[2017] KEHC 4940 (KLR)
The appellant was erroneously charged and convicted under section 11(A) of the Sexual Offences Act, which applies to adults, instead of section 11(1), which applies to children and prescribes a harsher minimum sentence. However, since the error resulted in a more lenient sentence for the appellant, he cannot claim...
Source-derived case information.
- Citation
- [2017] KEHC 4940 (KLR)
- Parties
- Appellant: Edwin Ochieng Ouma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 44 of 2015
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- KW Kiarie
- Legal Topics
- Sexual Offences, Sentencing, Indecent Act With Child, Statutory Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Ochieng Ouma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly charged under the correct section of the Sexual Offences Act.
- 2 Whether the sentence imposed was harsh or unlawful given the statutory provisions.
Ratio Decidendi
The appellant was erroneously charged and convicted under section 11(A) of the Sexual Offences Act, which applies to adults, instead of section 11(1), which applies to children and prescribes a harsher minimum sentence. However, since the error resulted in a more lenient sentence for the appellant, he cannot claim that the sentence was harsh. The court found no basis to disturb the sentence and dismissed the appeal.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The sentence imposed by the trial court is upheld.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUSIA
CRIMINAL APPEAL NO. 44 OF 2015
EDWIN OCHIENG OUMA.............................APPELLANT
VERSUS
REPUBLIC.................................................RESPONDENT
(From the original conviction and sentence in criminal case No. 870 of 2013
of theChief Magistrate’s Court at Busia by D.O Ogola – Chief Magistrate)
JUDGMENT
The appellant,EDWIN OCHIENG OUMA, was convicted for the offence of indecent act with a child contrary to section 11(A) of the Sexual Offences Act No. 3 2006.
The particulars of the offence were that on 11th June 2013 at [particulars withheld] village, Busia Township location of Busia County, he intentionally and unlawfully committed an indecent act with R A O, a child aged 7 years.
He pleaded not guilty and he was tried and convicted. He was sentenced to five years imprisonment.
He now appeals against the sentence.
The state conceded that the appeal was harsh through Mr. Owiti, the learned counsel.
The facts of the prosecution case were briefly as follows:
When the complainant was going home from school, the appellant called her and took her to some maize plantation where he inserted his finger into her genitalia. She felt pain and cried. He carried her and left her at the gate of the school. The complainant is aged 7 years. B C met the appellant in her garden carrying the complainant who was crying. The complainant contended that the appellant inserted his fingers in her genitalia and she felt pain and started crying. The medical evidence confirmed the complaint.
The appellant was tried under section 11(A) of the Sexual Offences Act which caters for adult complainants. It provides:
Any person who commits an indecent act with an adult is guilty of an offence and liable to imprisonment for a term not exceeding five years or a fine not exceeding fifty thousand shillings or to both.
This was erroneous. He ought to have been charged under section 11(1) of the Sexual Offences Act which states:
Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
The appellant having benefitted from an error by the prosecution and the trial court, he cannot be heard to say that the sentence was harsh. I will not therefore disturb the sentence. His appeal is therefore dismissed.
DELIVEREDandSIGNEDatBUSIAthis22nddayof June, 2017
KIARIE WAWERU KIARIE
JUDGE