[2012] KEHC 1185 (KLR)
The conviction and sentence for incest cannot stand because the prosecution failed to establish the essential element of the offence—namely, the familial relationship between the appellant and the complainant as required by section 20(1) of the Sexual Offences Act. The only reference to the relationship was an...
Source-derived case information.
- Citation
- [2012] KEHC 1185 (KLR)
- Parties
- Appellant: Granton Jangani Ngolo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 364 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction and sentence reversed; retrial ordered.
- Judges
- GO Shikwe
- Legal Topics
- Sexual Offences, Incest, Elements of Offence, Plea of Guilty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Granton Jangani Ngolo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the relationship between the appellant and the complainant was sufficiently established to sustain a conviction for incest.
- 2 Whether the conviction and sentence for incest were proper in law given the evidence on record.
Ratio Decidendi
The conviction and sentence for incest cannot stand because the prosecution failed to establish the essential element of the offence—namely, the familial relationship between the appellant and the complainant as required by section 20(1) of the Sexual Offences Act. The only reference to the relationship was an ambiguous statement that the accused chased the complainant away on the basis that she was not his daughter, which is insufficient to prove the degree of relationship necessary for a conviction of incest. As a result, the court reversed the conviction and sentence and ordered a retrial before a court of competent jurisdiction.
Court Disposition
Conviction and sentence reversed; retrial ordered.
Orders
- The finding and sentence are reversed.
- The accused is to be tried by a court of competent jurisdiction.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Criminal Appeal 364 of 2010
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GRANTON JANGANI NGOLO …............................................. APPELLANT
VERSUS
REPUBLIC ….........................................................................RESPONDENT
( From the Original Conviction and Sentence in the Criminal Case No. 451 of 2010 of the Resident Magistrate's Court at Wundanyi – F. MUNYI – RM)
JUDGMENT
The Appellant GRANTON JANGANI NGOLO was Convicted and Sentenced to fifteen (15) years imprisonment for the offence of Incest by male contrary to section 20 (1) of the Sexual offences Act No. 3 of 2006.
He had pleaded guilty to the charge and had been treated as a first offender.
Section 20(1) of the Sexual offences Act defines Incest by male persons thus;
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten (10) years.”
A perusal of the facts presented before the trial magistrate do not show the relationship between the Appellant and the complainant. The only reference to the relationship is found in line 7 of the proceedings wherein it is alleged that “In June 2010, the Accused chased her away on the basis that she was not her daughter”.
That in itself is not sufficient explanation as to the relationship between the appellant and the Complainant.
The offence of incest is primarily based on the relationship between the assailant and the complainant and the degrees of that relationship are found in section 20 (1) of the Sexual offences Act. The relationship must be established. In the present case it has not.
In accordance with section 354 (3) (a) (1). I hereby reverse the finding and Sentence and order that the Accused to be tried by a Court of Competent Jurisdiction.
Judgment read, dated and delivered in open court this 8th day of November, 2012.
…........................
M. MUYA
JUDGE
In the presence of:-
Mr. Gioche for the state
The Accused
Masundi – Court clerk