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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 207 of 2013

Paul Chege Wanyoike v Republic [2016] KECA 605 (KLR)

Court of Appeal
29 April 2016
1,693 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld a 20-year sentence for indecent acts with a child, but ordered that nine months already spent in custody be deducted.

What this practically means

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Executive summary

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The appellant was charged in the Principal Magistrates' Court at Kapsabet with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, and in the alternative with committing an indecent act with a child contrary to section 11(1). The trial magistrate acquitted him of defilement for lack of evidence of penetration but convicted him of the indecent act and sentenced him to 20 years' imprisonment. The High Court at Eldoret upheld that decision on first appeal. On second appeal, the appellant argued that the charge sheet was defective because it alleged only contact with the complainant's thighs rather than her genital organs; that the 20-year sentence was illegal; and that the trial court failed to account for the 9 months he had spent in custody. The Court of Appeal, comprising Maraga, Gatembu Kairu and Murgor JJ.A, held that while an indecent act necessarily involves contact with genital organs, breasts or buttocks, the omission in the charge sheet was curable under section 382 of the Criminal Procedure Code as it occasioned no prejudice. It found the offence proved beyond doubt, affirming the concurrent findings of the courts below, and held the 20-year sentence lawful since the statute prescribes a minimum of ten years. However, the Court agreed that the 9 months in pre-conviction custody should have been taken into account. The appeal was accordingly dismissed save that the sentence was reduced by the 9 months already served in custody.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the charge was defective and at variance with the complainant's evidence
  2. 2.Whether the sentence of 20 years was legal
  3. 3.Whether the period served in custody ought to have been taken into account in computing the period of sentence

Key legal issues

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01

Whether the charge sheet was defective for referring only to contact with the complainant's thighs

Holding

The charge was not fatally defective; the omission of reference to the genital organs was curable under section 382 of the Criminal Procedure Code as no prejudice was caused.

Reasoning

The court noted that under section 2 of the Sexual Offences Act an indecent act necessarily involves contact with genital organs, breasts or buttocks, so the charge should also have specified contact with the vagina. However, under section 134 of the Criminal Procedure Code the charge sufficiently informed the accused of the offence, and the omission was curable under section 382 as it occasioned no prejudice or miscarriage of justice.

p. 3
02

Whether the offence of committing an indecent act with a child was proved

Holding

The offence was proved; contact with the vagina occurred in the course of the attempted penetration, and contact with the thighs was inherently involved.

Reasoning

The complainant's evidence that the appellant tried to insert his penis into her vagina, combined with the circumstances in which he emerged from the locked bathroom, established an indecent act. The court found that contact with the thighs would also have been made as that part of the anatomy is located closest to the genital organs, and declined to interfere with the concurrent findings of the courts below.

p. 3
03

Whether the sentence of 20 years was lawful

Holding

The sentence was lawful because the statute prescribes a minimum of ten years for committing an indecent act with a child.

Reasoning

Section 11(1) of the Sexual Offences Act prescribes a term of not less than ten years. A sentence of twenty years exceeds that minimum and therefore falls within the lawful range prescribed by the Act.

p. 3
04

Whether the 9 months spent in custody should have been deducted from the sentence

Holding

The period of 9 months in pre-conviction custody should have been taken into account and was ordered deducted.

Reasoning

The court agreed with the appellant that the trial court failed to take into account the 9 months he had been held in custody before sentencing, and ordered that the sentence of twenty years be reduced by that period.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal confines itself to matters of law and will not disturb concurrent findings of fact unless based on no evidence or arrived at on wrong principles.
  • An indecent act under the Sexual Offences Act necessarily involves contact with the genital organs, breasts or buttocks of either the victim or the offender.
  • Omissions in a charge sheet are curable under section 382 of the Criminal Procedure Code where no prejudice or miscarriage of justice is occasioned to the accused.

Court orders

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  1. 1.The appeal is dismissed save that the sentence of twenty years imprisonment be reduced by the period equivalent to the 9 months already served in custody

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Eldoret
H.C.CR.A. No. 87 of 2011
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, confined to matters of law

Relief refused

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Quashing of the conviction on the ground that the charge sheet was defective

The omission of reference to the victim's genital organs was curable under section 382 of the Criminal Procedure Code and caused no prejudice

p. 3

Reduction of the sentence of 20 years as unlawful

The Act prescribes a minimum of ten years, so a sentence of twenty years was lawful

p. 3

Costs

No order as to costs was made; the appeal was dismissed with only the sentence variation

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In sum, we find that the appellant's appeal is without merit, and we order that the same be and is hereby dismissed save that the sentence of twenty years imprisonment be reduced by the period equivalent to the 9 months already served in custody.
p. 3Final orders - dismissal of appeal with sentence adjustment
Only matters of law fall for consideration as the Court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or the courts below are shown demonstrably to have acted on wrong principals in making the findings.
p. 2Scope of a second appeal
an indecent act, as of necessity, involves contact with the genital organs, breasts or buttocks of either the victim or the offender
p. 2Definition of indecent act under the Sexual Offences Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Chege Wanyoike v Republic [2016] KECA 605 (KLR)", Case Analysis (2016). Criminal Appeal No. 207 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/605/eng@2016-04-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.