REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL APPEAL NO. 153 OF 2012 FREDRICK MUSYOKI KING’OLA ………….…..…… APPELLANT VERSUS REPUBLIC (Being an appeal from the conviction and sentence of Hon. H. Nyakweba Principal Magistrate delivered on 26/04/2012 in Kilungu Principal Magistrate Criminal Case No. 136 of 2011) ************************************ (Before Hon. B. Thuranira Jaden J) JUDGMENT 1. The Appellant, Fredrick Musyoki King’ola was charged with the offence of defilement of a girl under the age of eleven years contrary to section 8(1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 19 th day of September 2011 at [particulars withheld] village, Kikoko Location, Kilungu District in Makueni County, unlawfully committed an act which caused his genital organ to penetrate into the genital organ of K K, a child aged eleven years. 2. In the alternative the Appellant was charged with the offence of indecent assault with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 19th day of September 2011 at [particulars witheld] village, Kikoko Location, Kilungu District in Makueni County unlawfully and indecently assaulted K K a child aged 11 years by touching her genital organ with his genital organ. 3. When the Appellant was arraigned in court, he pleaded not guilty. After a full trial, the Appellant was convicted for the offence of attempted defilement and sentenced to fifteen (15) years imprisonment. 4. The Appellant was aggrieved by both the conviction and sentence and appealed to this court on the following grounds:v. The trial magistrate erred in sentencing the Appellant to 15 years imprisonment for attempted defilement without taking into account the provisions of section 389 of the Penal
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Code. v. The prosecution case was not proved beyond reasonable doubts. v. The defence case was not considered. 5. During the hearing of the appeal, the Appellant relied on written submissions. In the said submissions, the Appellant withdrew the appeal on conviction and prayed for a lenient sentence. The Appellant stated that he is now a born again Christian, is remorseful and has undergone counseling and hopes to sensitize the youth on the law on sexual offences. 6. The learned counsel for the State opposed the appeal, stating that the offence was proved. 7. Although the Appellant withdrew his appeal on conviction, I have nonetheless evaluated the evidence on record. The complainant, K K is mentally retarded and testified through an intermediary, PW1 E N. It was the complainant’s evidence that she was collecting firewood when the Appellant who is a neighbour emerged from the bush, wrestled her down, pulled down her underpants and had sex with her. The complainant’s evidence was corroborated by that of PW2 D M and PW3 E Mwho are neighbours and were attracted to the scene by complainant’s screams. According to PW2’s and PW3’s evidence, they caught the Appellant red handed, with the Appellant who was naked being on top of the complainant. The offence took place in broad daylight at about 12.00 noon. It is noted that the complainant (PW1), PW2 and PW3 are neighbours with the Appellant and knew him. Their evidence of recognition was therefore free from any possibility of error. 8. The evidence of the complainant’s mother PW4 R M gave the complainant’s date of birth as 23/10/1995. The mother produced the postnatal clinic card. By the time of the offence herein on 19/9/2011, the complainant had a few weeks to go before her sixteenth birthday. The mother’s evidence confirmed the complainant was mentally incapacitated. The evidence of the village elder, PW5 J N and that of the Investigating Officer PW7 P.C. Margaret Bitok further confirmed the report by the complainant and the investigations carried out. 9. The Clinical Officer, PW6 Erick Kasiamani noted that the complainant’s hymen was perforated and the clinical notes reflected the presence of spermatozoa. His evidence confirmed that the complainant had been defiled. 10.The defence by the Appellant that he was arrested for an offence that he knew nothing about did not cast any reasonable doubts on the prosecution case. The conviction was based on sound evidence. 11.The offence of attempted defilement under section 9 (1) and (2) attracts a sentence for a term of not less than ten years. The Appellant was sentenced to serve 15 years imprisonment. I have considered the provisions of section 389 of the Penal Code which provides as follows: “Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.” 12.I have also considered the provisions of section 2 of the Penal Code which provides as follows:“Except as hereinafter expressly provided nothing in this Code shall affect a. the liability, trial or punishment of a person for an offence against the common law or against any other law in force in Kenya other than this Code.” 13.The Appellant was charged under the Sexual Offences Act which makes provision for sexual offences. Section 389 of the Penal Code is therefore not applicable. The appeal has no merits and is dismissed. I uphold the conviction and the sentence meted out by the lower court. ……………………………………… B. THURANIRA JADEN
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JUDGE Dated and delivered at Machakos this 24th day of February 2014. ……………………………………… B. THURANIRA JADEN JUDGE
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