REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL APPEAL NO. 5 OF 2013 KOMORA BEKA KUCHIA …......…..................................….. APPELLANT VERSUS REPUBLIC ……….……....................................................…RESPONDENT (From original Conviction and Sentence in Criminal Case No.88of 2013 of the Chief Magistrate's Court at Mombasa – Hon. Michieka - PM) JUDGMENT KOMORA BEKA KUCHIA hereinafter referred to as the Appellant herein was Convicted and Sentenced to life imprisonment for the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual offences Act No. 3 of 2006. The particulars of the charge being that:“On the 27th day of December, 2012 in – Mombasa County he intentionally caused his penis to penetrate the Anus of E M a child aged 5 years”. In the present case, the Accused is shown to have pleaded guilty to the charge by stating that it was true. The facts which were given by the prosecutor were as follows:“On 27th day of December, 2012 at Kisauni, the Complainant was at her parents house. The Accused worked at the house. The Complainant used to go to his place of work. On 27th December, 2012 the Accused took her to a secluded place, removed her pants and started putting his hands in her vagina. The Complainant reported to her parents. The parents took her to Hospital where it was confirmed that she had been defiled. She was treated. Later they proceeded to the police station where they recorded a statement and P3 form was issued. The Accused was arrested on 8th January, 2013 and later charged. I wish to produce the P3 form as an exhibit” The Appellant was charged with defilement contrary to section 8(1) as read with Section 8(2) of the Sexual offences Act. Section 8(1) of the Act provides,
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“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. Section 2 of the Act defines penetration to mean, “The partial or complete insertion of the genital organs of a person into the genital organs of another person”. Genital organs are defined, “To include the whole or part of male or female genital organs and for the purposes of this Act to include the anus”. In the present case, the particulars of the charge sheet indicate that the Appellant intentionally caused his penis to penetrate the anus of the Complainant. The facts which were read to the Accused were that he inserted his hands in her vagina. Those facts do not constitute the offence of defilement as the penetration has to be through the male or female organs. Secondly, the Appellant was charged with defilement of a girl contrary to section 8(1) as read with Section 8(2) of the Sexual offences Act which provides, “A person who commits an offence of defilement with a child aged eleven years or less shall upon Conviction be Sentenced to imprisonment for life”. A perusal of the facts presented before the Court does not show any mention of the age of the Complainant nor is there mention of any age assessment having been undertaken. I find that this is a fit case for re-trial. It is accordingly ordered that the Conviction and Sentence to life Imprisonment is hereby reversed and the case to be tried by a Magistrate Court of competent jurisdiction. The case to be mentioned before the Chief Magistrate Mombasa on 18th November, 2014 for further directions. Judgment delivered dated and signed in open Court this 5th day of November, 2014. ….................. M. MUYA JUDGE 5TH NOVEMBER, 2014 In the presence of:Learned Counsel for Director of Public Prosecution Mr. Masita The Appellant present Court clerk Musundi
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