REPUBLIC OF KENYA. IN THE HIGH COURT OF KENYA AT KITALE. CRIMINAL APPEAL NO. 162 OF 2005. MAURICE ESEME SOITA :::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT. VERSUS REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT. (Being an appeal from the original conviction and sentence of M.C. Chepseba– PM in Criminal Case No. 590 of 2003 delivered on 1st July, 2005 at Kitale.) J U D G M E N T. The appellant, Maurice Eseme Soita, was charged with defilement, contrary to section 145 (1) of the penal code, in that on the 2nd February, 2003 at [Particulars Withheld] village Marakwet District, he defiled L J, a girl under the age of fourteen (14) years. He pleaded not guilty before the Principal Magistrate at Kitale but after trial, was convicted and sentenced to serve twenty (20) years imprisonment. He was aggrieved by the conviction and sentence and preferred the present appeal on the basis of the grounds in the petition of appeal dated 14th June, 2005, filed herein by the firm of J.M. Wafula & Co. Advocates. At the hearing of the appeal, the appellant represented himself after the withdrawal of his advocate and relied on his written submissions in support of his case. The Learned Prosecution Counsel, Mr. Chelashaw, appeared for the state/respondent and opposed the appeal by submitting that although the appellant was charged with defilement it appeared that he actually committed the offence of indecent act. That, the complainant appeared home while bleeding and when she was examined was found to have been defiled. She implicated the appellant who had earlier been see near her homestead. The Learned Prosecution Counsel, further submitted that the doctor and the investigating officer did not adduce evidence and therefore the conviction of the appellant for indecent act was proper. However, the sentence imposed by the trial court was unlawful as the offence carried a sentence of five (5) years imprisonment at the time. Having considered the grounds of appeal in the light of the submissions by both sides, the duty of this court was to re-consider the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. In that regard, this court has considered the evidence led against the appellant by a total of four (4) prosecution witnesses i.e. the complainant's grandmother, U C (PW1), the complainant L C (PW2), a farmer, Elijah Kipkwech Serem (PW3) and a mason, Joseph Wanyonyi (PW4).
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The defence raised by the appellant was also considered. In this court's opinion, there was sufficient evidence from the complainant, her grandmother (PW1) and the mason (PW4) establishing that the complainant was indeed sexually assaulted by way of being defiled. However, there was no medical evidence to confirm the fact of defilement. Therefore, the offence which was established by the foregoing witnesses was that of indecent assault as correctly found by the learned trial magistrate. The appellant's defence was a denial and a suggestion that he was apprehended and charged for no apparent good reason. However, the defence was dismissed by the learned trial magistrate after making a finding that the evidence by the complainant (PW2) was sufficient and credible in establishing that she was sexually assaulted by the appellant. The learned trial magistrate had the advantage of seeing and hearing the witnesses. She was better placed than this court in determining the credibility of the witnesses. Therefore, this court finds no room to interfere with the findings on credibility made by the learned trial magistrate and must also find that indeed the complainant was sexually assaulted by the appellant. His conviction was therefore sound and proper and is hereby upheld. However, the sentence imposed by the learned trial magistrate was unlawful as conceded by the learned prosecution counsel. The offence of indecent assault at the material time attracted a maximum sentence of five (5) years imprisonment with hard labour with or without corporal punishment. The appellant was handed a sentence of twenty (20) years imprisonment which was well above the sentence provided by law. This was in the year 2005, meaning that even if the correct sentence was imposed, it would have been completed by now. Nonetheless, the sentence imposed by the learned trial magistrate is hereby set aside and substituted with a sentence of five (5) years imprisonment with hard labour which has already been served thereby warranting the release of the appellant unless otherwise lawfully held. The appeal thus succeeds on sentence but not conviction. [Delivered and signed this 18th day of March, 2014.] J.R. KARANJA. JUDGE.
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