[2003] KEHC 39 (KLR)
The High Court found that the evidence accepted by the trial court, particularly the testimony of the complainant and her mother, was sufficient to support a conviction for indecent assault. The appellant's actions—removing the complainant's underpants, threatening her with a knife, and physically restraining...
Source-derived case information.
- Citation
- [2003] KEHC 39 (KLR)
- Parties
- Appellant: Nahashon Kipkurui Langat; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 111 of 2001
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal against conviction dismissed; appeal against sentence partially allowed.
- Judges
- JW Lessit
- Legal Topics
- Indecent Assault, Defilement, Lesser Offence Conviction, Evidence of Minors, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nahashon Kipkurui Langat
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence supported a conviction for indecent assault contrary to Section 144(1) of the Penal Code.
- 2 Whether the trial court erred in convicting the appellant of a lesser offence not charged.
- 3 Whether the sentence imposed was excessive.
Ratio Decidendi
The High Court found that the evidence accepted by the trial court, particularly the testimony of the complainant and her mother, was sufficient to support a conviction for indecent assault. The appellant's actions—removing the complainant's underpants, threatening her with a knife, and physically restraining her—constituted an unlawful and indecent act. The court held that it was within the trial court's power to convict the appellant of the lesser offence of indecent assault under Section 186 of the Criminal Procedure Code, even though he was originally charged with defilement. The appeal against conviction was therefore rejected. However, the court found that the sentence of 8 strokes...
Court Disposition
Appeal against conviction dismissed; appeal against sentence partially allowed.
Orders
- Conviction for indecent assault confirmed.
- Sentence of 4 years imprisonment confirmed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Criminal Appeal 111 of 2001
(From original conviction and sentence in Criminal Case No.2945 of 1999 of the Senior
Resident Magistrate Court at MOLO – J. KIARIE (S.R.M.)
NAHASHON KIPKURUI LANGAT…………............................................................………..APPELLANT
VERSUS
REPUBLIC…………............................................................………….……………………RESPONDENT
J U D G M E N T
The Appellant has appealed against conviction for a charge of INDECENT ASSAULT contrary to Section 144(1) of the Penal Code for which he had not been charged.
He had been charged with DEFILEMENT contrary to Section 145(1) of the Penal Code and with creating a disturbance in a manner likely to cause a breach of the peace contrary to Section 95(1)(b) of the Penal Code.
The State Counsel does not support the conviction on grounds that there was no evidence to support the charge of defilement and also that Appellant was convicted of indecent assault. He argued that since the Appellant did not say what the Appellant did to her then no charge was proved. The evidence of the two minor children PW1 and PW2 was that the Appellant lied to them that their family animals were in his shamba and then he directed PW2, the minor boy to go one direction and the Complainant PW1 to go the other to drive them out. He followed the Complainant PW1. PW1 on her part testified and said that the Appellant pointed a knife at her and threatened to kill her if she talked. He held her neck. He held her mouth and a tooth came off. He then lifted her skirt and removed her under pants. He also strangled her and threw her under pants inside the bamboo. She screamed and her mother, PW3 came upon which the Appellant ran away.
PW3, the Complainant’s mother confirmed going to the scene in answer to the Complainant’s muffled cries. He saw the Appellant release the Complainant leaving behind his hat. At the scene which had bamboo bushes, she saw the Complainant’s pants thrown down.
The court accepted the evidence of the Complainant and found PW3’s evidence corroborated it on material particulars. He found that the charge of defilement had not been proved but that the offence of indecent assault was proved. He then convicted on that lesser charge under Section 186 of the Criminal Procedure Code.
I am satisfied that the evidence accepted by the court was sufficient to support a charge of indecent assault. The Appellant had removed the Appellant’s panty and was strangling her. PW3, Complainant’s mother and others went to the scene prompting the Appellant to run away.
The court did find that the Appellant removed the Complainant’s pant. I am satisfied that that is an unlawful and Indecent Act. I do understand the State Counsel’s predicament that the prosecution must prove particulars of an offence of Indecent Assault in line to the Omambia’scase (Cap No.47 of 1995) where no particulars are framed, as in this case, the evidence must show that some indecent assault was unlawfully committed against the Complainant. In this case, the court found that the Appellant’s act of driving the Complainant, a little girl into the bush and by holding her forcefully and removing her pants, that act constituted an offence of Indecent Assault.
I am satisfied that the court’s finding was correct. I do find that the evidence before court did support the offence Appellant was convicted of. I am also satisfied that it was within the court’s power to convict on the said charge. I reject the appeal against the conviction.
On sentence of 4 yars and 8 strokes of the cane, the Appellant was treated as a first offender. The offence was indeed serious. While I do not find 4 years imprisonment excessive as to deserve this court’s intervention, the sentence of 8 strokes of the cane was excessive.
I confirm the sentence of 4 years imprisonment but reduce the strokes of the cane to 4. I also confirm the sentence of Hard Labour. The appeal against sentence succeeds to the extent hereof.
Dated and delivered at Nakuru this 27th day of March, 2003.
Read signed and delivered in presence of Appellant
Mr. Mutuku for State.
JESSIE LESIIT
JUDGE