[2013] KEHC 4875 (KLR)
The court found that the prosecution failed to prove the age of the complainant beyond reasonable doubt, as required by the Sexual Offences Act. The only evidence of age was the oral testimony of the complainant and her mother, with no supporting medical or documentary evidence. Since age is a critical element in...
Source-derived case information.
- Citation
- [2013] KEHC 4875 (KLR)
- Parties
- Appellant: C.K.N; Appellant: C.M.N; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 78 & 79 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- HI Ong'udi
- Legal Topics
- Sexual Offences, Attempted Defilement, Proof of Age, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
C.K.N
Appellant
C.M.N
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the age of the complainant beyond reasonable doubt as required under the Sexual Offences Act.
- 2 Whether the failure to prove the age of the complainant invalidates the conviction for attempted defilement.
- 3 Whether a retrial is appropriate in the circumstances of the case.
Ratio Decidendi
The court found that the prosecution failed to prove the age of the complainant beyond reasonable doubt, as required by the Sexual Offences Act. The only evidence of age was the oral testimony of the complainant and her mother, with no supporting medical or documentary evidence. Since age is a critical element in determining whether the offence is defilement or rape, this omission was fatal to the prosecution's case. The court further held that ordering a retrial would not serve the interests of justice, given the time already served by the appellants and the uncertainty of securing the complainant's testimony. Consequently, the convictions were quashed and the sentences set aside.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The convictions are quashed and the sentences set aside.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Criminal Appeal 78 & 79 of 2009
[if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
C.K.N…………………………...................................1ST APPELLANT
C.M.N……………………………...............................2ND APPELLANT
VERSUS
REPUBLIC …...............................................................RESPONDENT
(Being an Appeal from the Conviction and Sentence by S.M. MOKUA Senior Resident Magistrate Siakago in Criminal Case No. 1010 of 2008 on 14thApril 2009)
J U D G M E N T
C.K.N the 1st appellant and C.M.N the 2nd appellant were each charged with the offence attempted defilement contrary to Section 9(2) of the Sexual Offences Act No. 3/2006. The particulars indicate that the complainant J.N.N was aged 15 years.
The appellants denied the charges. The Sexual Offences Act is very particular about age. It is the duty of the Prosecution to avail evidence to confirm the age of the complainant. It is obvious PW1 was not a child of tender years. It was therefore important that her age be proved.
Her mother PW1 said she was 16 years old. PW1 herself stated she was 15 years old. There being no medical evidence nor documentary evidence to show age, I find that the age of PW1 was not established.
The particulars are specific that she was aged 15 years. It had to be established. The reason for establishment of the age of the victim is to enable the Court to know whether it was a case of defilement or rape.
The accused persons have been in prison since 14/4/2009 when they were sentenced to serve 10 years imprisonment each. They have served 3½ years of their sentence. Would this be a just case for retrial? In the case of EKIMAT VS REPUBLIC [2005] 1 KLR,the Court of Appeal held that before ordering for a retrial, each case should be considered on its own circumstances.
In this case, the appellants have done 3½ years of their sentence. After remission they are left with about 3 years to go. The offence was attempted defilement and not the actual defilement. The complainant should be over 18 years old and may not be willing to come and testify again. Due to this uncertainty, I find that an order for retrial may be an exercise in futility.
For that omission by both the Prosecution and the Court to ensure age is established, I will allow the appellants to benefit from that gap. I allow the appeal and quash the convictions and set aside the sentences.
Both Appellants to be set free unless otherwise lawfully held under a separate warrant.
DATED AND DELIVERED AT EMBU THIS 14TH DAY OF FEBRUARY 2013.
H.I. ONG'UDI
JUDGE
In the presence of:-
Ms. Macharia for State
Appellants
Njue CC