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Court of AppealPartially AllowedCriminal Appeal 8 of 2008· [2009] KECA 284 (KLR)

David Kundu Simiyu v Republic [2009] KECA 284 (KLR)

Court of Appeal of Kenya
29 May 2009
EOE.O. O'KubasuPWP.N. WakiAVAlnashir Visram
1,937 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a defilement conviction but cut a 40-year sentence to 15 years because the harsh minimum penalties in the 2006 Sexual Offences Act cannot apply to earlier offences.

What this practically means

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Executive summary

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The appellant, David Kundu Simiyu, was convicted by a Resident Magistrate of defilement of a girl under sixteen years contrary to section 145(1) of the Penal Code and sentenced by a Senior Principal Magistrate to forty years imprisonment. His first appeal to the High Court at Kitale (Ochieng, J.) was dismissed on 29th January 2008. On second appeal to the Court of Appeal at Eldoret, the appellant, appearing in person, complained of excessive sentence and the non-calling of a witness known as 'Mama Boy'. The Court, comprising O'Kubasu, Waki and Visram, JJA, held in a single judgment of the court that on a second appeal only points of law arise under section 361(1) of the Criminal Procedure Code and that it would not interfere with the concurrent findings of fact of the two courts below, which were based on the evidence of an eyewitness who found the appellant in the act. The appeal against conviction was rejected. However, the Court expressed concern that the forty-year sentence may not have been based on the sentencing principles in force when the offence was committed in December 2004, before the Sexual Offences Act 2006 with its minimum sentences came into force. Applying Amolo v R and Fred Michael Bwayo v Republic, the Court set aside the forty-year sentence and substituted fifteen years imprisonment with hard labour from the date of conviction, dismissing the appeal in all other respects. The decision binds subordinate courts on the limits of second appeals and the non-retrospective application of minimum sentences.

Key legal issues

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01

Scope of a second appeal on findings of fact

Holding

The Court declined to disturb the concurrent findings of fact of the trial magistrate and the High Court on identification and conviction, the appeal on conviction being unmeritorious.

Reasoning

By dint of section 361(1) of the Criminal Procedure Code, only points of law fall for consideration on a second appeal. The trial magistrate had the advantage of seeing and hearing the witnesses, found the prosecution witnesses truthful and rejected the appellant's defence as a lie. The first appellate court saw no reason to differ. The Court would not interfere with concurrent findings unless shown to be based on no evidence, invoking Kaingo v R.

p. 3
02

Lawfulness of the forty-year sentence

Holding

The sentence of forty years had no sound legal basis because it did not apply the sentencing principles in force when the offence was committed; it was set aside and substituted with fifteen years imprisonment with hard labour.

Reasoning

The offence was committed on 12th December 2004, when section 145(1) of the Penal Code gave judicial discretion in sentencing. The Sexual Offences Act with its minimum sentences came into force in 2006, after the offence, and could not apply. Relying on Fred Michael Bwayo v Republic and Amolo v R, the Court held it had jurisdiction to interfere with a sentence imposed on wrong principles and substituted fifteen years imprisonment with hard labour from the date of conviction.

p. 4

Legal principles established

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  • On a second appeal, only points of law fall for consideration and the Court will not interfere with concurrent findings of fact of the two courts below unless shown to be based on no evidence.
  • The Court of Appeal has jurisdiction to restore or substitute a sentence that was imposed on wrong principles, notwithstanding section 361(1)(a) of the Criminal Procedure Code.
  • Sentencing must be governed by the law in force at the time the offence was committed; provisions introduced later, such as the minimum sentences in the Sexual Offences Act, 2006, cannot be applied retrospectively to offences committed before it came into force.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Sentence of forty (40) years imprisonment set aside and substituted with fifteen (15) years imprisonment with hard labour from the date of conviction by the trial court

Authorities

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Legislation

  • Penal Codesection 145(1)
  • Penal Codesection 144(1)
  • Criminal Procedure Codesection 361(1)
  • Criminal Procedure Codesection 361(1)(a)
  • Criminal Procedure Codesection 215
  • Sexual Offences Actsection 8(2)
  • Sexual Offences Actsection 8(3)
  • Sexual Offences Actsection 8(4)

Cases cited (3)

  • KAINGO V. R.
    (1982) KLR 213
  • FRED MICHAEL BWAYO V. REPUBLIC
    Criminal Appeal No. 130 of 2007 (unreported)
  • AMOLO V. R.
    [1991] KLR 392
On appeal from
High Court of Kenya at Kitale
H.C.CR.A. No. 70 of 2006
Jurisdiction invoked
Second appeal under section 361(1) of the Criminal Procedure Code, points of law only

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, "David Kundu Simiyu v Republic [2009] KECA 284 (KLR)", Case Analysis (2009). Criminal Appeal 8 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/284/eng@2009-05-29

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