REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CRIMINAL APPEAL NO: 158 OF 2016 (From Original Conviction and Sentence in Criminal Case No: 2 of 2016 of the Chief Magistrate’s Court at Gatundu.) D N W………….…………………………….APPELLANT -V E R S U SREPUBLIC……………………………..….RESPONDENT JUDGMENT 1. This is a judgment in Criminal Appeal No: 158 of 2016. The appellant, D N W, was charged in Gatundu Principal Magistrate’s Court with the offence of Incest contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006. The particulars thereof were that on the 26th day of January, 2016 within Kiambu county, intentionally and unlawfully did an act which caused penetration with his genital organ namely vagina of F N N a child aged 6 years 10 months, who was to his knowledge his cousin. 2. He was also charged with an alternative charge: of committing an indecent act with a child contrary to Section 11(1) of Sexual Offence Act No: 3 of 2006. The particulars thereof were that on the 26th day of January, 2016 within Kiambu County intentionally and unlawfully touched the vagina of F N N a child aged 6 years 10 months with his hands. 3. The appellant pleaded guilty to the charge and the court convicted him accordingly and sentenced him to life imprisonment. 4. However, the appellant changed his mind and felt aggrieved and dissatisfied that he has brought this appeal against both the conviction and sentence. He is prosecuting his appeal in person. 1. One of his ground of appeal the court’s violation of his rights of a fair trial under Article 50 (2) (b) of the constitution 2010. Further, the appellant cites the violation of Section 207 (1) of Criminal Penal code. 2. He refers to the case of Ngugi Vs Republic, KLR 98 where the court held, inter alia, “The accused should be required to admit or deny every element of the charge unequivocally.” 3. Therefore, he submits that the trial was unfairly conducted and thus inadmissible in law. 5. The respondent was represented by Madam Nyalyuka. She opposed and submitted as follows: 1. The appellant pleaded guilty as per court record. The plea is unequivocal. 2. The facts proved the offence of incest. 3. The victim was 6 years old. 4. The sentence meted out is life imprisonment. 5. Therefore, I submit, that there is no need to interfere.
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6. We apply for this appeal to be dismissed. 6. THE COURT PROCEEDINGS: ANALYSIS On 29th January, 2016, the accused was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006. The particulars thereof were that on 29/01/2016 within Kiambu County, intentionally and unlawfully did an act which caused penetration with his genital organ namely vagina of F N N a child aged 6 years and 10 months, who to his knowledge was his cousin. On 29/01/2016 he was charged in court. The substance of the charge and every element thereof was stated by the court to the accused person in the language he understands, who being asked whether he admits or denies the (facts) he replied: The facts are true. Court: Plea of guilty entered. Conviction on own plea of guilty. Court: The minor in question is only aged 6 years 10 months. There is only a mandatory sentence for the offence which is life imprisonment. He is thus sentenced to serve the mandatory life imprisonment. Nothing is on record in the court proceedings indicating that the court pointed out to the accused the gravity of the offence and the sentence. Court convicted of life imprisonment and the need for him to be sure of what he was saying, to plead guilty. Perhaps, he would sought the need to get legal counsel. There is nothing on record to this effect. Secondly, is what language was this explained? The court record simply says English/Kiswahili. Which of the two, was actually used by the accused? 7. My inference is that the pleading was not unequivocal. I disagree with Madam Ngalyuka on this point. This constitutes a breach of Article 50 (2) (b) of the constitution 2010. 8. Finally, and more importantly Section 20 (1) Sexual Offence Act, with which the appellant was charged, does not include cousins as the list of those with whom sexual intercourse constitutes the offence of incest. Since, the elements of incest are similar to the elements of defilement. The court ought, in my view, to convict the appellant on defilement at the point of convicting and sentencing. The court however convicted the appellant on non-existing offence. 9. FINDINGS For these reasons, this appeal is allowed. The appellant is hereby set at liberty unless otherwise lawfully held. JUDGMENT WRITTEN AND SIGNED BY: C. B. NAGILLAH JUDGE JUDGMENT DELIVERED, DATED AND COUNTERSIGNED IN KIAMBU BY: THIS 4TH DAY OF OCTOBER 2017 JOEL NGUGI JUDGE In the Presence of: ……………………………the Appellant ……………………………for Respondent ……………………………for Court Assistant
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