REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE HCCR. APPEAL NO. 127 OF 2013 SIMON CHARIK :::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT [Being an appeal from original conviction and sentence of H. O. Barasa, PM at Lodwar on the 27th November, 2013 in Criminal Case No. 228 of 2013] JUDGMENT The appellant, Simon Charik, was convicted and sentenced to twenty (20) years imprisonment by the Principal Magistrate at Lodwar for attempted defilement, contrary to section 9 (1) read with section 9 (2) of the Sexual Offences Act. It was alleged that on 23rd March, 2013 in [particulars withheld] township, the appellant attempted to defile NL, a child aged ten (10) years. There was an alternative count of indecent act with the child. Being dissatisfied with the conviction and sentence, the present appeal was filed on the basis of the grounds in the petition of appeal dated 10th December, 2013. The appellant appeared in person at the hearing of the appeal and fully relied on his grounds of appeal. The Learned Prosecution Counsel, M/S Limo, opposed the appeal on behalf of the State/Respondent by submitting that the appellant was properly convicted as there was evidence from the complainant showing how he attempted to defile her. On sentence, the Learned Prosecution Counsel submitted that the minimum sentence provided for is ten (10) years imprisonment whereas the appellant received twenty (10) years which was excessive for a first offender. Having considered the appeal in the light of the supporting grounds and the submissions by the respondent and also having re-visited the evidence adduced at the trial bearing in mind that the trial court had the advantage of seeing and hearing the witness, the opinion of this court is that there was no particular dispute with regard to the commission of the offence against the complainant, L N (PW1). She vividly and candidly explained the circumstances under which the
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offence occurred in broad day light. She said that she was at home on the material date together with the appellant who stayed with them. She was arranging utensils in a cupboard inside the house which the appellant who was outside the house entered therein and forcefully held her. He forced her to lie on her back and removed her inner wear. He then made an attempt to insert his male sexual organ into her female sexual organ but all in vain. She ran away after the opportunity to do so presented itself. She reported the incident to her mother, A N (PW2), who reported to the police. P.C Adan Galgalo (PW3), received the report and commenced investigations. He later prepared the present charge against the appellant. Roy Situma (PW4), a clinical officer, examined the complainant and placed her age at approx. ten (10) years. He found no evidence of penetration in her genitalia. In his defence, the appellant implied that he did not commit the offence and was charged without any good reason and simply because of demanding money owed to him by an individual person. The learned trial magistrate considered the defence together with the evidence availed by the prosecution and in particular that of the complainant and arrived at the conclusion that the appellant did not tell the truth and that he was the person responsible for the attempt to defile the complainant. This court upholds the conclusion as there was sufficient and credible evidence confirming the offence and the appellant's involvement in the same. His conviction by the learned trial magistrate was proper and is hereby sustained. With regard to the sentence, section 9 (2) of the Sexual Offences Act provides for a minimum sentence of ten (10) years. Therefore, the twenty (20) years sentence handed to the appellant was lawful but on a higher side as the appellant was a first offender. The same is hereby reduced to ten (10) years imprisonment. The appeal is otherwise dismissed. J. R. KARANJA JUDGE 22/10/2014 [Delivered & signed this 22nd day of October, 2014]
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