[2015] KEHC 15 (KLR)
The court found that the plea of guilty entered by the appellant was not unequivocal because the facts presented did not include a medical report to conclusively establish the complainant's age as a child under the Children Act. The production of a birth certificate was insufficient in light of the appellant's...
Source-derived case information.
- Citation
- [2015] KEHC 15 (KLR)
- Parties
- Appellant: Lawi Kitungat Kitur; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 8 of 2015
- Procedural Posture
- Criminal Appeal / Ruling on Appeal Against Conviction and Sentence
- Outcome
- appeal allowed; conviction quashed; sentence set aside; retrial ordered
- Legal Topics
- Plea Taking, Sexual Offences, Defence of Mistake of Age
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawi Kitungat Kitur
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Appeal Against Conviction and Sentence
Legal Issues
- 1 Whether the plea of guilty entered by the appellant was unequivocal.
- 2 Whether the absence of a medical report confirming the complainant's age rendered the conviction unsafe.
- 3 Whether the appellant had a valid defence under Section 8(5) of the Sexual Offences Act.
Ratio Decidendi
The court found that the plea of guilty entered by the appellant was not unequivocal because the facts presented did not include a medical report to conclusively establish the complainant's age as a child under the Children Act. The production of a birth certificate was insufficient in light of the appellant's mitigation that the complainant had told him she was above eighteen years, thereby raising a defence under Section 8(5) of the Sexual Offences Act. This omission rendered the conviction unsafe, and the plea could not be considered unequivocal. Consequently, the conviction was quashed and the sentence set aside, with an order for a retrial before a different magistrate.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; retrial ordered
Orders
- The conviction of the appellant by the lower court is quashed.
- The sentence imposed by the lower court is set aside.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
HIGH COURT CRIMINAL APPEAL NO. 8 OF 2015
LAWI KITUNGAT KITUR…………….…………………..…APPELLANT
VERSUS
REPUBLIC………………………………………………..RESPONDENT
(Being appeal from the conviction and sentence in Kilgoris SPM NO. 114 of 2004) (Hon. B.A. Ochieng Ag. SPM)
RULING
1. Appellant pleaded guilty before the lower court and was accordingly convicted and sentenced to fifteen years (15) imprisonment in accordance with Section 8(3) of the served offences act. The conviction and sentence were “prima facie” proper if regard is not given to the manner in which the plea was taken by the court. Herein, the appeal basically challenges the manner in which the plea was taken thereby rendering the plea of guilt not to have been unequivocal.
2. This court upon due consideration of the appeal and its supporting grounds and noting that the state/respondent concedes to it, would uphold the same on the basic ground that when the facts of the case were read to the appellant they were not accompanied by a medical report to confirm that the complainant was indeed a child in terms of the Children Act. Yes, a birth certificate was produced (Pex2) but it was not conclusive proof of age regard being given to the fact that in mitigation the appellant indicated that the complainant informed him that she was above eighteen (18) years.
3. This therefore provided a defence under Section 8(5) of the Sexual Offences Actthereby negating the plea of guilty which therefore became equivocal. Following the foregoing reasons, the appeal is allowed with the result that the conviction of the appellant by the lower court is hereby quashed and the sentence set aside.
4. There shall however be a re-trial of the case before a different magistrate of competent jurisdiction at the PM court Kilgoris.
In the meantime, the appellant be set at liberty and be remanded in police custody at Kilgoris police station to await a re-trail. Counsel be at liberty to apply for bond in the trial court.
J.R. KARANJAH
JUDGE
[Delivered and signed this 3rd day of December 2015].