[2009] KEHC 2760 (KLR)
The conviction was quashed and the sentence set aside because the prosecution failed to prove the age of the victim, a critical element in sexual offences, as there was no medical or documentary evidence presented. Additionally, the trial court failed to conduct the mandatory test under section 124 of the Evidence...
Source-derived case information.
- Citation
- [2009] KEHC 2760 (KLR)
- Parties
- Appellant: Andrew Masinde John; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 25 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed, sentence set aside, retrial ordered
- Legal Topics
- Sexual Offences, Burden of Proof, Sentencing, Child Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Masinde John
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the offence of attempted defilement beyond reasonable doubt.
- 2 Whether the age of the victim was established as required by law.
- 3 Whether the mandatory test under section 124 of the Evidence Act was conducted before the child testified.
Ratio Decidendi
The conviction was quashed and the sentence set aside because the prosecution failed to prove the age of the victim, a critical element in sexual offences, as there was no medical or documentary evidence presented. Additionally, the trial court failed to conduct the mandatory test under section 124 of the Evidence Act to determine the competency of the child witness, rendering the evidence unreliable. The sentence imposed exceeded the statutory maximum, making it illegal. Given these procedural and substantive errors, the court found the conviction unsafe and ordered a retrial before a different magistrate.
Court Disposition
conviction quashed, sentence set aside, retrial ordered
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Criminal Appeal 25 of 2008
ANDREW MASINDE JOHN ……………APPELLANT
~VRS~
REPUBLIC……….....................……. RESPONDENT
JUDGMENT
The Appellant Andrew Masinde John was convicted of an offence of attempted defilement contrary to section 9 (1) of the Sexual Offences Act and sentenced to twenty years imprisonment. He appealed to this court on grounds that the offence was not proved to the standards required in criminal cases and that the burden of proof was shifted to him. On sentence, the Appellant states that it is harsh and excessive and that his mitigation was not considered.
The state did not oppose the appeal. The Senior Principal State Counsel, Mr. Onderi submitted that, the age of the victim was not established as required. The prosecution said the child was aged six (6) years with no proof.
I have perused the proceedings and find that there was no medical evidence to prove the age of the victim was tendered. The child while testifying said; ” I do not know my age.” The mother (PW2) said the child was aged six years but did not produce a birth certificate. The Clinical Officer said the child was five (5) years. This is the age estimated in the P.3 form. A P.3 form gives an estimate of the parent’s age and cannot be sufficient proof. The lower court misdirected itself in convicting the accused without establishing the age of the victim.
It is also noted that before the child testified, the mandatory test under section 124 of the Evidence Act was not conducted. Its purpose is to assist the court to establish whether the child has the capacity give sworn evidence. In the absence of this test, the evidence taken would serve no useful purpose.
The sentence provided for under section 9(1) of the Sexual Offences Act is ten (10) years imprisonment. The lower court imposed an illegal sentence of twenty (20) years.
For the above reasons, I quash the conviction and set aside the sentence. The Appellant was charged in court on 29/10/2007 and convicted on 24/04/2008. The trial took only six months and the appeal has been pending for about one (1) year. I find this case suitable for a retrial and I hereby order that the same be done before a different magistrate within the shortest time possible.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed at Bungoma
This 22nd. day of July 2009 in the presence of the appellant and state counsel.