High Court 6208 of 2019

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET CRIMINAL APPEAL NO. 36 OF 2017 ISSACK NDUNGU PETER...........APPELLANT -VERSUSREPUBLIC...................................RESPONDENT (Being an appeal from conviction and sentence of the Resident Magistrate's Court (Hon. T. Olando, RM) delivered on the 19 December 2014 in Eldoret Chief Magistrate’s Criminal Case No. 5352 of 2013) JUDGMENT [1] This is an appeal from the decision of the Learned Trial Magistrate, Hon. T. Olando, RM, dated 19 December 2014 in Eldoret Chief Magistrate's Criminal Case No. 5352 of 2013. The Appellant, Issack Ndungu Peter, had been charged before the lower court with the offence of attempted defilement contrary to Section 9(1) and (2) of the Sexual Offences Act, No. 3 of 2006. It was alleged that on the 18 th day of November 2013 in Uasin Gishu County, he intentionally and unlawfully attempted to cause his genital organ (penis) to penetrate the genital organ (vagina) of EWW, a child aged 7 years. [2] In the alternative, the Appellant was charged with indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. The particulars alleged that on the 18 th day of November 2013 in Uasin Gishu County, he intentionally and unlawfully caused his genital organ (penis) to come into contact with the genital organ (vagina) of EWW, a child aged 7 years. [3] The Appellant denied the charges and after his trial before the lower court, he was found guilty of the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The Appellant was accordingly convicted thereof, and sentenced to serve 10 years' imprisonment. Being aggrieved by his conviction and sentence, the Appellant preferred this appeal on 27 March 2017, raising following Grounds of Appeal; [a] That he is a first offender and is remorseful and apologetic for the offence; [b] That he is the sole bread winner to his family; [c] That there is a possibility that the 10 years imprisonment will have a negative impact on his future; [d] That he has siblings who depend upon him for their daily upkeep. He accordingly prayed that his appeal be allowed, the conviction quashed and the sentence set aside. [4] The Appellant, relied entirely on his written submissions that he filed herein, whereby he took issue with the fact that he was convicted of the Alternative Charge yet the trial court found no evidence to support the Main Charge of defilement. His contention was that the Prosecution did not discharge the burden of proof beyond reasonable doubt as required by law; and therefore that he ought to have been acquitted. He cited Sections 106 and 107 of the Evidence Act, Chapter 80 of the Laws of Kenya, as well as Section 134 of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya to support his submissions. The Appellant also placed reliance on Sigilai & Another vs. Republic for the holding that an accused person ought to be charged with an offence known in law; and that the offence should be disclosed and stated in a clear and unambiguous manner. [5] The Appellant attacked the evidence of the minor, contending that she was not a credible witness, granted the inconsistencies noted in her testimony. He relied on Ndungu Kimani vs. Republic [1979] KLR 282 wherein it was held that the witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that she is not a straightforward person. Lastly, the Appellant contended that his constitutional rights to a fair hearing under Articles 25(c), 50(2) and 159 of the Constitution were infringed; and that no

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