[2019] KEHC 8450 (KLR)
The court found that, since the complainant in this rape case was an adult and had voluntarily agreed to forgive the appellant following a reconciliation process involving both families and community leaders, and since the DPP did not object, it was appropriate to terminate the proceedings in the interest of social...
Source-derived case information.
- Citation
- [2019] KEHC 8450 (KLR)
- Parties
- Appellant: James Arap Chemor alias Koech; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 07 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal allowed; conviction and sentence set aside; appellant released unless otherwise lawfully held.
- Judges
- EM Muriithi
- Legal Topics
- Rape, Sexual Offences Act, Alternative Dispute Resolution, Withdrawal of Complaint
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Arap Chemor alias Koech
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction and sentence for rape should be upheld in light of the complainant's willingness to forgive the appellant and withdraw the complaint.
- 2 Whether reconciliation and forgiveness by an adult complainant in a rape case can justify termination of criminal proceedings under Article 159 of the Constitution.
Ratio Decidendi
The court found that, since the complainant in this rape case was an adult and had voluntarily agreed to forgive the appellant following a reconciliation process involving both families and community leaders, and since the DPP did not object, it was appropriate to terminate the proceedings in the interest of social harmony and pursuant to Article 159(2)(c) of the Constitution, which encourages alternative dispute resolution. The court distinguished this situation from cases involving defilement, where the complainant's minority would preclude valid forgiveness or withdrawal. Accordingly, the conviction was set aside and the appellant ordered released unless otherwise lawfully held.
Court Disposition
Appeal allowed; conviction and sentence set aside; appellant released unless otherwise lawfully held.
Orders
- The matter is terminated on the basis of the agreement by the complainant to forgive the appellant.
- The appellant shall be released from custody unless otherwise lawfully held.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
CRIMINAL APPEAL NO. 07 OF 2018
JAMES ARAP CHEMOR ALIAS KOECH.........APPELANT
VERSUS
REPUBLIC..........................................................RESPONDENT
[An appeal from the original conviction and sentence of the Principal Magistrate’s Court
at Kabarnet Cr. Case no. 19 of 2017 delivered on the 15th day of January, 2018
by Hon. N.M. Idagwa, RM]
JUDGMENT
1. The appellant was convicted and sentenced to imprisonment for ten (10) years for the offence of rape contrary to section 3(1) (3) of the Sexual Offences Act on 15/1/2018.
2. At the hearing of the appeal, the appellant informed the Court that the complainant with the facilitation of the family and the village members had discussed the matter and agreed to forgive the appellant.
3. The DPP did not oppose the process if the complainant was willing to forgive the appellant, having received a letter dated 29/4/18 in which the Assistant Chief, Koibarak Sub-Location had confirm that there was a meeting of both the families of the complainant and the appellant and it had agreed to forgive the appellant.
4. The Court considered that being an adult complainant in a charge of rape, the complainant may be allowed to withdraw the complaint or forgive the appellant and it was the duty of the Court under Article 159 to promote Alternative Dispute Resolution Mechanism of reconciliation in the context of the rape charge, even as I have held in recent cases at the appellate level. I heard the complainant on Oath confirm the meeting between the two families and of her willingness to forgive the appellant.
5. The position would, of course, have been different in cases of defilement where the complainants are of lower than the age of consent and incapable, therefore, of consenting to any sexual intercourse or of forgiving the act as any such consent or forgiveness would be that of be that of their guardians rather than of their own volution.
Orders
6. Accordingly, having noted the agreement of the adult complainant to forgive the appellant in the rape charge and the no-objection by the DPP who is the custodian of the State’s Prosecutorial Powers and further considering the benefit of social harmony and peace between the two families of the complainant and the appellant as evidenced by their settlement meeting, I allow the matter to be terminated on the basis of the agreement by the complainant to forgive the appellant.
7. While the appellant was properly convicted of rape contrary to section 3 (1) (3) of the Sexual Offences Act, the Court allows the termination of the matter on the basis of the agreement to reconciliation pursuant to Article 159 (2) (c) of the Constitution.
8. The appellant shall, therefore, be released from custody unless he is otherwise lawful held.
Order accordingly.
DATED AND DELIVERED THIS 10TH DAY OF APRIL 2019
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Ms. Macharia, Ass. DPP for the Respondent.