[2013] KEHC 1999 (KLR)
The court found that the evidence presented at trial, including the complainant's testimony, corroboration by other witnesses, and medical evidence, overwhelmingly established the offence of defilement by the appellant. The appellant did not challenge the conviction on appeal but only the sentence, arguing for...
Source-derived case information.
- Citation
- [2013] KEHC 1999 (KLR)
- Parties
- Appellant: Limo Mgandi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 317 of 2010
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- GO Shikwe
- Legal Topics
- Defilement, Sexual Offences Act, Sentencing Principles, Evidence Corrobation
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Limo Mgandi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for defilement was supported by sufficient evidence.
- 2 Whether the sentence imposed was lawful and appropriate.
Ratio Decidendi
The court found that the evidence presented at trial, including the complainant's testimony, corroboration by other witnesses, and medical evidence, overwhelmingly established the offence of defilement by the appellant. The appellant did not challenge the conviction on appeal but only the sentence, arguing for leniency. The trial court had already considered the appellant's youth and imposed a sentence of ten years, which was below the statutory maximum of twenty years. The appellate court held that there was no basis to interfere with either the conviction or the sentence, as both were supported by law and the facts of the case.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The conviction and sentence of ten years imprisonment are upheld.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 317 OF 2010
LIMO MGANDI …......…................................................….. APPELLANT
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From original Conviction and Sentence in Criminal Case No. 1503of 2010 of the Principal Magistrate's Court at Kwale – Hon. Ogembo - PM)
JUDGMENT
LIMOS MGANDI hereinafter referred to as the Appellant was Convicted and Sentenced to ten (10) years imprisonment for the offence of defilement contrary to section 8(3) of the Sexual offences Act.
The particulars being that on the 17th day of October, 2009 at [Particulars withheld] Village in [Particulars withheld] Location in [Particulars withheld] - Kwale County he intentionally and unlawfully committed an act which caused his penis to penetrate the Vagina of M. N. a girl aged fifteen (15) years.
Brief facts of the case are that the complainant, the appellant and others had attended all night prayers commonly called “Kesha”.
The Complainant was a niece to the appellant. On their way home at about 4:00 am the appellant offered to escort the complainant home but before reaching their destination he wrestled her down removed her underpants and his and had sexual intercourse with her. Meanwhile she screamed for help and Appellants twobrothers arrived.
The appellant instructed them to proceed to have sex with the complainant but they declined.
The complainant upon arriving home reported the incident to her parents and the appellant was later arrested and charged.
The complainants step mother did testify on the age of the victim as fifteen (15) years. Its to her that the matter was first reported and took the liberty of reporting to the village chairman and the police. A perusal of the proceedings before the trial Court indicate that complainants evidence was corroborated by PW 2 who had earlier escorted her but was told to go away by the appellant. When the Complainant screamed for help they went to her rescue only to find the appellant lying on top of her and having sexual intercourse with her.
The Doctor who examined her found that she had bruised Labia Minora and a perforated hymen with fresh bruises with bloody discharge which was consistent with defilement.
I am satisfied that there was overwhelming evidence to arrive at the finding that the appellant had defiled the Complainant.
In his submissions the appellant does not seem to attack the Conviction but the Sentence stating that he has reformed.
In Sentencing the Appellant to ten (10) years imprisonment, the trial court was very lenient as the offence carries an imprisonment term of twenty (20) years. It is however noted that he did consider the appellant as relatively young being nineteen (19) years old.
I find no reason to disturb the Conviction and Sentence.
The appeal has no merit and its dismissed.
Judgment dated and delivered in open court this 18th day of September, 2013.
…................
M. MUYA
JUDGE
18TH SEPTEMBER, 2013
In the presence of:-
Learned state Counsel Miss Ogweno
The appellant present
Court clerk Mr. Musundi