Brian Omondi v Republic

REPUBLIC OF KENYA. IN THE HIGH COURT OF KENYA AT BUNGOMA. CRIMINAL APPEAL 62 OF 2016. BRIAN OMONDI................................APPELLANT VERSUS. REPUBLIC......................................RESPONDENT [An appeal from Conviction and Sentence in Original Kimilili PM Cri. 14 of 2016 delivered on 2.3.2016 by Hon. D.O. Onyango, Senior Principal Magistrate] JUDGMENT. The Appellant Brian Omondi was charged with the offence of Defilement of a girl Contrary to Section 84(1) (4) of the Sexual Offences Act No. 3 of 2006. The Particulars of Offence being; On the 16th day of February 2016 at [Particulars Withheld] Kimilili Sub-County of the Bungoma County, unlawfully and intentionally caused his penis to penetrate the Vagina of FN a child aged 14 years. The Charge was read to him on 2.3.2016 to which he pleaded guilty, facts were narrated which he admitted to be correct, he was convicted and after mitigation was sentenced to serve 20 years imprisonment. Appellant thereafter filed this appeal on the following grounds; 1. THAT the trial Court erroneously relied on a defective Charge Sheet to convict by failing to find that the charge was at variance with the particulars of the offence. 2. THAT the trial Court erred in law and in fact to convict me without considering that Article 50(2) j of the Constitution was not complied with hence unfair trial. 3. THAT the trial Court erred in its findings by relying on my age assessment report which was clouded with shadows of doubts compared with the birth certificate which clarified that I was 17 years old hence under age. 4. THAT the trial court procedure was marred with irregularities which infringed my rights to a fair trial as enshrined under Article 25(c) of the Constitution hence the preceding trial was a nullity. The appellant filed written submission in support of the grounds of appeal. He submitted that he was not served with Charge Sheet, Witness Statements, P3 Form and all evidence the prosecution intended to rely on; which was in violation of Article 50(2) j of the Constitution. Appellant further submitted that at time of Commission of the offence he was 17 years old and annexed certificate of birth and that he was therefore a child. He submits that the age assessment report produced was not a valid document for age assessment. Finally the appellant submits that the trial was unfair since he was taken to court 13 days after arrest, and no explanation for the delay was provided. M/s Njeru for state opposed the appeal on the grounds that the appellant pleaded guilty and conviction and sentence was proper. However, on being shown the copy of certificate of birth she conceded that the court erred in sentencing him to imprisonment term. The appellant was charged with the offence of defilement Contrary to Section 8(1) 4 of Sexual Offences Act. The charges were read to him to which he pleaded guilty; facts were stated by prosecution which facts he admitted; he was convicted of the offence; the prosecution informed the court that he is a first offender and the appellant in mitigation stated; “I pray for leniency. She was a student but I thought she was 16 years old.” The court then sentenced him to 20 years imprisonment. Upon perusal of the proceedings, I am satisfied that the plea was taken in accordance with the principles laid down in Adan -Vs- Republic [1973] EA 455 I therefore find the plea of guilty was unequivocal. The other issue raised by the appellant is that at the time of commission of the offence on 16 th day of February, 2016 he was still a child and therefore could not be sentenced to imprisonment which is contrary to Section 191 of the Childrens Act. He annexed to his submission a copy of certificate of birth No. [xxxx] as proof that he was born on 10.10.1999.

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