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JudgmentSADAM IDI ISSA VS The Republic4 min read

SADAM IDI ISSA VS The Republic

High Court at Voi High Court · · George. Dulu


(From the conviction and sentence in Sexual Offence Case No. E063 of 2022 at Taveta Law Courts delivered on 2nd January 2022 by Hon. C. L. Adisa (SRM)

  1. The appellant was charged in the Magistrate’s court with attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No. 3 of 2006.  The particulars of offence were that on 2nd February 2022 at around 1800hurs at Langata village Taveta Sub County within Taita Taveta County intentionally attempted to cause his penis to penetrate the vagina of G.C a child aged 12 years.
  2. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.  The particulars of offence were that on the same date and place intentionally touched the vagina of G.C  a child aged 12 years with his penis.
  3. He was also charged with count II of assault causing actual bodily harm contrary to Section 251 of the Penal Code.  The particulars of offence were that on the same date and place assaulted Getrude Chao occasioning her actual bodily harm.
  4. He denied all the charges.  After a full trial, he was convicted of attempted defilement contrary to section 9(1) of the Sexual Offences Act, and assault causing actual bodily harm contrary to Section 251 of the Penal Code, and sentenced to ten (10) years in custody for attempted defilement and three (3) years in custody for assault, to run concurrently.
  5. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal and relied on the following amended grounds of appeal:-
  6. The learned Magistrate erred in law and fact in failing to appreciate that the offence herein was committed by the appellant when he was temporarily insane.
  7. The learned trial Magistrate erred by failing to appreciate that the appellant did not cross-examine any of the witnesses or offer defence for himself.
  8. The learned trial Magistrate erred in failing to appreciate that the offence of attempted defilement was not provided.
  9. That the sentence imposed was harsh and excessive.
  10. The appeal was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by the appellant as well as the submissions filed by the Director of Public Prosecutions.
  11. This being a first appeal, I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno =Versus= Republic (1972) EA 32.
  12. In proving their case, the prosecution called four (4) witnesses.  On his part, the appellant elected to tender sworn defence testimony but after taking oath merely stated his name and said that he did not have anything else to say.
  13. Having perused and considered the evidence of the prosecution witnesses on record, which was not challenged by the appellant as he did not ask any questions in cross-examination, nor tender a defence statement, I find that all the elements of the two offences were proved beyond reasonable doubt.
  14. The age of the complainant PW2 was proved through a birth certificate produced by PW4 Cpl. Zainabu Kanguku the investigating officer.
  15. The attempt to defile was proved by the uncontested evidence of PW2 Getrude Chao the complainant, who testified that the appellant carried her into a bush, laid her down on the ground and lay on her and tried to undress but she splashed some mud in his eyes. 
  16. Additionally the assault and harm was proved by the evidence of PW2 as well as the medical evidence of PW3 Ombayo George – a Clinician at Taveta Sub County hospital to the effect that PW2 sustained a visible injury on the lower part of the breast, evidencing a deliberate attempt by the appellant to injure by biting her using his teeth.

  1. Thus in my view the elements of both offences for which the appellant was convicted were proved.
  2. Though the appellant now states on appeal that he was momentarily mentally unstable when the incident occurred, I note that before hearing commenced, there was a report filed dated 26th April 2022 indicating that the appellant was not fit to stand trial, which delayed his trial for sometime, but that does not help him as I will show hereafter.
  3. This is because, there was however, no indication in the report that he was mentally unstable at the time of the incident.  Secondly, the mental report was signed by a Clinical Psychologist not a psychiatrist which makes it an opinion from someone not technically qualified to determine mental health issues.
  4. In those circumstances, the law presumed the appellant to be of sound mind, as per the provisions of Section 11 of the Penal Code (Cap.63).  I will thus uphold the conviction.
  5. With regard to sentence, the concurrent prison sentence pronounced by the trial Magistrate were lawful, as the appellant elected to say nothing in mitigation.  I will thus also uphold the sentences imposed.
  6. Consequently, and for the above reasons, I find no merits in the appeal.  I dismiss the appeal and uphold both the conviction and sentence of the trial court.  Right of appeal 14 days explained.

Dated, signed and delivered this 29th day of May 2024 in open court at Voi.

In the presence of:-

Alfred/Chao – Court Assistants

Appellant

Mr. Sirima for State

    SADAM IDI ISSA VS The Republic SADAM IDI ISSA VS The Republic