J M O v Republic [2019] KEHC 9150 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CORAM:  MAJANJA J.

CRIMINAL APPEAL NO. 71 OF 2018

J M O..........................................APPELLANT

VERSUS

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

(Appeal from the original conviction and sentence of Hon. C.R.T Ateya – RM dated 10th January 2018 at the Senior Resident Magistrate’s Court at Ogembo in Sexual Offences Case No. 9 of 2017)

JUDGMENT

1. This is a case where the appellant was charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act, convicted and sentenced to 20 years imprisonment.  It was alleged that on 27th January 2017 at Misesi Sub-location, Gucha Sub-County within Kisii County, he intentionally caused his penis to penetrate the vagina of DN, a female aged 17 years who was to his knowledge his daughter.

2. Having perused the proceedings, I am satisfied that the appellant was not given an opportunity to present his defence on account of illness.

3. I therefore allow the appeal but shall order a retrial at the Ogembo Magistrate’s Court.  The appellant shall remain in custody pending trial until the complainant testifies.  He shall be taken for retrial on 15th March 2019.

Dated and delivered at Kisii this 7thday of March 2019.

D.S MAJANJA

JUDGE

Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.

Appellant in person.