GODFREY MATSITSI v REPUBLIC [2010] KEHC 1559 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

Criminal Appeal 103 of 2009

GODFREYMATSITSI……………………………………..APPEALLANT

=VERSUS=

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

(An Appeal from the conviction and sentence of A. Alego, Esq. Senior Resident Magistrate at Eldoret delivered on 24th June 2009 in CMCC Case No. 3846 of 2009)

JUDGMENT

I.Background

1. The Original Accused and now Appeallant in this Appeal was charged in the Subordinate Court with the offence ofDefilementContrary to Section 3(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. Particulars of OffenceOn the 21stday of June 2009 in Lugari District within Western Province unlawfully and intentionally caused penetration with his genital Organ … of a child namely R.M.M aged 14 years old.

2.       An alternative charge was also preferred beingIndecent ActContrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.

Particulars of Offence

On the 21stday of June 2009 in Lugari District within Western province unlawfully and intentionally indecently assaulted a child (a girl) namely R.M.M aged 14 years by touching her …

3. The Appeallant appeared before the Trial Magistrate (SRM) on the 24th June 2009.  The Interpretation in Court was    English/Kiswahili.  The Charge was read on count one and the Appeallant pleaded guilty.  The Alternative Count was therefore

not considered on this plea on Count No.1.

4. A Plea  of guilty being entered, the facts were narrated to the Appeallant of how on21stJune 2009he gave a lift to the minor, a student at a Primary School in Standard 6. The Appeallant diverted his bike into a forest where he forced the minor to undress and defiled her.It was her screams that attracted members of public who apprehended the Appeallant.Medical evidence indicated the minor was defiled.Although she was found to be HIV negative, she had Sexually Transmitted Disease (STD) found on her.

5. The Appeallant in reply to the facts read to him in details stated “ It is true, I slept with her”.  In mitigation he stated he was alone with  his siblings”  The Trial Magistrate gave a Sentence being a deterrent  Sentence and sentenced the Appeallant to 30 years imprisonment on the24th June 2009.

6. Being aggrieved with both the Conviction and Sentence the Appeallant filed an Appeal to this  High Court on the 8th July 2009 through his Advocate.  This Appeal was admitted for hearing (Mwilu J) on the 9th march 2010.

II.Appeal Procedure

7. On the day called out, the Advocate for Appeallant was absent.  The said Advocate was on strike.

8. The Court proceeded with this Appeal as permitted by law under Section 354 of the Criminal Procedure Code where it is not necessary for the parties, the Advocate and or Appeallant to attend Court.

III.Appeal

9. The Petition of Appeal being

(a)The trial Magistrate erred in law and fact in failing to ascertain the language understood by the Appeallant,

(b)In failing to inquire into the abuse of the Appeallant’s Constitutional rights that made the  entire proceedings null and void,

(c)… in meting out a sentence that was excessive in the circumstances,

(d)… the medical evidence … was inconclusive and required corroboration,

(e)…Failing to warn the Appeallant on the consequences of pleading  guilty to the charge,

(f)… disregarded procedure as to conviction, mitigation and  sentence.

10. In reply to this Petition the Advocate for the Republic argued that the language used was clearly indicated  English/Kiswahili translation.  The Appeallant participated to the proceedings and made admission of  “it is true” and further stated

“ I slept with her”This in itself indicated that he understood the language.  Case law

Paul Nakua Eyan

=vrs=

Republic

Cr.A. 241/2006

(Omolo,Githinji, Aluoch JJA)   refers.

11. As to the sentence the term 20 years imprisonment was a minimum sentence met.

IV.Opinion

12. A plea of guilty had been entered.  The Principal found in the case law of  Adan vrs Republic (1973) E.A 445 was accordingly met in the procedure of taking down evidence on a plea of guilty.

13. Under Section 348 of the Criminal Procedure Code it states that

“ No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate Court, except as to the extent or legality of the sentence”.

14. To this end, the appeal against conviction cannot stand to be heard where a plea of guilty has been entered.  The issue of the language does not arise, as from the proceedings, the Court indicated the language used.  The response from the Appeallant was understood.  At the stage of the Plea, Medical Evidence, documentary, was produced to Court.

15. The appeal on conviction is dismissed.

16. As to the Sentence of 30 years imprisonment, the trial Magistrate took into consideration that the victim a minor aged 14 years old was dehumanized and unable to consent to the sexual offences.  The aspect of “deterrence” was the basis for the sentence of 30 years imprisonment.  I do not intend to interfere with sentence as it does not amount to an illegality in any way.  The appeal against sentence is also rejected and dismissed.

DATED THIS 15TH DAY OF JULY 2010ELDORET.

M.A ANG’AWA

JUDGE

17. Right of  appeal within 14 days.

Section 379 (3) Criminal Procedure Code.

M.A. ANG’AWA

JUDGE.

Advocate

(i)J.K. Chirchi, Senior State Counsel instructed by the office of the Attorney General

for the State/Respondent-Present

(ii)Ms Buluma Advocate instructed by the firm of M/s Buluma and Co. Advocate for the

Appeallant- Absent - advocates being on strike

(iii)Godfrey Matsitsi (Appeallant in person)-Present