High Court 8218 of 2020

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI HCCRA NO. 116 OF 2019 KIMEU NDAMBUKI........................APPELLANT -VERSUSREPUBLIC....................................RESPONDENT (Being an appeal from the sentence of the Senior Resident Magistrate Hon. T. Ole Nchoe dated 24/09/2015 in Makueni SPMCR No. 615 of 2015.) JUDGMENT 1. Kimeu Ndambuki the Appellant herein was arraigned before the Makueni Senior Principal Magistrate’s court on account of the following offences: Count I: Attempted defilement contrary to section 9(1)(2) of Sexual Offences Act No. 3 of 2006. The particulars were that the Appellant on the 2nd day of September 2015, at [Particulars Withheld] village, [Particulars Withheld] sub-location, kwakavisi location, Kathonzweni district within Makueni county intentionally attempted to cause his penis to penetrate the vagina of MK a child aged 13 years. Count II: Committing an indecent act with a child contrary to section 11(1) of the Sexual Offence Act No. 3 of 2006. The particulars were that the Appellant on the 2 nd day of September 2015 at [Particulars Withheld] village, [Particulars Withheld] sub location, kwakavisi location Kathonzweni district within Makueni county intentionally touched the vagina of MK a child aged 13 years with his penis. 2. He appeared for plea and was convicted on his own admission of the offence in count 2 and sentenced to ten (10) years imprisonment. He was discharged of count I under section 87(a) Criminal Procedure Code for lack of evidence. 3. His appeal is basically on sentence. In his written submissions and grounds of appeal, he asks the court to consider the facts, circumstances and any other mitigating factor of the case and reduce the sentence for him. He has referred to some training he has undertaken while in prison plus the certificates obtained. 4. The appeal has been opposed by the Respondent. Learned counsel Mr. Kihara for the Respondent submitted that the Appellant was properly convicted for the offence of attempted defilement. He further submitted that this offence is prevalent in this region hence the need for a deterrent sentence. 5. This is a first appeal and this court has a duty to re-analyze and re-consider all the evidence on record and arrive at its own conclusion. See Okeno –vs- R (1972) E.A 32, Kiilu & Anor (2005) IKLR 174. 6. Before dealing with the issue of sentence, I must satisfy myself that the plea is unequivocal. I have perused the record and do note that the Appellant was first arraigned in court on 23 rd September, 2015 on account of 2 counts. He pleaded guilty to count I. Plea was never taken on count II. Facts were read the next day without him being reminded of the charge. His response to the facts was this “I touched her breast with her consent. She is the one who called me to the bush.” 7. Inspite of this, the court went ahead to convict him not on count I which was read to him but on count II which was never read to him. This is further fortified by the withdrawal of count I by the DPP under section 87A Criminal Procedure Code on 6 th October, 2015 for lack of sufficient evidence. 8. To make the record clear, the Appellant was charged with two offences under two distinct counts, under the Sexual Offences Act. None of them was an alternative count and the trial Magistrate ought to have taken plea on both counts and not one as he did.

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