[2017] KEHC 592 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL APPEAL NO. 59 OF 2017

From Original Conviction and Sentence in Criminal CaseNo. 1829OF2015. In the Principal Magistrates Court atMERU LAW COURT.

FRANCIS MUGENDI NDWIGA.....................APPELLANT

VS

REPUBLIC.......................................................RESPONDENT

JUDGEMENT

The appellant was charged with the offence of abduction with intent to confine contrary to section 25 as read with section 259 of the penal code. The particulars of the offence are that the appellant, on the 7th of September, 2015 in Imenti North Sub-County within Meru County with intent to cause M M to be secretly and wrongfully confined abducted this said M M.

The trial court convicted the appellant and sentenced him to four years imprisonment. The grounds of appeal are that the prosecution evidence is contradictory, inconsistent and uncollaborated. That the prosecution did not prove its case beyond reasonable doubt and that the appellant's defence was not considered. During the hearing of the appeal, the appellant informed the court that he has a young family and prays for a second chance.

Mr Namiti, prosecution Counsel, submitted that the case involved family issues. There was a dispute as to who was the father of the abducted child.

This is a first appeal and the court has to re-evaluate the evidence afresh and make its own conclusion.

PW1 S M M is the grandfather of the abducted child. He was staying with the child. On 7/9/2015 he went to church in the morning. When he returned in the evening the child could not be traced. The following day he reported at the Meru Police Station. The child was found after seven(7) days. He did not know the appellant.

PW2 C K is a sister to PW1. She was informed by PW1, that the child had gone missing. The child was found after one week.

PW3 I K Mis the mother of the abducted child. She testified that the appellant was her former boyfriend and is not the father of the child. She works in Nairobi while the child was living with her parents in Meru. The child was five years old. On 7/9/2015 she was informed by PW1 that the child was lost. The appellant called her on phone and said he was with the child and would make her struggle since she had rejected him. The appellant then switched off his phone. The appellant then called asking her to go to Nairobi. They communicated on phone and met at Caltex on Donholm Road. The appellant was arrested. He took the police officers to where the child was being kept at the appellant's mother's kiosk.

PW4 WYCLIFF NDWIGA NJAGI is the appellant's relative and works in Meru. On 7/9/2015 the appellant went to his place of work and asked for financial assistance to travel to Nairobi.

He assisted him with money. The appellant was in the company of a small boy.

A few days later police officers went to his place of work investigating the matter. He called the appellant and asked him to return the child.

In his unsworn evidence, the appellant testified of events which occurred in 2016. he stated that on 3/9/2016 he went to meet PW3 and her parents. He wanted to go with her but was told to pay a fine. He had no money. He went to see PW4 who gave him some money and he travelled to Nairobi. He later met PW3 at Caltex and he was arrested.

The issue for determination is whether the prosecution proved its case beyond reasonable doubt. It is established from the evidence that indeed the young boy went missing from 7/9/2015. The appellant was arrested one week later on 14/9/2015 and the child was found with him. The evidence of PW4 is that he saw the appellant with the child. PW3 was called by the appellant who informed her that he had the child. It is therefore clear that it is the appellant who took the child from PW1's home. The prosecution did prove that it is the appellant who took away the child. If the appellant felt that he was the father of the child, he could have filed a civil suit and seek DNA examinations. He decided to take the child and punish the child's mother. That was unlawful. I do find that the appellant was properly convicted. The defence evidence does not raise any issue that raises doubt on the prosecution case. The appellant was arrested at Caltex area in Nairobi and the evidence shows that he had asked PW3 to meet him there.

The maximum sentence under section 259 of the penal code is seven(7) years imprisonment. The trial court sentenced the appellant to four years imprisonment. There is a probation officer's report dated 16/11/2016. It indicates that the appellant's relatives were not known in Meru. The evidence shows that the appellant's mother was living in Meru.

The appellant pleads for leniency. He called PW3 and told her that he had the child. His action was unlawful and caused distress to PW3's family. Being a first offender, I will set aside the four(4) years imprisonment sentence and reduce it to eighteen(18) months imprisonment from the date of conviction.

The appeal on conviction is disallowed. The appeal on sentence succeeds. The appellant shall serve eighteen (18) months imprisonment from the date of conviction.

DATED and SIGNED at MERU this 25th day of August 2017

HON. S. CHITEMBWE

JUDGE

Dated, signed and delivered at Meru this 5TH day ofOctober, 2017

HON. A. MABEYA

JUDGE