NEWTON CHOMBA WATHITHA v REPUBLIC [2012] eKLR
NEWTON CHOMBA WATHITHA……………………………..APPELLANT
VERSUS
REPUBLIC………..…………..………………………………RESPONDENT
From original conviction and sentence of B.J. NDEDA – SRM in Cr. case No. 533 of 2008
delivered on 19/5/2008 at the Resident Magistrate’s Court at GICHUGU
JUDGMENT
The Appellant herein was charged before the Gichugu SRM’s Court vide CR. CASE NO. 533 OF 2008
with two offences viz;
1. CHILD TRAFFICKING CONTRARY TO SECTION 13(b) OF THE SEXUAL OFFENCES ACT NO.3
OF 2006
Particulars stated in the charge sheet were as follows;
NEWTON CHOMBA WAITHITHA: On the diverse dates between 11th and 16th day of May 2008 in
Kirinyaga District within Central Province did hobour A.K.G a girl under the age of 15 years for
the purpose of having unlawful carnal connection with her.
2. DEFILEMENT OF A GIRL UNDER THE AGE OF 15 YEARS CONTRARY TO SECTION 8(1) and
(3) OF THE SEXUAL OFFENCES ACT NO.3 OF 2006
The particulars stated in the charge sheet were as follows;
MEWTON CHOMBA WATHITHA: On the diverse dates between 11th and 16th day of May 2008 in
Kirinyaga District within Central Province had unlawful carnal connection of A. K.G a girl under
the age of 15 years.
On 19/5/2008 when the matter came for plea the charges were read to the accused and he pleaded
guilty to both counts. Facts were read out to the accused who admitted both counts. There was no
conviction on any of the counts and the trial Magistrate went ahead to take mitigation and gave
sentence.
One cannot be sentenced before he/she is convicted of an offence. This is procedurally wrong. Secondly
the facts presented before the court on 19/5/2008 did no disclose any offence known in law. Section 13
of the Sexual Offences Act which was the subject of count one was repealed in 2010. And in any event
the Appellant was not convicted of that offence.
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