Samwel Kiberenge v Republic

The trial magistrate had observed the complainant's demeanour and found her truthful; her evidence articulated with the medical findings of infection consistent with sexual assault. The proviso to section 124 permits conviction on the sole evidence of a child victim where the court records reasons for being satisfied the child is telling the truth. The High Court's concurrent finding that the conviction was safe was not shown to be based on no evidence or wrong principles, so the second appeal court would not interfere.

The Court adopted its earlier decision in Julius Kamau Mbugua, holding that an alleged unlawful detention does not exonerate an accused from the serious crime charged. The record showed total custody of slightly over twenty-four hours, and the appropriate remedy was money compensation under section 72(6) of the former Constitution, to be sought in a different forum. The ground was therefore inconsequential to the appeal.

Section 8(2) provides only one sentence for defilement of a child aged eleven years or less: life imprisonment. Parliament gives no discretion to impose a lesser sentence for that age bracket. The issue of whether a lawful sentence was awarded is a matter of law, within the Court's jurisdiction on second appeal. As the victim's age of ten years was unequivocally proven, the trial court's thirty-year sentence was unlawful and the High Court correctly substituted the mandatory life sentence.