrate’s Court at Runyenjes by Hon. M.W. MUTUKU SRM on 18/8/2011 JUDGMENT EVANS NDWIGA the Appellant was charged and convicted of the offence of defilement of a girl aged 12 years. He was sentenced to serve 30 years imprisonment. He was dissatisfied with the Judgment and filed this appeal raising three grounds. When the appeal came for hearing the State conceded to the appeal on the ground that the complainant’s age was not established by any evidence. She requested that the Court orders for a retrial. Sentencing in sexual related offences is pegged on age. It is clear that there was no evidence to confirm that the complainant is aged 12 years. The learned State Counsel has correctly conceded the appeal on that ground. I have considered the evidence that was adduced by PW1, PW2 and PW3. And relying on the cases of; i. ELIREMA & ANOTHER –V- REPUBLIC [2003] KLR 537 ii. SINARANA & ANOTHER –V- REPUBLIC [2004]2 KLR iii. EKIMAT –V- REPUBLIC [2005]1 KLR 182 I am satisfied that on a proper consideration of the admissible or potentially admissible evidence a conviction might result. Secondly the Appellant was convicted on 18/8/2011. He has just served two (2) years of the sentence of thirty (30) years. My finding therefore is that the interests of justice will be served if retrial is ordered. The evidence also confirms that the complainant is a daughter of the Appellant. The Appellant further confirmed this when he appeared before this Court on 14/10/2013. I therefore allow the appeal. The conviction and sentence are set aside. A retrial is hereby ordered. The Appellant to be remanded in custody and appear before the Principal Magistrate Runyenjes for plea and further orders on 14/11/2013. Matter to be heard and finalized within six (6) months. DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 7 TH DAY OF NOVEMBER 2013.

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