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Court of AppealDismissedCriminal Appeal No. 99 of 2012· [2013] KECA 244 (KLR)

Ezekiel Oramat Sonkoy v Republic [2013] KECA 244 (KLR)

Court of Appeal of Kenya
26 July 2013
2,323 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a 20-year defilement sentence, ruling that consent is irrelevant when the complainant is a minor.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Kisumu by Ezekiel Oramat Sonkoyo against his conviction and 20-year sentence for defilement of a 14-year-old girl under section 8(1) as read with 8(3) of the Sexual Offences Act, after the High Court (Sitati, J) dismissed his first appeal on 20th January 2012. The trial magistrate had acquitted him on a second count of child trafficking. The appellant, in person, raised five grounds: a defective charge sheet, the date of the offence, absence of a first report, non-compliance with section 19 of the statutory declarations regime regarding the child witness, and a breach of article 50(2)(j) of the Constitution. The court restated that its jurisdiction under section 361(1)(a) of the Criminal Procedure Code is confined to questions of law, citing M'Riungu v Republic. It held that the charge was supported by the evidence, that any apparent consent was vitiated by the appellant's false promise of marriage and was in any event irrelevant given the complainant's age, that a proper voire dire was conducted and the child's sworn evidence corroborated, and that the constitutional complaint lacked merit. The court dismissed the appeal, affirming the conviction and sentence.

Key legal issues

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01

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

Holding

The court's jurisdiction is limited to issues of law; it must accept the findings of fact of the lower courts and not treat findings of fact as holdings of law.

Reasoning

The court invoked section 361(1)(a) of the Criminal Procedure Code and the decision in M'Riungu v Republic, holding that a second appellate court should resist the temptation to treat findings of fact as holdings of law and should interfere only where no reasonable tribunal could have reached the conclusion reached below.

p. 2
02

Sufficiency of evidence supporting the date of the offence and the charge sheet

Holding

The charge sheet was not irregular; the evidence of PW1, corroborated by PW2 and PW3, supported the charge as laid.

Reasoning

PW1's evidence confirmed that on 17th August 2010 she left home and accompanied the appellant, corroborated by PW2 and PW3. The first appellate judge on re-appraisal found intercourse occurred on the first night and over two months in Eldoret. The court agreed that the victim's apparent consent was vitiated by the appellant's false promise of marriage under sections 42 and 45 of the Sexual Offences Act, and that consent was irrelevant given the complainant's age.

p. 4
03

Evidence of a child witness and voire dire examination

Holding

The trial magistrate conducted and recorded a proper voire dire, established that PW1 understood the nature of an oath, and the sworn evidence was corroborated by other prosecution witnesses; the complaint had no substance.

Reasoning

Relying on Samuel Wahini v Ngugi, Johnson Muiruri v Republic and Peter Kiriga Kiune, the court restated the procedure for child witnesses: the court must form an opinion on voire dire whether the child understands the nature of an oath; sworn evidence may then be received, or unsworn evidence if the child has sufficient intelligence and understands the duty of speaking the truth, in which case corroboration is required. The record showed compliance.

p. 4
04

Absence of a first report and alleged constitutional breach (article 50(2)(j))

Holding

A report was made to the police and the District Officer by PW2, and the constitutional complaint was dealt with and rejected on first appeal; the court reached the same conclusion.

Reasoning

PW2 testified that upon finding PW1 missing he made reports to the police and the District Officer, defeating the 'no first report' ground. The article 50(2)(j) complaint had been considered at length by the learned judge on first appeal and found without merit, and the Court of Appeal saw no need to revisit it.

p. 4

Legal principles established

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  • On a second appeal under section 361(1)(a) of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and must not interfere with findings of fact of the trial or first appellate court unless on the evidence no reasonable tribunal could have reached that conclusion.
  • Evidence of children must be treated with utmost care; the trial court must conduct and record a proper voire dire examination before receiving a child of tender years as a witness, and its evidence, if unsworn, must be corroborated.
  • Where the complainant in a defilement charge is below the age of consent, consent is not a necessary ingredient of the offence and need not be proved.

Court orders

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  1. 1.The second appeal is dismissed
  2. 2.The conviction and 20-year sentence imposed by the trial magistrate, as affirmed by the High Court on first appeal, stand

Authorities

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Legislation

  • Sexual Offences ActSection 8(1) as read with Section 8(3)
  • Sexual Offences ActSection 13(a) and (b)
  • Sexual Offences ActSection 42
  • Sexual Offences ActSection 45
  • Criminal Procedure CodeSection 361(1)(a)
  • Criminal Procedure CodeSection 215
  • Oaths and Statutory Declarations Act (Cap 15)Section 19
  • Evidence Act (Cap 80)Section 124
  • Constitution of KenyaArticle 50(2)(j)
  • Statutory Declarations ActSection 19 (as raised in the memorandum of appeal)

Cases cited (7)

  • M'Riungu v Republic
    [1983] KLR 455
  • Martin v Glyneed Distributors Ltd (t/a MBS Fastenings)
    The Times of March 30, 1983
  • Kiarie v Republic
    [1984] KLR 739
  • Chemagong v Republic
    [1984] KLR 611
  • Samuel Wahini v Ngugi Republic (Criminal Appeal No. 218 of 2007 (ur))
  • Johnson Muiruri v Republic
    [1983] KLR 445
  • Peter Kiriga Kiune, Criminal Appeal No. 77 of 1982 (unreported)
On appeal from
High Court of Kenya at Kisii
HCCRA No. 124 of 2011
Jurisdiction invoked
Section 361(1)(a) Criminal Procedure Code (second appeal confined to questions of law)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Ezekiel Oramat Sonkoy v Republic [2013] KECA 244 (KLR)", Case Analysis (2013). Criminal Appeal No. 99 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/244/eng@2013-07-26

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