[2019] KEHC 10564 (KLR)
The court found that the evidence against the appellant was overwhelming, with corroboration from both the complainant and an eyewitness. The conviction for attempted rape was upheld as the facts clearly established the offence. The sentence of five years imprisonment was affirmed as it is the mandatory minimum...
Source-derived case information.
- Citation
- [2019] KEHC 10564 (KLR)
- Parties
- Appellant: Nicholas Lokwony; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 201 of 2017
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal dismissed; conviction and sentence upheld with adjustment for pre-trial detention.
- Judges
- EM Muriithi
- Legal Topics
- Sexual Offences, Sentencing, Attempted Rape
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nicholas Lokwony
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for attempted rape was supported by the evidence.
- 2 Whether the sentence imposed was lawful and appropriate, considering pre-trial detention.
Ratio Decidendi
The court found that the evidence against the appellant was overwhelming, with corroboration from both the complainant and an eyewitness. The conviction for attempted rape was upheld as the facts clearly established the offence. The sentence of five years imprisonment was affirmed as it is the mandatory minimum under section 4 of the Sexual Offences Act. However, the court ordered that the period of imprisonment be computed from the date of arrest and detention, thereby accounting for the appellant's pre-trial custody. The appeal against sentence was dismissed for lack of merit, but the computation of sentence was adjusted to reflect time already served in pre-trial detention.
Court Disposition
Appeal dismissed; conviction and sentence upheld with adjustment for pre-trial detention.
Orders
- Conviction for attempted rape contrary to section 4 of the Sexual Offences Act upheld.
- Sentence of five years imprisonment affirmed as mandatory minimum.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KABARNET
CRIMINAL APPEAL NO. 201 OF 2017
NICHOLAS LOKWONY.....................................APPELLANT
VERSUS
REPUBLIC.........................................................RESPONDENT
[An appeal from the original conviction and sentence of the Principal Magistrate’s Court
at Kabarnet Cr. Case no 836 of 2016 delivered on the 11th day of December, 2016 by Hon. S.O. Temu PM]
JUDGMENT
1. The appellant who was convicted and sentenced to imprisonment for 5 years for attempted of rape contrary to section 4 of the Sexual Offences Act appeals from the sentence and offers, what he calls, “mitigation on the sentence”,seeking a non-custodial sentence.
2. The appellant was in pre-trial detention since 3/10/16 awaiting his trial which concluded with the Judgment and conviction on 20/12/16.
3. The prosecution’s evidence by the complainant (Pw1) and the witness Pw2 who went to rescue her and found her struggling with the appellant with her blouse off, and the appellant’s subsequent arrest by the complainant’s father and the police on being alerted by Pw2 when the appellant went for the Mkopa items he had left behind while fleeing the scene, when weighed against the appellant’s unsworn statement is overwhelming. There is no doubt as to the offence as the witness Pw2 confirmed the struggle between the complainant and the appellant which had left the former without her blouse with only a bra, as the appellant attempted to rape her.
4. The imprisonment for 5 years is a mandatory minimum sentence under section 4 of the Sexual Offences Act and the only discrepancy is the failure by the trial Court to consider the 2 month pre-trial detention of the appellant.
Orders
5. Accordingly, for the reasons set out above, the Court while upholding the conviction of the appellant for attempted rape contrary to section 4 of the Sexual Offences Act, finds no merit in the appeal from the sentence, which is a mandatory minimum sentence.
6. There shall, however, be an order for computation of the period of imprisonment for 5 years from 19/6/2016, the date of his arrest and detention in custody awaiting trial.
Order accordingly.
DATED AND DELIVERED THIS 29TH DAY OF JANUARY 2019
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Ms. Macharia, Ass. DPP for the Respondent