[2013] KEHC 4873 (KLR)
The court found that the prosecution failed to prove the age of the complainant, which is a critical element in the offence of attempted defilement. No medical or documentary evidence was produced to confirm the complainant's age, and the trial court made assumptions in this regard. Since age distinguishes...
Source-derived case information.
- Citation
- [2013] KEHC 4873 (KLR)
- Parties
- Appellant: Mark Kariuki Nthia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 85 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- HI Ong'udi
- Legal Topics
- Sexual Offences, Attempted Defilement, Proof of Age, Standard of Proof, Retrial Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Kariuki Nthia
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution proved the age of the complainant beyond reasonable doubt as required for the offence of attempted defilement.
- 2 Whether the conviction for attempted defilement was safe in the absence of medical or documentary evidence of age.
- 3 Whether a retrial should be ordered in the circumstances of the case.
Ratio Decidendi
The court found that the prosecution failed to prove the age of the complainant, which is a critical element in the offence of attempted defilement. No medical or documentary evidence was produced to confirm the complainant's age, and the trial court made assumptions in this regard. Since age distinguishes defilement from rape, the absence of proof rendered the conviction unsafe. The court also considered whether a retrial would be appropriate but determined that it would be prejudicial to both the appellant, who had already served a significant portion of the sentence, and the complainant, whose willingness to testify again was uncertain. Consequently, the appeal was allowed, the...
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The appeal is allowed.
- The conviction is quashed and the sentence of 10 years imprisonment is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Criminal Appeal 85 of 2009
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MARK KARIUKI NTHIA.....….....................................APPELLANT
VERSUS
REPUBLIC …...........................................................RESPONDENT
(Being an Appeal from the Conviction and Sentence by D.O. ONYANGO Senior Resident Magistrate Runyenjes in Criminal Case No. 757 of 2008 on 29thApril 2009)
J U D G M E N T
MARK KARIUKI NTHIA was charged with the offence attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No. 3/2006. He also faced an alternative count of Indecent assault of a girl aged 18 years contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
From the evidence its indicated that PW1 was aged 15 years but there is nothing to confirm that. No medical or documentary evidence was adduced to confirm the age of the complainant. Both offences the appellant was charged with have a key element of age.
There are many ways of proving age. The Prosecution did not employ any of them. So the court made assumptions. Age is what distinguishes defilement from rape. This was not done. Would it be a suitable case for retrial? In the case of EKIMAT VS REPUBLIC [2005] 1 KLR,it was held that each case was to be considered on its own circumstances.
In this case the appellant has been in Prison since 29/10/2008 as he was never released on bond. He has served 3 years 7 months in jail. Considering remission he may have a period of about 3 years left to serve. The appellant was convicted of the offence of attempted defilement.
The complainant is over 18 years now and has probably undergone counseling. It is not known if she would be ready to come and face the appellant in Court again. I find that a retrial in the circumstances would be prejudicial to both the appellant and PW1.
I therefore allow the appeal and quash the conviction and set aside the sentence of 10 years imprisonment.
The appellant to be released unless otherwise lawfully held under a separate warrant.
DATED AND DELIVERED AT EMBU THIS 14TH DAY OF FEBRUARY 2013.
H.I. ONG'UDI
JUDGE
In the presence of:-
Ms. Macharia for State
Appellant
Njue CC