Charles Kahiro Ng’ang’a v Republic [2009] KECA 373 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a child under sixteen cannot legally consent to sex, so even a consensual relationship is still defilement.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal under section 361(1) of the Criminal Procedure Code
The Court of Appeal on a second appeal may only determine issues of law; factual findings and sentence severity confirmed by the High Court are outside its jurisdiction.
The court set out section 361(1), which bars second appeals on matters of fact, treats severity of sentence as a matter of fact, and permits sentence appeals only where a sentence was enhanced by the High Court or the subordinate court lacked power to pass it. The court therefore confined itself to issues of law raised by the appellant.
Proof of the complainant's age as an ingredient of defilement under section 145(1) of the Penal Code
The complainant's age was sufficiently proved by her own evidence, her mother's evidence and the doctor's assessment, notwithstanding the mother's uncertainty about the year of birth.
The mother said the complainant was sixteen though unsure of the birth year; the complainant gave her date of birth as November 1988, making her fifteen at the offence date; Dr. Muira examined her and found her to be sixteen. There was thus evidence on which the two courts below were entitled to find she was under sixteen, and the second appeal court could not disturb such concurrent findings.
Consent as a defence to defilement of a girl under sixteen
Even where the sexual encounter was consensual, consent is no defence because a girl under the age of sixteen cannot legally consent.
Unlike the courts below, the Court found the encounter was consensual, inferring this from the complainant's concealment of the relationship and the appellant's unsolicited answer that she was his friend. However, the statutory offence of defilement under section 145(1) of the Penal Code excludes consent as a defence where the victim is under sixteen, so the conviction stood and the sentence was lawful.
Corroboration of the complainant's evidence
The complainant's evidence that a sexual encounter occurred was corroborated by her pregnancy and the birth of a baby girl.
The court noted her evidence on the occurrence of a sexual encounter was corroborated by the pregnancy and the birth of a child shown to the magistrate as an exhibit. On identity of the perpetrator, her own attribution to the appellant was accepted in light of the pregnancy timeline matching the encounter date of 16th October 2003.
Legal principles established
#- On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and cannot entertain appeals on matters of fact or on the severity of a sentence confirmed by the High Court; sentence may only be challenged where it is illegal or beyond the subordinate court's power.
- A second appeal court will not interfere with concurrent findings of fact of the two courts below where there was evidence upon which a reasonable tribunal, properly directing itself, could rely.
Court orders
#- 1.The appeal be and is hereby dismissed
- On appeal from
- High Court of Kenya at Nakuru
- H.C.CR.A. No. 18 of 2007
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal confined to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Kahiro Ng’ang’a v Republic [2009] KECA 373 (KLR)", Case Analysis (2009). Criminal Appeal 33 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/373/eng@2009-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.