REPUBLIC OF KENYA. IN THE HIGH COURT OF KENYA AT KITALE. CRIMINAL APPEAL NO. 45 OF 2010. DANIEL KANG'OLE:::::::::::::::::::::::::::::::::::::::::::::APPELLANT. VERSUS REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT. (Being an appeal from original conviction and sentence of G.M. Ong'ondo – PM in Criminal Case No. 372 of 2010 delivered on 15th April, 2010 at Kapenguria) J U D G M E N T. The appellant, David Kang'ole, appeared before the Principal Magistrate at Kapenguria charged with defilement contrary to section 8 (1) read with section 8 (2) of the Sexual Offences Act. It was alleged that on the 12th April, 2010, in West Pokot District, the appellant defiled M C, a girl aged two (2) years and eight (8) months. There was an alternative count of Indecent Act with the same child contrary to section 11 (1) of the Sexual Offences Act. After the charge was read over and explained to the appellant in a language understood by him (i.e. Pokot), he pleaded guilty to the main court and was convicted after accepting the correctness of the facts read to him. He was then sentenced to serve life imprisonment as provided by the law. Being dissatisfied with the sentence, the appellant preferred this appeal on the basis of the grounds contained in his petition of appeal filed herein on 22nd April, 2010. He appeared in person at the hearing of the appeal and relied on his written submission in which he prays for his acquittal or a re-trial of the case. The learned prosecution counsel, M/s. Limo, opposed the appeal on behalf of the state/respondent and submitted that the appellant was convicted upon pleading guilty to the charge. That, the plea was properly taken and necessary interpretation was done. That, the child was aged two years in which case the minimum sentence is life imprisonment. The learned prosecution counsel therefore contended that the sentence imposed by the trial court was lawful. Having considered the appeal in the light of the supporting grounds and the submissions by both the appellant and the respondent, it must first and foremost be clarified that the appeal is on sentence as implied in the appellant's written submissions.
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Being an appeal on sentence, this court can only interfere where the trial court in assessing the sentence acted on wrong principles or imposed a sentence which was manifestly inadequate or manifestly excessive (see, Diego Vs. Rep. (1985)KLR 621). The appellant was charged under section 8 (1) of the Sexual Offences Act read together with section 86 (2) of the same Act. Whereas section 8 (1) defines the offence known as defilement, section 8 (2) prescribes the sentence of life imprisonment for a person who commits such offence with a child aged eleven (11) years or less. Herein, the child victim was aged two (2) years and eight (8) months, a fact which was not disputed and was in any event, established by the necessary age assessment report (P. Ex. 1) The trial court imposed a sentence which was lawful in terms of section 8 (2) of the Sexual Offences Act which is prescribed in mandatory terms. This appeal is therefore devoid of merit and is hereby dismissed. [Delivered and signed this 29th day of May, 2014.] J.R. KARANJA. JUDGE.
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