Dickson Moracha Nyakundi v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CRIMINAL APPEAL NO. 10 OF 2018 DICKSON MORACHA NYAKUNDI....APPELLANT VERSUS REPUBLIC..............................................RESPONDENT (Appeal from the original conviction and sentence of Hon. D.K Matutu – SRM dated 17th October, 2017 at the Principal Magistrate’s Court at Kilgoris in Criminal Case No. 1498 of 2015) JUDGMENT 1. The appellant, DICKSON MORACHA NYAKUNDI, was charged and convicted of the offence of defilement contrary to section 8(1) and (3) of the Sexual Offences Act. The particulars of the offence were that on 24 th October 2015 at [particulars withheld] Village, Nyamache Sub-County within Kisii County, he committed an act which caused penetration with his genital organ (penis) into the vagina of DK, a child aged 16 years. He was sentenced to 16 years imprisonment. 2. At the hearing of this appeal, the appellant stated that he did not contest the conviction but urged the court to review the sentence as he felt it was harsh and excessive. 3. The uncontested testimony of the child (PW 2) is that on 24 th October 2015 she was in church and at around 2.00 pm, the appellant asked her to accompany him to his house. She went with him and when she arrived there, she was locked in the house. She remained there for 3 days until she was rescued by administration police officers. She testified that she had sexual intercourse on the night she slept there. 4. Her testimony was corroborated by that of her mother, PW 1 who told the court that PW 2 went missing and that she reported the matter to the police who looked for her. When the appellant was arrested, PW 2 informed her what had taken place. 5. The headteacher of the school where PW 2 attended, PW 3 recalled that on 26 th January 2015, some informers told him of a girl who had been locked up by the appellant for 3 days. He told the informers to bring the girl and they brought her to him with PW 2 and the appellant on a motorbike whereupon he took them to the police station. 6. PW 4, the clinical officer, testified that PW 2 was brought to Nyamache Sub-County Hospital on 27 th October 2015. She examined her genital and noted some lacerations. The high vaginal swab revealed spermatozoa confirming that penetration had taken place. 7. In his defence, the appellant denied the charges and stated that he met PW 2 on the road and he took her home. He met her after 3 days and gave her a lift and that is when he was arrested. He also admitted that PW 1 was found in his house. 8. Although the appellant did not contest the conviction, I am satisfied that on the basis of the evidence I have outlined the conviction was safe. PW 2’s testimony was clear and consistent and corroborated by the testimonies of PW 1, PW 3 and PW 4. In his defence, the appellant confirmed he knew PW 1 and he was arrested with her. 9. As regards the sentence, PW 2 told the court she was 16 years old. Likewise, PW 3 who examined her, assessed PW 2’s age as 15 years old. PW 1 testified that PW 2 was 16 years old. In my view, the finding that PW 1 was aged 16 years old was supported by the evidence. The age fell within the bracket of section 8(3) of the Act which prescribes a minimum sentence of 15 years imprisonment. This is the mandatory minimum sentence and this court cannot depart from it. It is affirmed.

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