REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL APPEAL NO. 74 OF 2012 M.M. M. …......…..........................................................................….. APPELLANT VERSUS REPUBLIC ……….……....................................................…RESPONDENT (From original Conviction and Sentence in Criminal Case No. 132 of 2012 of the Senior Resident Magistrate's Court at Wundanyi – Hon. Chesang - RM) JUDGMENT The Appellant M. M. M. was Convicted and Sentenced to life imprisonment for the offence of incest by male contrary to section 20(1) of the Sexual offences Act No. 3 of 2006. The particulars of the offence being that on the 11th day of March, 2012 at [Particulars withheld] Village Kishushe location Taita-Taveta County, being a male person caused his penis to penetrate the vagina of J. C. M. a female person who was to his knowledge his daughter aged twelve (12) years. The Accused pleaded guilty to the charge. Facts were read to him and he admitted them. In his grounds of appeal he has argued that the name of his interpretor was not indicated in the record of proceedings and nor is the language used indicated. I have perused the record of proceedings and the interpretation is shown to have been in English/Swahili. The appellant after the charge was read over to him is shown to have answered “Ni kweli”. It is obvious that the language used was Swahili. After the facts were read to him, it is shown that he replied in Swahili language “maelezo ambayo nimesikia ni ukweli. Tulikuwa tumekosana na mama mtoto ambaye sitaki kumuona kwa macho hata kidogo”. The magistrate translated this to English language. The appellant cannot be heard to say that the language used was not indicated. He has also contended that the name of the interpreter has not been shown in the record of proceedings. The court clerk who was interpreting is shown as on Mnjala. He further contends that the provisions of article 50 of the constitution were not adhered to. He does not indicate in what form or manner he was not accorded a fair hearing. I have gone through the facts of the case which were given by the prosecution and I am satisfied that they constitute the offence of incest.
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Section 20 (1) of the Sexual offences Act provides as follows, “Any person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years. Provided that, if it is alleged in the information or charge and proved that the female person is under eighteen (18) years the Accused person shall be liable to imprisonment for life and it shall be in material that the act which causes penetration or the indecent act was obtained with the consent of the female person”. In the present case apart from the estimated age of the complainant was twelve (12) years, there was no other evidence to prove her age. The life Sentence was therefore not merited. It is accordingly reduced and or varied to twenty years imprisonment. The appellant will serve twenty (20) years imprisonment from the time of Conviction. Orders issued by the trial magistrate referred to as section 114 orders under the childrens Act to remain in place. This appeal succeeds to that extent only. Judgment delivered dated and signed this 10th day of October, 2013. …............. M. MUYA JUDGE 10TH OCTOBER, 2013 In the presence of:Learned state counsel Mr. Tanui The appellant present Court clerk Mr. Musundi
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