B M v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL APPEAL NO. 224 OF 2017. B M........................................................................................APPELLANT VERSUS REPUBLIC........................................................................RESPONDENT (An appeal against the Judgment of the Chief Magistrate’s Court at Kwale in Criminal Case No. 1282 of 2015 dated 13 th October 2017 in at Kwale by Hon P.K. Mutai RM) JUDGMENT 1. B M the Appellant herein was charged and convicted of the offence of defilement contrary to section 8(1) as read with subsection 3 of the Sexual Offences Act No. 3 of 2006. The particulars were that he had caused his penis to penetrate the vagina of D.K a child of 15 years of age. 2. The Appellant pleaded not guilty to the charges and the matter proceeded to full hearing. He was found guilty and convicted and sentenced to 15 years imprisonment. He was aggrieved by the whole judgment and filed this Appeal on the following grounds: (i) That the learned Hon trial court magistrate erred in law and fact in convicting and sentencing him without proper finding that 15 years sentence meted out ought to be varied. (ii) That the learned Hon trial court magistrate erred in law and fact by failing to see that he was a first offender and a student therefore punishing him alone would be unfair. 3. A summary of the prosecution case is that the Appellant and PW1 (D.K) were boyfriend and girlfriend who were intimate. PW1 who was in 2014 aged 15 years and in std 8 would sneak and go and stay with the Appellant at his home. The Appellant was also a student in Form 2 and would go to school leaving PW1 behind. They all along engaged in sex which to them was consensual. 4. As a result of their conduct PW1 conceived and that is when problems started. In spite of his denials, the product (a baby boy) of their so called love was found to have been fathered by the Appellant. A DNA had been conducted by PW6 George Lawrence Osuda a government analyst. His report was produced as (EXB7). 5. The Appellant in his unsworn defence denied the charge saying he had never engaged in sex with the complainant. He disagreed with the DNA results. His witness DW2 only knew PW1 as a neighbour and that the Appellant used to go to school. 6. During the hearing of the Appeal the appellant relied on his written submissions, which basically raises the issue of his age. He claimed that both of them were minors and were incapable of giving consent for sex. 7. Mr Isaboke for the Respondent submitted that the Appellant’s age was never assessed. The girl was in std 8 while the appellant was in Form Two. It was his submissions that both were young people, who lived together and engaged in sex. It is PW1’s mother who was aggressive in the matter. 8. Counsel submitted that there had been several meetings between the families following PW1’s pregnancy. That the issue here should have been resolved in the appellant’s favour. Learned counsel therefore conceded the appeal. 9. This is a first appeal and this court has a duty to re- evaluate and reconsider the evidence and come to its own conclusion. It also has to bear in mind that it did not see or hear the witnesses and give an allowance of that. See Okeno v R 1972 EA 32; Muthoko & Anor V R [2008] KLR 297. 10. Following the submissions made herein and having seen the Appellant in court and having read the evidence, I ordered for an assessment

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