REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Criminal Appeal No. 77 Of 2010 H. K. M ................................................................................................ APPELLANT VERSUS REPUBLIC …................................................................................... RESPONDENT (Being an appeal arising from the Judgment of Hon. D. M. Machage (Senior Resident Magistrate) in Eldama Ravine Senior Resident Magistrate's Court Criminal Case No. 129 of 2010 delivered on 20th April, 2010) JUDGMENT The Appellant H. K. M is charged with defilement of a child contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006. Particulars of the charge are that on the 25th day of January, 2010 at Koibatek District within Rift Valley Province, committed an act which caused penetration of his genital organ (penis) into the genital organ (vagina) of F.W a child aged 7 months. In the alternative he was charged with indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. Particulars of the charge being that on the 25th day of January, 2010 at Koibatek District within Rift Valley, committed an indecent act with F.W a child aged seven (7) months by touching her private parts. Judgment of the Court was delivered on 20th April, 2010 by Hon. D. M. Machage, Senior Resident Magistrate and the Appellant was sentenced to life imprisonment. Vide a petition of appeal filed on 3rd June, 2010 he raised two main grounds of appeal. I note that, although the petition may appear to contain six (6) grounds of appeal, grounds 1, 2 and 5 are standard formality which most Appellants who are not represented will normally include in a standard petition of appeal form. Moreso, ground 2 is repetitive of ground four (4). The main grounds of appeal are that, although the Appellant concedes to have committed the offence, he committed it under the influence of illicit brew and that he prays for leniency because his family which is
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poor, depends on him. The appeal came up for hearing before me on 30th May, 2013. The Appellant informed court that he wished to appeal only against the sentence. He prayed for leniency and urged the court to reduce the sentence because he never wanted to commit the offence. The State opposed the appeal. The prosecuting counsel, Mr. Mulati said that the Appellant defiled a child of seven (7) months and does not deserve any leniency. He submitted that the sentence was within the law and could not be reduced. Under Section 8 (1) as read with Section 8 (2) “any person who commits the offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” PW1, a Medical Officer at [Particulars withheld] Hospital who examined the complainant and filled the P3 form (P. Exhibit), told court that at the time of examination, she assessed the age of the minor to be approximately one (1) year old. PW2, the baby's mother testified on 31st March, 2010 and told the court that the baby was born in May, 2009. This placed her age at below one year. Effectively, at the time she was defiled, she was below eleven years. Therefore, the penalty prescribed by law falls under S. 8 (2) of the Sexual Offences Act which is life imprisonment. Although the Appellant prays for leniency, I am totally at a loss as to what drove him to commit such a heinous act. So beastly was his act that the little girl was left bleeding profusely from her vagina and semen splashed on her clothes. One wonders what sin this little soul committed to deserve the assault meted on her by the Appellant. He pleads for leniency saying that he has family. I doubt that any moral society requires a person of the character of the Appellant. Not even his own children would be entrusted on him. He only deserves to be completely kept away from society; and not just the society, but also away from the sight of a woman. Looking at the defence he gave in part, is a clear testimony that he was not remorseful for his actions. He gave a sworn statement of defence in which he admitted having defiled the little girl but said he was driven by the demon to do so. Such defence only adds salt to injury bearing in mind that the Appellant is an adult of sound mind who is expected to distinguish between good and bad, right and wrong and evil and righteous. He deserves no mercy. In fact, if there was a harsher punishment, that is what I am convinced would be deserving of him. But since we must abide with the law, I will pledge my fidelity to it. Accordingly, I dismiss the appeal, uphold the sentence imposed on the Appellant and order that he continues to serve the same unless otherwise he is lawfully set free. It is so ordered. DATED and DELIVERED at ELDORET this 3rd day of June, 2013. G. W. NGENYE – MACHARIA JUDGE
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In the presence of: Appellant in person Munene for the State/Respondent
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