MOO v Republic (Criminal Appeal 112 of 2015) [2016] KEHC 1945 (KLR) (13 October 2016) (Judgment)
- Court
- High Court of Kenya
- Case number
- 1945
- Citation
- [2016] KEHC 1945 (KLR)
- Decided
- 13 October 2016
The conviction of committing an indecent act with a child is quashed, and the appellant is found guilty of delement contrary to section 8(2) of the Sexual Offences Act. The appellant is sentenced to three (3) years non-custodial sentence.
Facts
The appellant, MOO, was convicted of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, and sentenced to 10 years imprisonment. The appellant was a minor at the time of the offence.
Issues
- Whether the prosecution ought to have charged the appellant with the oence of delement or incest given they were cousins with the complainant.
- Whether the appellant’s constitutional right not to be held at the police cells for more than 24 hours after he was arrested, was violated.
Reasoning
The evidence did not support the charge of incest, and the appellant should have been charged with delement. The trial court failed to consider the appellant's status as a minor and the need for a speedy trial.
Outcome
Appeal successful, conviction and sentence quashed, new conviction and sentence imposed.
Orders
- Quash conviction of committing an indecent act with a child
- Convict appellant of delement contrary to section 8(2) of the Sexual Offences Act
- Sentence appellant to three (3) years non-custodial sentence
Remedies
- Revoke original sentence of 10 years imprisonment
- Impose new sentence of three (3) years non-custodial sentence
Authorities cited
Legislation (2)
- Sexual Offences Act, No 3 of 2006
- Children Act, 2001
Cases cited (1)
- Njuki and 4 others v R (2002) 1KLR 771
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