KILYUNGI MUTUA v REPUBLIC [2012] KEHC 2616 (KLR)

Facts

The appellant was charged with indecent act with a girl on June 15, 2007, at Kyuso District within Eastern Province. The prosecution alleged that the appellant duped the complainant into his house, locked the door, and had sexual intercourse with her. The appellant denied the charges and gave an unsworn statement.

Issues

1. the appellant's defence was not given due consideration
2. the complainant had not been subjected to medical examination
3. the evidence was insufficient to find a conviction
4. there was a grudge between the appellant and the complainant's mother
5. the sentence imposed was manifestly harsh and excessive

Reasoning

The evidence led proved the offence of defilement as opposed to indecent act. There was penetration according to the complainant. However, the trial court could not have convicted the appellant for that offence under section 179 of the Criminal Procedure Code since it was not minor to the offence initially preferred. The failure to comply with mandatory provisions of section 200(3) of the Criminal Procedure Code rendered the proceedings a nullity.

Outcome

Appeal allowed, conviction quashed, sentence set aside

Authorities cited