Paul Otieno Otieno v Republic

REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CRIMINAL APPEAL NO. 41 OF 2016 BETWEEN PAUL OTIENO OTIENO...........................................APPELLANT AND REPUBLIC..............................................................RESPONDENT (Being an appeal from the original conviction and sentence of Hon.S. Opande, SRM dated 14th September 2016 at Senior Resident Magistrate’s Court at Tamu in Criminal Case No. 3 of 2016) JUDGMENT 1. The appellant, PAUL OTIENO OTIENO, was charged with the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. The particulars of the case were that on 22nd March 2016 at [particulas withheld]Village, Muhoroni, within Kisumu County, he intentionally caused his penis to penetrate the vagina of AA, a child aged 15 years. He was convicted and sentenced to 10 years’ imprisonment. 2. The main issue herein is whether the accused was a child. Because if he was, he ought not to have been sentenced to imprisonment under sections 190 and 191 of the Children Act (see also Dennis Abuya v R KSM CA CR APP. No. 164 OF 2009 [2010] eKLR). The trial magistrate did not deal with this issue during the trial but dealt with it at the point of sentencing where he called for a Dental report. The same indicated that he was above 18 years although the baptism certificate stated he was born on 22 nd February 1998. The trial magistrate stated that, “I doubt the age but the Medical report puts his age at 18 years.” 3. Although there is evidence he could have been 18 or slightly over. The trial magistrate failed to put this evidence to the accused so that he can comment on it. Further having expressed doubt as to the age, such doubt could only operate in favour of the appellant. In such circumstances the accused has a right to be heard. Moreover, when it is apparent that the accused is a child or there is doubt as to his or her age, the issue should be dealt with early in the proceedings so that the accused is given an opportunity to challenge any evidence against him or call evidence in support of his case on that issue. 4. At the hearing of this appeal, I directed the Children’s Officer to inquire into the matter and prepare a report. According to the report, the appellant was born in 1999 and was 17 years old when the offence was committed. Although Mr. Muia, counsel for the respondent applied to have a medical report to ascertain his age, I do not think this will assist as it will remain a matter of opinion whether in fact the appellant was below 18 years when the offence was committed. 5. The conviction is affirmed but the sentence is quashed and substituted with a sentence of 2 years’ probation. The accused is set free unless otherwise lawfully held. DATED and DELIVERED at KISUMU this 1st day of November 2017. D.S. MAJANJA JUDGE

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