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Court of AppealPartially AllowedCriminal Appeal No. 33 of 2007· [2012] KECA 48 (KLR)

Daniel Kipngetich Sang v Republic [2012] KECA 48 (KLR)

Court of Appeal of Kenya
27 September 2012
AVAlnashir VisramMartha Karambu KoomeM. K. KoomeDavid Kenani MaragaD. K. Maraga
1,444 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man sentenced to life for rape committed when he was 14, ruling children can never be imprisoned under Kenyan law.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nakuru by Daniel Kipngetich Sang against his conviction for rape and life imprisonment imposed on 24th June 2004, which the High Court at Kericho (Kimaru, J) had confirmed on 25th July 2006. On 29th March 2011 a differently constituted bench of the same court had granted leave to adduce further evidence, and the appellant produced a birth certificate showing he was born on 8th October 1988, making him 14 at the time of the offence and 16 at conviction. The appeal raised the legality of the sentence, the defectiveness of a charge alleging rape committed jointly with others, and the sufficiency of the evidence. The court held that a minor cannot be sentenced to imprisonment, section 190(1) of the Children's Act prohibiting it, and that the best interests of the child are paramount in trial and sentencing. It further held, following Paul Mwangi Murunga v R, that a charge of rape committed jointly was defective since rape can only be committed individually. The State concurred that the sentence was illegal but urged substitution of a conviction for indecent assault; the court declined, finding the identification evidence unsafe as no identification parade was held and no description given, and noting the appellant had already served eight years. The court allowed the appeal, quashed the conviction, set aside the life sentence, and ordered the appellant's release forthwith unless otherwise lawfully held. The judgment was delivered on 27th September 2012 by Visram, Koome and Maraga, JJ.A.

Key legal issues

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01

Legality of sentencing a minor to life imprisonment

Holding

A sentence of imprisonment, including life imprisonment, cannot lawfully be imposed on a person who was a minor at the time of the offence and conviction; the Children Act governs sentencing of minors.

Reasoning

It was common ground that the appellant was 14 years old when charged and 16 when convicted. Section 190(1) of the Children's Act prohibits imprisonment of a child. Section 191 prescribes how a minor offender is to be dealt with. The paramount consideration is the best interest of the minor so that the child can be guided and rehabilitated; a life sentence defeats that objective and was therefore illegal.

p. 2
02

Defectiveness of a charge alleging rape committed jointly

Holding

The charge was defective because rape is an offence that can only be committed individually; each assailant must face a separate count.

Reasoning

Relying on Paul Mwangi Murunga v R, the court reaffirmed that two or more men cannot jointly rape one woman at the same time; each commits the act individually and must be charged on a separate count of rape. Gang rape not being an offence at the material time, the charge of rape committed 'jointly with others not before the court' was fatally defective.

p. 2
03

Sufficiency of identification evidence on the alternative count of indecent assault

Holding

The identification evidence was unsafe to sustain a conviction on the alternative charge, particularly where no identification parade was held and no description of the assailant was given.

Reasoning

The offence occurred at 7.00 p.m. in circumstances involving many assailants. No identification parade was conducted and neither the complainant's evidence nor that of the arresting officer showed how the appellant was identified, no description having been given. The evidence was unsafe, especially since the evidence supporting the main count had been discounted, and the eight years already served were more than adequate in any event.

p. 3

Legal principles established

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  • A child may not be sentenced to imprisonment; minors must be dealt with under the Children Act with their best interests as the paramount consideration.
  • Rape cannot be committed jointly by two or more persons; each assailant must be charged on a separate count.
  • On a second appeal the Court will not lightly disturb concurrent findings of fact of the trial court and the first appellate court.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction on the charge of rape quashed
  3. 3.Life sentence set aside
  4. 4.Appellant ordered to be released from prison forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Criminal Procedure CodeSection 361(1)(b)
  • Penal CodeSection 140
  • Children ActSection 190(1)
  • Children ActSection 191

Cases cited (2)

  • Pascal Wasike Okhwatene v R
    Cr. C. No. 96 of 1990 (Unreported)
  • Paul Mwangi Murunga v R
    Cr No. 35 of 2006
On appeal from
High Court of Kenya at Kericho
H.C.CR.A. No. 55 of 2004
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code (appeal on matters 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, "Daniel Kipngetich Sang v Republic [2012] KECA 48 (KLR)", Case Analysis (2012). Criminal Appeal No. 33 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/48/eng@2012-09-27

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