Collins Akala Lusayi v Republic [2013] eKLR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL APPEAL NO. 141 OF 2010
COLLINS AKALA LUSAYI………………………APPELLANT
VERSUS
REPUBLIC……………………………….…..….RESPONDENT
(BEING AN APPEAL FROM THE ORIGINAL CONVICTION AND SENTENCE IN CRIMINAL CASE
NO. 2024OF 2010 REPUBLIC VS COLLINS AKALALUSASIIN THE RESIDENT MAGISTRATE’S
COURT AT KAPSABET BY G. MUTISORESIDENT MAGISTRATE ON 10TH SEPTEMBER 2010)
JUDGMENT
1. The appellant was convicted for the offence of defilement of a child aged nine years contrary to
section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006. He was
sentenced to life imprisonment. The appellant has appealed against his conviction and sentence.
The petition of appeal was filed in Court on 23rd September 2010. There are five grounds of
appeal. First, that the charge was not proved beyond reasonable doubt; secondly, that there was
no clear medical evidence to connect the accused with the offence;thirdly, that critical witnesses
were not called and that police investigations were incomplete or shoddy; fourthly, that the court
disregarded the appellant’s defence; and lastly, that the trial court did not give reasons for
convicting the appellant. The appellant has filed written submissions in support of the appeal. At
the hearing of the appeal, the appellant stated that he would rely wholly on those submissions.
2. The appeal is contested by the State. This is a first appeal to the High Court. I have re-evaluated
all the evidence on record and drawn my own conclusions. In doing so, I have been careful
because I have neither seen nor heard the witnesses. See Njoroge v Republic [1987] KLR 99,
Okeno v Republic [1972] EA 32, KariukiKaranja v Republic [1986] KLR 190.
3. When the charges were first read out to the accused on 19th May 2010, the appellant pleaded
guilty. A plea of guilty was entered. He was remanded awaiting the facts of the charge. On 7th
June 2010, the charges were read afresh. He changed his mind and pleaded not guilty. The case
was fixed for hearing on 10th September 2010. On that date, the complainant (PW1), his mother
(PW2) and one other witness (PW3) testified. In a nutshell, their evidence was that the appellant
defiled the complainant on the night of 15th May 2010 by inserting his penis in the complainant’s
anus. The complainant was a boy aged nine. This was clear from the mother’s evidence, the P3
form (exhibit 1) and the child’s immunization form (exhibit 2). The offence occurred at about 8.00
p.m on the material day at [particulars withheld] Nandi North District. The appellant was a
shamba boy employed by the complainant’s mother. He had been employed only three days
earlier. He had lured the boy to sleep with him in the kitchen. The appellant did not crossexamine any of the witnesses.
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