REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUSIA CRIMINAL APPEAL NO. 60 OF 2016 ANDREW CHITUA JOHN ALIAS ANYORE…........APPELLANT VERSUS REPUBLIC.....................................................................REPUBLIC (From the original conviction and sentence in S.O.A case No. 84 of 2016 of the Chief Magistrate’s Court at Busia by Hon. H.N Ndung’u– Chief Magistrate) JUDGMENT ANDREW CHITUA JOHN ALIAS ANYORE the appellant herein was convicted for the offence of attempted defilement contrary to section 9(1)(2) (sic) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 29 th September 2016 in BUSIA County he intentionally and unlawfully attempted to penetrate the vagina of B A, a child aged 5 years. He pleaded guilty to the offence and was sentenced to 10 years imprisonment. The appellant was in person. He contended that the sentence was harsh and pleaded for its reduction. The state opposed the appeal through Mr. Owiti, the learned counsel. He argued that the sentence was the minimum provided by the law. The facts of the prosecution case were briefly as follows: On the 29th September 2016 the complainant and her sibling went to the home of the appellant. While the children were there, the appellant applied jelly to the vagina of the complainant he was stopped on the tracks when the complainant’s younger brother found him doing so. To buy the silence of the children, he gave the victim Kshs.20/=. When their mother enquired about the money she was told what had transpired. She checked the genitalia of the complainant and confirmed that jelly had been applied. The matter was reported to the police. The appellant was arrested and charged. The appellant pleaded guilty to the offence and was sentenced to serve 10 years imprisonment after his conviction. He now contends that the sentence was harsh. The state through Mr. Owiti, learned counsel opposed the appeal on contention that he was given the minimum sentence allowed by the law. I have noted that the charge was erroneously drafted. It ought to have read:
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contrary to section 9(1) as read with section 9(2) … From the record, I am satisfied that the appellant was able to follow the charge and was not prejudicial in any way. The error is curable under section 382 of the Criminal Procedure Code. Section 9(2) of the Sexual Offences Act provides as follows: A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years. Indeed the appellant was sentenced to the minimum sentence provided by the law. He cannot claim that the sentence was harsh. Any other sentence less than the prescribed one would have amounted to an illegality. From the foregoing, I must dismiss the appeal. DELIVERED and SIGNED at BUSIA this 7th day of November, 2017 KIARIE WAWERU KIARIE JUDGE
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