Akiba Chembe Mwaravino v Republic [2013] KEHC 2505 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 237 OF 2011

AKIBA  CHEMBE MWARAVINO …............................….…..…..APPELLANT

VERSUS

REPUBLIC  ……….……....................................................…RESPONDENT

(From the Original Conviction and Sentence in the Criminal Case No.  51 of 2011 of the Senior Resident Magistrate's Court at Mariakani Hon. Machage - SRM)

JUDGMENT

The Appellant AKIBA CHEMBE MWARAVINO was Convicted and Sentenced to ten (10) years imprisonment for a charge of indecent act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2004.

The appeal is conceded on the grounds that the  charge reads that the indecent act of touching the complainants private  parts was on the 4th November, 2010.

Secondly, that the sexual offences Act came into commencement in the year 2006 but not year 2004 as indicated in the charge itself.

A perusal of the record does indicate that the complainant never mentioned the date of 4th November, 2010 as when she was indecently assaulted. She does  indicate the month of November as the period in which the Accused/Appellant started seducing her.

A week later she had sexual intercourse with the Appellant at the office.  She further told the court  that she  had sexual intercourse with the Appellant five times.

The charge sheet should have read,

“On diverse dates as the exact dates seem to have escaped the complaints memory.”

I have also noted as conceded by learned state counsel that the Appellant had  been charged under the wrong  law.

The sexual offences Act came into commencement in the year 2006 not 2004 as indicated in the charge sheet.  I find the charge to be fatally defective.

The Conviction  is quashed and Sentence set aside. He is set at liberty unless otherwise lawfully held.

Judgment dated and delivered in open Court this 3rd day of September, 2013.

….................

M.  MUYA

JUDGE

3RD SEPTEMBER, 2013

In the presence of:-

Learned state Counsel Miss Ogweno

The Appellant

Court clerk Musundi