Ben Sifuna Lusweti v Republic [2018] KEHC 6324 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CRIMINAL APPEAL NO. 79 OF 2014

( Appeal arising from original conviction and sentence in criminal case No. 3189 of 2007 delivered by J.A. Owiti Senior Resident Magistrate on 12/6/2013)

BEN SIFUNA LUSWETI ..................................... APPELLANT

VERSUS

REPUBLIC ........................................................ RESPONDENT

J U D G M E N T

1. The appellant was charged with the offence of Defilement of a child with mental disability contrary to Section 7 of the Sexual Offences Act No. 3/2006.  The particulars of the charge were  that on the 21st day of October 2007 at [particulars withheld] in Trans-Nzoia District within Rift Valley province, by  use of his  genital organ  namely penis caused penetration into genital organ namely vagina of M.N. a child aged 14 years with mental disability.

2. He was equally charged with the offence of Indecent assault to a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.  The particulars were  that on the 21st day of October 2007 at [particulars withheld] in Trans-Nzoia District within Rift Valley province, indecently assaulted M.N. a girl aged 14 years old by touching her vagina.

3. The appellant was convicted  and sentenced to 10 years imprisonment. He has however in his appeal mitigated arguing that he has  served one third of his term and he prays that the remaining term he be allowed to serve under probation.

4. The  brief facts as per the proceedings at the trial court that PW1 the minor who has some mental challenges was left home  on the material day  when her parents had gone to church.

The appellant who was a neighbour took advantage and defiled her. Later when her mother  PW2 arrived she informed her.  She took her to Kitale District hospital where P3 form was filled and the child  treated. She also reported the matter to the police.

5. PW3 from Kitale police station gender desk carried out the investigations on behalf of PC(W) Lilian Wekesa who had recorded statements from the witnesses and preferred charges against the appellant.

6. PW4 Chrisantus Masindethe clinical officer from Kitale District hospital produced the P3 form which showed that the complainant's hymen was  broken and there was spermatozoa in her vagina. He also produced the P3 form for the appellant.

7. PW5 Dr Paul Nyangwe  produced  the mental report on behalf of Dr Ng'ang'a which showed the complainant to be suffering from some mental retardation.

8. Both the appellantand his witnessEdwin Lusweti gave some alibi in their defence. According to them the appellant was not at the scene that particular day.

9. Having stated so however, I find the evidence by the complainant clearly corroborated by her mother and  the medical reports produced. She was Sexually assaulted and the identity of the perpetrator despite her mental status clearly established.

10. This appeal stood  no chance. However considering the history of this matter, and the period already served in custody, its my view that the appellant has learned his lessons. Beside  I find that he spent considerable time in custody during  trial.

11. Consequently, the appeal is hereby dismissed. The appellant is hereby set free unless lawfully held. He shall however serve the rest of the term under probation  within the appropriate  jurisdiction as shall be determined by the probation officer.

Orders accordingly.

Delivered, signed and dated at Kitale this  10th day of May 2018.

__________________

H.K. CHEMITEI

JUDGE

10/5/18

In the presence of:

M/S Kakoi for the Respondent

Appellant – present

Court Assistant – Kirong

Judgment read in open court.