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Court of AppealPartially AllowedCriminal Appeal 7 of 2008· [2009] KECA 287 (KLR)

Alex Wafula v Republic [2009] KECA 287 (KLR)

Court of Appeal of Kenya
29 May 2009
EOE.O. O'KubasuPWP.N. WakiAVAlnashir Visram
2,132 words in judgment
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The bottom line

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Kenya's Court of Appeal cut a 20-year sentence to 15 years because courts cannot apply newer sex-offence laws to older crimes.

What this practically means

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Executive summary

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This is a second and final appeal by Alex Wafula against his conviction for attempted rape and a sentence of 20 years imprisonment, following dismissal of his first appeal by the High Court at Kitale (Ochieng, J.). The prosecution case rested on the identification of the appellant by the complainant, the sole identifying witness, after an evening attack at a river crossing. The Court of Appeal held that identification was a matter of law within its jurisdiction, but found the concurrent findings of the two courts below sound: the prolonged struggle at close proximity, the complainant's prior acquaintance with the appellant as a neighbour, her prompt naming of her assailant to the authorities, and the appellant's flight from arrest all supported a positive identification; that ground failed. The appellant also alleged breach of his right to a fair trial under section 72(3) of the Constitution, having been arraigned four days beyond the allowable period. The Court, applying Morris Ngacha Njuguna, held the issue had not been raised timeously or by formal application, and the breach was not established on the material before the court; that ground also failed. On sentence, the Court found the courts below were unduly influenced by the Sexual Offences Act 2006, which came into operation after the offence was committed and whose minimum sentences did not apply. Holding the sentence of 20 years unlawful in that respect, the Court set it aside and substituted 15 years imprisonment from the date of conviction, dismissing the appeal in all other respects. This is a single judgment of the whole court, delivered by O'Kubasu, Waki and Visram, JJA, with no separate opinions.

Key legal issues

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01

Reliability of single-witness identification at night

Holding

The identification by the complainant was safe: the prolonged struggle at close proximity with a known neighbour, and her giving the assailant's name to authorities at the earliest opportunity, supported a positive identification

Reasoning

Although the offence occurred at about 7 p.m. on a dark night, the attack was prolonged and at very close physical proximity, so the conditions favoured recognition. The complainant had long known the appellant as a neighbour and gave his name and address to the provincial administration and police at the first opportunity. The appellant's flight from arrest was corroboration of a kind. The trial magistrate had the advantage of seeing the witness and was entitled to believe her; the superior court reassessed the evidence and reached the same conclusion, so this Court would not depart from those concurrent findings.

p. 3
02

Constitutional breach under section 72(3) for delay before arraignment

Holding

The claim failed because it was not raised timeously in the trial court and no formal application was made; each case stands or falls on its own facts and the breach was not established on the material before the court

Reasoning

The High Court found the appellant was held some four days beyond the allowable period but, following Morris Ngacha Njuguna, held that a party alleging violation must file an appropriate application so the issue can be investigated. The point was raised orally in submissions for the first time, ambushing the State, and the delay may have been explicable. This Court agreed that while it does not differ on section 72(6) compensation, the consequences of an established breach of personal liberty cannot be overthrown by side-wind; here the breach was simply not established.

p. 3
03

Sentencing for attempted rape where the offence predates the Sexual Offences Act 2006

Holding

The courts below were unduly influenced by the Sexual Offences Act 2006, which did not apply to an offence committed on 15th October 2005; the sentence was unlawful in that respect and was reduced from 20 to 15 years

Reasoning

Severity of sentence is ordinarily a question of fact excluded from a second appeal by section 361(1)(a) of the Criminal Procedure Code, but lawfulness of sentence falls under section 361(1)(b). The offence occurred before the Sexual Offences Act became operational on 21st July 2006; the applicable Penal Code provision left the court's discretion intact, permitting consideration of alternative punishment depending on circumstances and antecedents. Consistent with two judgments delivered the same day (Bwayo and Simiyu), the sentence was reduced.

p. 4

Legal principles established

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  • On a second appeal, identification is a matter of law within the jurisdiction of the Court of Appeal, but concurrent findings of fact by the two courts below will not be disturbed absent sound reason
  • Where the sexual offence predates the Sexual Offences Act 2006, the minimum sentences under that Act do not apply; the Penal Codeprescribed punishment applies and the court retains discretion as to the sentence
  • An alleged breach of section 72(3) of the Constitution (delay before arraignment) should be raised timeously, by a formal application in the trial court; it cannot be raised ambushing the State on appeal
  • Severity of sentence is a question of fact outside a second appeal by dint of section 361(1)(a) of the Criminal Procedure Code, but the lawfulness of a sentence may be considered under section 361(1)(b)

Court orders

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  1. 1.Sentence of 20 years imprisonment set aside and substituted with a sentence of 15 years imprisonment from the date of conviction by the trial court
  2. 2.The appeal is otherwise dismissed

Authorities

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Legislation

  • Penal Codesection 141
  • Penal Codesection 144(1)
  • Constitution of Kenyasection 72(3)
  • Constitution of Kenyasection 72(6)
  • Criminal Procedure Codesection 361(1)(a)
  • Criminal Procedure Codesection 361(1)(b)
  • Sexual Offences Act 2006section 8 (minimum sentences for defilement)

Cases cited (7)

  • David Waiganjo Wainaina v Republic
    Cr. A. No. 113/05
  • Albanus Mwasia Mutua v Republic
    Cr. A. (2006) eKLR
  • Gerald Macharia Guthuku v Republic
    Cr. A. 119/04
  • Ann Njogu & 5 others v Republic
    NBI Misc. Cr. App. 551/07
  • Morris Ngacha Njuguna & 3 others v Republic
    Cr. App. No. 232/06
  • Fred Michael Bwayo v R.
    Cr. A. 130/07
  • Lazaro Kundu Simiyu v. R.
    Cr. A. 8/07
On appeal from
High Court of Kenya at Kitale
H.C.CR.A. No. 75 of 2008
Jurisdiction invoked
Second and final appeal under the Criminal Procedure Code, conviction appeal on matters of law (section 361 Criminal Procedure Code)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alex Wafula v Republic [2009] KECA 287 (KLR)", Case Analysis (2009). Criminal Appeal 7 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/287/eng@2009-05-29

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