Case ID:167971

George Hugi Nyenga v Republic [2020] eKLR

Case Metadata

Case Number:

Criminal Appeal 66 of 2017

Parties:

George Hugi Nyenga v Republic

Date Delivered:

17 Dec 2020

Case Class:

Criminal

Court:

High Court at Nanyuki

Case Action:

Judgment

Judge(s):

Hatari Peter George Waweru

Citation:

George Hugi Nyenga v Republic [2020] eKLR

Case History:

(From original Conviction and Sentence in Nanyuki CM Sexual Offence Case No 12 of 2016 – W J Gichimu, PM)

Court Division:

Criminal

County:

Laikipia

History Docket No:

Sexual Offence Case 12 of 2016

History Magistrate:

W J Gichimu - PM

History County:

Laikipia

Case Outcome:

Appeal partly allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

CRIMINAL APPEAL NO 66 OF 2017

(From original Conviction and Sentence in Nanyuki CM Sexual Offence Case No 12 of 2016 – W J Gichimu, PM)

GEORGE HUGI NYENGA..................APPELLANT

VERSUS

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

J U D G M E N T

1.

The Appellant herein,

GEORGE HUGI NYENGA

, was charged in the main count with

defilement of a child

contrary to

section 8(1) & (2)

of the

Sexual Offences Act, 2006

. After trial however, he was convicted of

attempted defilement

contrary to

section 9(1) & (2)

of the same Act. On 02/05/2017 the Appellant was sentenced to fifteen (15) years imprisonment.

2.

Inexplicably, the Appellant was also convicted of the alternative charge of

committing an indecent act with a child

contrary to

section 11(1)

of the

Sexual Offences Act

. For this offence he was also sentenced to fifteen (15) years imprisonment, to run concurrently with the sentence in the main count.

3.

This conviction on the alternative charge is obviously unlawful and must be set aside. Having convicted the Appellant on the main charge, the trial court could not convict him also on the alternative charge for the simple reason that it was

alternative

to the main charge! The conviction and the sentence imposed are therefore set aside. It is so ordered.

4.

Regarding the conviction and sentence in the main count, the Appellant appealed only against the sentence. I have considered his submissions (he was unrepresented) as well as those of the learned prosecution counsel.

5.

There was obviously an aggravating factor in the commission of the attempted defilement – the very young age of the complainant (at 5 years!). The offence carried under the statute a minimum of ten (10) years imprisonment, with no upper limit. The Appellant got 15 years.

6.

To the credit of the Appellant, he was a first offender, a fact that the trial court did not comment upon. The Appellant has also told this court that he was born in 1991. So, at the time that he was sentenced in 2017 he was about 26 years old, a relatively young age. This is also a factor that the trial court ought to have considered in favour of the Appellant as every person deserves a second chance.

7.

I consider that the sentence of fifteen (15) years imprisonment meted out to the Appellant was manifestly harsh and excessive in the circumstances of the case. A shorter prison term would have served the ends of justice.

8.

I will in the circumstances partially allow the appeal against the sentence by setting aside the fifteen (15) years imprisonment awarded and substituting therefor ten (10) years imprisonment from the date the Appellant was sentenced. To that limited extent only is the appeal against the sentence in the main count allowed. It is so ordered.

9.

The conviction and sentence in respect to the alternative charge have already been set aside for illegality.

DATED AND SIGNED AT NANYUKI THIS 3

RD

DAY OF DECEMBER 2020

H P G WAWERU

JUDGE

DELIVERED AT NANYUKI THIS 17

TH

DAY OF DECEMBER 2020