REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 47 OF 2016 M S..................................... APPELLANT VERSUS REPUBLIC.............................REPUBLIC (From the original conviction and sentence in Criminal case No. 1443 of 2013 of the Chief Magistrate’s Court at Busia by Hon. C.I Agutu– Resident Magistrate) JUDGMENT The appellant, M S, was convicted on his plea of guilty for the offence of incest contrary to section 20(1) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that between 1 st and 6th July 2013 at [particulars withheld] “C” in NAMBALE District of BUSIA County, he intentionally and unlawfully caused his penis to penetrate the vagina of E M, a child aged 5 years who to his knowledge was his granddaughter. He was sentenced to serve 20 years imprisonment. He has appealed against both the conviction and the sentence. The appellant was in person. He raised the following grounds of appeal: 1. That the learned trial magistrate erred in law and in fact by convicting him his mental status notwithstanding. 2. That the learned trial magistrate erred in law and in fact by convicting him on his plea of guilty which was as a result of duress by the court and the complainant’s parents. 3. That the learned trial magistrate erred in law and in fact by convicting him in disregard to the breach of his constitutional right to fair trial. 4. That he is in possession of new and compelling evidence. The state concede the appeal through Mr. Owiti, the learned counsel. He argued that the plea of guilty was not safe for the court had called for a mental assessment report severally but proceeded to convict without the benefit of the same. The facts of the prosecution case were briefly as follows: The complainant was a minor aged five years at the time of the incident. On 20 th August 2013 she was hospitalized in great pain. She had episodes of nightmares. She implicated the appellant as the culprit. He was arrested and charged. He pleaded guilty to the offence. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32. When one has been convicted as a result of pleading guilty, such an appeal can only be entertained on the issue of legality of the sentence meted and when it is apparent from the record that the plea was equivocal. Section 348 of the Criminal Procedure Code provides as follows: No appeal on plea of guilty, nor in petty cases No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
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The record is silent as to what had prompted the trial magistrate to refer the appellant for a mental assessment. This court cannot benefit from whatever observations she may have made and which had informed her to order for a mental report of the appellant. Equally we cannot be able to tell if this situation changed at the time the hearing commenced and when the appellant subsequently pleaded guilty to the offence after the testimony of the first witness. My assumption is that for the trial magistrate to commence the hearing, she was satisfied that the appellant was fit to plead. Remember, the court had ordered the examination suo moto. The brief instances the appellant interacted with the court by way of speech do not in any way give an indication that he could have been suffering from any mental impairment. In his grounds of appeal, the appellant questioned his mental status. There was nothing filed to indicate that his mental status could not have allowed the plea of guilty to be entered. He never adduced what he calls new and compelling evidence. Section 20 (1) of the Sexual Offences Act provides as follows: Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. The complainant in this case was aged 5 years. The sentence fall under the proviso to section 20(1) of the Sexual Offences Act. The sentence for incest ought to be synchronized with the sentences for defilement. Currently, a person convicted for incest enjoys a lesser sentence than a person convicted for defilement even where the ages of the victims are similar. From the foregoing analysis of the evidence on record, I find no reason to interfere with the conviction and sentence. The appeal is dismissed. DELIVERED and SIGNED at BUSIA this 7th day of November, 2017 KIARIE WAWERU KIARIE JUDGE
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