[2013] KEHC 4626 (KLR)
The court found that the appellant had admitted the facts of the offence, understood the charges, and was properly convicted. The lack of a stamp on the P3 form was a procedural irregularity but did not affect the substance of the case, as the appellant's own admission and the totality of the evidence supported the...
Source-derived case information.
- Citation
- [2013] KEHC 4626 (KLR)
- Parties
- Appellant: Charles Odhiambo Msango; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 176 of 2007
- Procedural Posture
- Criminal Appeal / Judgment on Sentence
- Outcome
- appeal dismissed
- Judges
- HK Chemitei
- Legal Topics
- Defilement, Sentencing Principles, Sexual Offences Act, Child Protection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Odhiambo Msango
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Sentence
Legal Issues
- 1 Whether the sentence of twenty years imprisonment for defilement was harsh or excessive in the circumstances.
- 2 Whether the lack of a stamp on the P3 medical form affected the validity of the conviction or sentence.
Ratio Decidendi
The court found that the appellant had admitted the facts of the offence, understood the charges, and was properly convicted. The lack of a stamp on the P3 form was a procedural irregularity but did not affect the substance of the case, as the appellant's own admission and the totality of the evidence supported the conviction. The sentence of twenty years imprisonment was not excessive given the gravity of the offence, the age of the complainant, and the statutory maximum of life imprisonment. The appeal on sentence was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal on sentence is dismissed.
- The sentence of twenty years imprisonment is upheld.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
Criminal Appeal 176 of 2007
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CHARLES ODHIAMBO MSANGO..............................................APPELLANT
VERSUS
REPUBLIC ….............................................................................RESPONDENT
(From original conviction and sentence in Criminal Case number 735 of 2007 of the Principal Magistrate’s Court at Siaya – M/s D. A. A. KAYILA)
JUDGMENT
The appellant has appealed on the following grounds:-
1. That the learned principle magistrate erred in law and fact in convicting me as there was no eye witness.
2. The learned principal magistrate erred in law and fact in convicting me as I was medically examined after two days as well as the complainant fact that could not ascertain spermatozoa.
3. The learned principle magistrate erred in law and fact in admitting the evidence as the complainant did not raise alarm nor did she appear in court to testify.
4. The learned principal magistrate erred in law and fact in basing conviction on circumstantial evidence as the same was not conclusive to prove me guilty.
5. The learned principle magistrate erred in law and fact in relying on self serving evidence of prosecution witness.
6. The sentence imposed on me by the trial magistrate is harsh and manifestly excessive in the circumstances of this case.
When this matter came up for hearing before the court of appeal the said court on 13th September 2011 referred this matter with direction that the only issue that this court was to determine was on sentence.
The appellant did however raise the above grounds but pursuant to the above directives I shall confine myself to the element of sentence.
The appellant was charged with the offence of defilement contrary to Section 8 (3) as read with Section 8 (2) of the Sexual Offence 2006.
The particulars are that on the 16th day of October 2007 at Siaya District within Nyanza Province had carnal knowledge of D.A.M a girl of the age of eleven (11) years without her consent.
He was equally charged with the offence of Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The appellant according to the facts read out went to the complainant home at around 10:00 p.m, on 16th October 2007 where she was having dinner with her family. She went with the complainant allegedly to take her to her grandmother's home. They did not come back till the following day. The complainant's mother did question her after she realized that she was in great pain. The complainant confirmed that the appellant had forcefully had sex with her.
The complainant was taken to Siaya District Hospital by police from Ndera Patrol Base. The P3 form was filled.
On his plea the appellant was convicted. In mitigation he said:-
“I pray for court's leniency. I am a first offender. I pray to be pardoned. My wife deserted me”.
The substance of the appellant’s oral argument in court is that the P3 form was not stamped by the doctor who filled it. I have perused the same and I do find that it was filled by a certain doctor but not stamped.
On the face of it this was a wrong. It is necessary always to authenticate such primary documents to avoid any doubt.
However this does not in anyway aid the appellant case. His own admission of the facts shows that he understood the charges that were facing him.
The trial court sentence him to a custodial term of twenty (20) years. The maximum period is life imprisonment. The State did not wish to pray for the enhancement of the period.
Taking into totality the entire proceedings and the admission of the facts as well as the reasoning of the trial court I do not find any fault on the sentencing .
The appellant willfully took away the complainant from her mother with full and planned knowledge of defiling her. He did not take her to her grandmother but instead to his house where he defiled her overnight.
The period of twenty (20) years is sufficient in the circumstances, as the same is not excessive as the maximum period given is life imprisonment. The appeal is otherwise dismissed.
Dated, signed and delivered at Kisumu this 26th day of March 2013.
H.K. CHEMITEI
JUDGE
In the presence of:
….................................................for state
…...................................for the appellant.
HKC/aao