REPUBLIC OF KENYA IN THE HIGH COURT AT KAKAMEGA CRIMINAL APPEAL NO. 241 OF 2011 BETWEEN S M A...........................................APPELLANT AND REPUBLIC...............................RESPONDENT (Being an appeal from the original conviction and sentence of Hon. T.N. Bosibori, RM dated on 18th July 2008 at Vihiga Resident Magistrate’s Court in Criminal Case No. 883 of 2008) JUDGMENT 1. The appellant, S M A, was charged with the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. The particulars were that on 9th July 2008 in Emuhaya District within Western Province, the appellant, intentionally and unlawfully penetrated the genital organ namely his penis into the genital organ namely the vagina of SAE, a girl aged 8 years. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act based on the same facts. He was convicted on his own plea of guilty and sentenced to 50 years’ imprisonment with hard labour. 2. The appellant now appeals against the conviction and sentence on the grounds set out in the petition of appeal filed on 10th November 2011 and the written submissions he presented to the court. The petition reads as if the matter was heard on merits, however and in the interests of justice, I shall consider the issues raised in the submissions which are more focused on the matter at hand. He submitted that the charge was defective in that the facts disclosed that the appellant was an uncle to the child hence he ought to have been charged with the offence of incest contrary to section 20 of the Sexual Offences Act. He further contended that the plea was not unequivocal and that he was hurriedly sentenced and lastly that he was not given adequate facilities to prepare his defence. 3. In opposing the appeal and supporting the conviction, Mr Ng’etich, learned counsel for the respondent, submitted the plea was taken in accordance with the established procedure and that the appellant pleaded guilty. He further submitted that on the whole the plea was unequivocal. 4. The requirements of recording a guilty plea provided for under section 207 of the Criminal Procedure Code (Chapter 75 Laws of Kenya) were elucidated in Adan v Republic [1973] E.A. 445 as follows:i. The charge and all the essential ingredients of the offence should be read to the accused in his language or in a language he understands
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ii. The accused’s own words should be recorded and if they are an admission, a plea of guilty should be recorded. iii. The prosecution should immediately state the facts and the accused should be given an opportunity to dispute or explain the fact or add any relevant facts. iv. If the accused does not agree with the facts or raises any question as to his guilt, his reply must be recorded and a change of plea entered. v. If there is no change of plea, a conviction should be recorded and a statement of facts relevant to sentence together with the accused’s reply should be recorded. 5. A review of the proceedings show that the charges were read to the appellant, he stated that the charges were true. Thereafter, the trial magistrate warned the appellant of the seriousness of the charges facing him but he insisted that the charges were true and consequently a plea of guilty was entered. 6. The appellant also confirmed the facts were true when they were read to him by the prosecutor. The facts were that on 9th July 2008, the child was at home when the appellant, who was her uncle, approached her and without saying anything he grabbed her by the hand, took her to a nearby river where there was a thicket, placed her on the ground, removed her panties, removed his own trousers and proceeded to defile her severally. The child’s screams attracted a woman arrived at the scene. The appellant ran off with the child’s pant when he saw the woman. The woman attended to the child and took her Kilingili Police Station. The child was taken to the hospital and a P3 form filled which confirmed that the child had a torn hymen, bruises on both the labia minora and majora and a tear of the posterior corner of the vaginal opening. In the meantime, the appellant went underground and was arrested on 15 th July 2008. The P3 form was produced in evidence. 7. After accepting the facts as true, the appellant was convicted. Even where the accused has admitted the facts as read to him, the court may yet record a plea of not guilty where the accused says something in mitigation that negates the offence. The Court of Appeal in John Muendo Musau v Republic NRB CA No. 365 of 2011 [2013]eKLR observed that: We want to add here that if the accused wishes to change his plea or in mitigation says anything that negates any of the ingredients of the offence he has already admitted and been convicted for, the court must enter a plea of not guilty. That is to say that, an accused person can change his plea at any time before sentence. 8. The accused in mitigation stated that, “Remorseful, I am not happy about it. I am an orphan. Am alone. It was the deviI’s happiness. That is all.” I find that the mitigation did not negate the guilty plea based on the facts that he had accepted. When the matter was adjourned to the next day for sentencing, the appellant stated that, “I maintain [the] the plea of guilty.” 9. I have looked at the charge sheet and although it refers to “section 8(1)(2)” of the Sexual Offences Act which is non-existent. The error of the charge sheet does not detract from the substance of the charge which is very clear and did not cause any prejudice as the particulars of the charge disclosed the elements of the offence of defilement. I also reject the appellant’s argument that he ought to have been charged with incest given that he was the child’s uncle as the charge sheet and the facts read to him disclosed an offence under section 8(1) as read with section (2) of the Act and he was not prejudiced thereby. 10. As regards the sentence, the mandatory sentence provided under section 8(2) of the Act for the defilement of a child under the age of 11 years, is life imprisonment. There is no discretion given to the court. The trial magistrate therefore erred in sentencing the appellant to 50 years’ imprisonment with hard labour. In the circumstances, the sentence is set aside and substituted with one of life imprisonment according to the law. 11. From the proceedings I have outlined, I am satisfied the appellant’s plea of guilty was unequivocal. I
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affirm the conviction. The sentence is set aside and substituted with life imprisonment. 12. Save for the sentence, the appeal is dismissed. DATED and DELIVERED at KAKAMEGA this 1st day of September 2017. D.S. MAJANJA JUDGE Appellant in person. Mr Ng’etich, Senior Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the respondent.
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