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Court of AppealDismissedCriminal Appeal 299 of 2008· [2010] KECA 220 (KLR)

P.m.m v Republic

Court of Appeal of Kenya
25 June 2010
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
1,132 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that second appeals only examine points of law, so the father's 20-year incest conviction stands.

What this practically means

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Executive summary

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This was a second appeal by P.M.M., a peasant farmer from Murangá District, against his conviction for incest by male contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006 and his sentence. He had been convicted by the Senior Resident Magistrate at Kangema and sentenced to life imprisonment. On first appeal, Kasango, J of the High Court at Nyeri, by judgment dated 28th October 2008 in H.C. CR. Appeal No. 242 of 2007, upheld the conviction but reduced the sentence to twenty years imprisonment. Before the Court of Appeal at Nyeri (Tunoi, Githinji and Onyango Otieno, JJA), the unrepresented appellant raised three grounds, none on a point of law, essentially reiterating his denial of the offence and his claim of a frame-up. The complainant, the appellant's third-born daughter, testified that her father sexually assaulted her repeatedly from the age of 13, from February 2005 until November 2006, when she was found pregnant; her younger sister witnessed an assault, and teachers, a Children's Officer and a P3 form corroborated her account. The court reiterated the settled principle that a second appeal is confined to points of law and that it will not interfere with concurrent findings of fact of the two courts below unless shown to be based on no evidence, applying Kaingo v Republic. Holding that the conviction rested on very sound evidence and that the first appellate court was entitled to uphold it, the Court dismissed the appeal in its entirety on 25th June 2010, leaving intact the conviction and the twenty-year sentence. No costs order was recorded.

Key legal issues

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01

Scope of a second appeal under the Court of Appeal's jurisdiction

Holding

A second appeal is confined to points of law; the Court of Appeal will not disturb concurrent findings of fact by the trial court and the first appellate court unless those findings were based on no evidence.

Reasoning

The appellant, unrepresented, raised grounds that merely reiterated factual denials already rejected by both courts below. The court reiterated the settled limitation on second appeals, citing Kaingo v Republic, and held that the concurrent factual findings of guilt, supported by corroborated testimony of the complainant, her sister, teachers and a medical report, could not be revisited on a second appeal.

p. 3
02

Safety of the conviction for incest under section 20(1) of the Sexual Offences Act

Holding

The conviction was safe: the complainant's testimony was adequately corroborated by her sister, teachers and the medical report, and it mattered not that she also had sexual relations with another man.

Reasoning

The complainant's evidence described repeated sexual assaults by her father from age 13, corroborated by her younger sister who witnessed an incident on 14th November 2006, by a Children's Officer, by teachers, and by a P3 form confirming pregnancy. The alleged relationship with a local boy did not undermine the complainant's credibility or the fact of incest by the appellant.

p. 2

Legal principles established

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  • A second appeal to the Court of Appeal must be confined to points of law and the Court will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction and the sentence of twenty (20) years imprisonment imposed by the High Court stand
On appeal from
High Court of Kenya at Nyeri
H.C.CR. APPEAL No. 242 OF 2007
Jurisdiction invoked
Second appellate jurisdiction over an appeal from the High Court on a criminal appeal (Article 164(1)(c) Court of Appeal jurisdiction; appeal from High Court exercising first appellate jurisdiction)

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, "P.m.m v Republic", Case Analysis (2010). Criminal Appeal 299 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/220/eng@2010-06-25

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