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Court of AppealPartially AllowedCriminal Appeal 8 of 2007· [2009] KECA 285 (KLR)

Lazaro Kundu Simiyu v Republic [2009] KECA 285 (KLR)

Court of Appeal of Kenya
29 May 2009
EOE.O. O'KubasuPWP.N. WakiJOJ.W. Onyango Otieno
2,440 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 20-year sentence to 10 years because courts cannot apply newer, harsher laws to older crimes.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (O'Kubasu, Waki and Onyango Otieno, JJA) dismissed a second appeal on conviction but allowed it in part on sentence in this defilement case. The appellant, convicted of attempted defilement by the Kitale Principal Magistrate and then reconvicted of the full offence of defilement on first appeal by Karanja, J at the High Court in Kitale, complained of contradictions in the prosecution evidence, the absence of laboratory tests, non-attendance of the complainant's mother, inadequate investigation, and excessive sentence. The court confined itself to points of law under section 361 of the Criminal Procedure Code and declined to disturb the concurrent findings of the two lower courts, which rested on the credibility of the 12-year-old complainant and the clinical officer's medical evidence of penetration. It also found no error in the first appellate court's correction of the trial magistrate's misdirection on the date of the medical examination. On sentence, however, the court was troubled that the offence was committed on 12th January 2003, before the amendment of section 145(1) of the Penal Code by Legal Notice No. 5/03 and before the Sexual Offences Act 2006 introduced minimum sentences. Applying the old regime of a 14-year maximum with judicial discretion, and consistent with Fred Michael Bwayo v Republic, the court set aside the 20-year sentence and substituted 10 years imprisonment with hard labour from the date of conviction on 22nd June 2006. The appeal was otherwise dismissed.

Key legal issues

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01

Circumscription of second appeals to points of law

Holding

The court declined to re-evaluate evidence, holding concurrent findings of the two lower courts stand absent absence of evidence or misapprehension of evidence.

Reasoning

Section 361 of the Criminal Procedure Code confines a second appeal to matters of law. The appellant's grounds challenged concurrent factual findings on credibility, penetration and identification. Following M'Riungu v Republic, the court refused fresh evaluation, noting the trial magistrate's misdirection on the medical evidence had been corrected on first appeal by the superior court.

p. 4
02

Retrospectivity in sentencing

Holding

The 20-year sentence was unlawful because the offence was committed before the amendment to section 145(1) of the Penal Code and before the Sexual Offences Act 2006 introduced minimum sentences; the applicable provision was the old section 145(1) with a maximum of 14 years and judicial discretion.

Reasoning

The offence was committed on 12th January 2003, long before Legal Notice No. 5/03 raised the age of protection and provided life imprisonment, and long before the Sexual Offences Act 2006 came into force. Applying the former law, the court found the sentence erroneously influenced by later considerations and reduced it to 10 years with hard labour, citing Fred Michael Bwayo v Republic.

p. 4

Legal principles established

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  • On a second appeal the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact unless those findings are based on no evidence at all or on a misapprehension of the evidence
  • An accused must be sentenced under the sentencing principles and penalties that obtained at the time the offence was committed; retrospective penal statutes, including minimum sentences under the Sexual Offences Act, cannot be applied to offences committed before their commencement

Court orders

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  1. 1.Set aside the sentence of 20 years imprisonment with hard labour
  2. 2.Substituted a sentence of 10 years imprisonment with hard labour running from the date of conviction by the trial court, i.e. 22nd June 2006
  3. 3.Dismissed the appeal on conviction and otherwise in its entirety
On appeal from
High Court of Kenya at Kitale
H.C. Cr.A. No. 63 of 2006
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on 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, "Lazaro Kundu Simiyu v Republic [2009] KECA 285 (KLR)", Case Analysis (2009). Criminal Appeal 8 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/285/eng@2009-05-29

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