[2005] KEHC 1218 (KLR)
The court found that the evidence did not establish the offence of indecent assault because there was no proof that the appellant, with his own hand, touched the complainant's sexual organ as required by law. The complainant's testimony, while alleging defilement, was not corroborated by medical evidence, which...
Source-derived case information.
- Citation
- [2005] KEHC 1218 (KLR)
- Parties
- Appellant: Wilson Nasambi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 307 of 2004
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Indecent Assault, Defilement, Evidence Contradictions, Corroboration, Sexual Offences, Standard of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Nasambi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence supported a conviction for indecent assault under section 144(1) of the Penal Code.
- 2 Whether the complainant's testimony was reliable and corroborated.
- 3 Whether the absence of physical evidence of penetration or injury affected the conviction.
Ratio Decidendi
The court found that the evidence did not establish the offence of indecent assault because there was no proof that the appellant, with his own hand, touched the complainant's sexual organ as required by law. The complainant's testimony, while alleging defilement, was not corroborated by medical evidence, which showed no injury or penetration. The clinical officer's findings were inconclusive regarding the nature of the discharge found. The trial magistrate could have considered a conviction for attempted defilement, but not indecent assault, given the lack of evidence of manual contact with the complainant's genitalia. Consequently, the conviction was quashed and the sentence set aside.
Court Disposition
appeal_allowed
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Criminal Appeal 307 of 2004
WILSON NASAMBI .................................………….............................. APPELLANT
- Versus -
REPUBLIC ........................................................................................... RESPONDENT
Coram: Before Hon. Justice Mwera
In person for State/Respondent
Ademba for Accused/Applicant
Court clerk – Kazungu
J U D G M E N T
The appellant was charged under section 145 (1) Penal Code in that on 22/8/2004 at [particulars witheld], Taita-Taveta he had carnal knowledge of MM a girl under the age of 16 years.
After trial he was convicted of the lesser offence of indecent assault contrary to section 144(1) of the Penal Code and given 3 years imprisonment with hard labour on 16/11/2004.
In his petition of appeal it was claimed that the complainant (P.W.1) contradicted herself in her evidence. That her mother (MM, P.W.2) had a grudge with the appellant arising from P.W.2’s livestock destroying his crops. That there was no evidence that the complainant was defiled (he was convicted of indecent assault) and that only stains (not said to be of what) were found on P.W.1’s under garment.
The learned State Counsel supported conviction and sentence – on the indecent assault charge, in that the complainant’s evidence was reliable and besides, it was corroborated by Restituta Mghoi (P.W.4), a clinical officer.
To convict one for the offence of indecent assault, it must be proved that the offender, with his hand(s) touched the female’s sexual organ (the genitalia) and not otherwise (see Isaac Omambia Vs Republic CR.APPEAL 47 of 1995 C.A. unreported).
The complainant told the learned trial magistrate:
“The accused followed me from behind and he pulled me by force and took me to his house. He removed his trouser (sic) and also removed my pant. Then he defiled me inside his house.”
In cross examination she said:
“You removed your penis and inserted (sic) into my organ.”
The clinical officer found no injury to P.W.1’s genitalia but she noted some discharge she did not ascertain whether it was normal discharge or spermatozoa. There was no penetration; the hymen was not broken.
From all the above the learned trial magistrate probably could have convicted the appellant of attempted defilement but not indecent assault because there was no evidence that the appellant with his own hand touched the complainant’s organ.
In sum this appeal is allowed. The conviction is quashed and the sentence set aside. The appellant to be set at liberty unless otherwise lawfully held.
Judgment accordingly.
Delivered on 31st October 2005.
J.W. MWERA
JUDGE