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Court of AppealDismissedCriminal Appeal No. 72 of 2013

Agm v Republic [2014] KECA 731 (KLR)

Court of Appeal
5 February 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
2,850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a victim's credible testimony alone can sustain a sexual offence conviction, and a second appeal cannot re-try facts.

What this practically means

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Executive summary

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The appellant AGM was convicted of incest by the trial magistrate's court and sentenced to life imprisonment; his first appeal to the High Court at Meru (Sitati, J.) was dismissed on 29 June 2006. On second appeal to the Court of Appeal at Nyeri (Visram, Koome & Odek, JJ.A), the appellant, unrepresented and arguing in person through an interpreter, raised five grounds attacking the partiality of the trial, alleged conflicting and uncorroborated testimony, the failure to summon vital witnesses, reliance on a clinical officer whose qualifications were not established, and the dismissal of his defence. The State opposed, relying on the concurrent findings of fact by the two lower courts. The Court reaffirmed that a second appeal is confined to points of law and will not disturb concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles. Applying the proviso to Section 124 of the Evidence Act, it held that the complainant's testimony, as the sole eye witness, could sustain the conviction given her consistent reports to elders and neighbours and the absence of any possibility of mistaken identity since she lived with the appellant as his daughter. Invoking Section 143 of the Evidence Act, it held the prosecution was not obliged to call any particular number of witnesses. The conviction and sentence were affirmed and the appeal dismissed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether on a second appeal the Court could interfere with the concurrent findings of fact by the two lower courts that the appellant committed incest
  2. 2.Whether the evidence of the single identifying witness, the complainant, required corroboration in a sexual offence under Section 124 of the Evidence Act
  3. 3.Whether the prosecution was under a duty to summon all vital witnesses mentioned at the trial
  4. 4.Whether the trial was conducted partially and irregularly
  5. 5.Whether the reliance on the testimony of the clinical officer without proof of his qualifications vitiated the conviction
  6. 6.Whether the trial magistrate erred in rejecting the appellant's sworn defence and the evidence of the defence witness
  7. 7.Whether the trial court erred in crediting witnesses allegedly instigated by a politician to give false evidence

Key legal issues

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01

Scope of a second appeal under Section 361 of the Criminal Procedure Code

Holding

The appeal is confined to points of law; the Court will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of evidence, or demonstrably wrong principles

Reasoning

The appellant had been convicted at trial and lost his first appeal to the High Court, producing concurrent findings of fact that he committed incest. Applying David Njoroge Macharia v R and Chemagong v Republic, the Court held those findings could not be disturbed absent an error of law, which the appellant failed to demonstrate.

p. 4
02

Corroboration of a single victim witness in a sexual offence

Holding

Under the proviso to Section 124 of the Evidence Act a conviction may rest on the uncorroborated testimony of the victim if the court, for reasons recorded, is satisfied the victim is telling the truth

Reasoning

Although the general rule in Maitanyi requires the greatest care when acting on a single witness, the proviso to Section 124 disapplies the corroboration requirement for sexual offences where the court records reasons for believing the victim. Here the complainant lived with the appellant as his daughter, so mistaken identification did not arise, and her account was consistent with reports to elders and neighbours.

p. 3
03

Duty of the prosecution to call vital witnesses

Holding

The prosecution need not call any particular number of witnesses; no evidential value would have been added by summoning persons who never witnessed the offence

Reasoning

Relying on Section 143 of the Evidence Act and Julius Kalewa Mutunga v Republic, the Court held that calling witnesses is a matter for the prosecution's discretion, interferable with only on proof of an oblique motive. The complainant was the sole eye witness and her testimony was corroborated by PW2, PW3 and PW4, so no miscarriage of justice arose from the failure to call further witnesses.

p. 3
04

Competence of the clinical officer and weight of his evidence

Holding

Even if the clinical officer's testimony were given little or no weight, the complainant's testimony was adequate to prove the offence; no objection to his competence was raised at trial

Reasoning

The appellant contended the clinical officer's qualifications were not established as the law demands. The Court noted no objection to PW7's competence was raised when he testified, and that the complainant's evidence independently and adequately proved the carnal knowledge charged, so any deficiency in PW7's evidence was immaterial to the safety of the conviction.

p. 4
05

Alleged partiality and irregularity of the trial and rejection of the defence case

Holding

Mere allegations of a partial and irregular trial cannot dislodge the prosecution evidence; the defence testimony was considered and did not shake the prosecution case

Reasoning

The appellant's claim of bias was unsupported by any illustration of irregularity, and being the sole breadwinner was irrelevant to the ingredients of the offence. The High Court had already found that the appellant's sworn defence and DW2's testimony were considered; DW2 knew nothing of the events and offered no direct, circumstantial or credible evidential material.

p. 4

Legal principles established

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  • On a second appeal the Court of Appeal is confined to points of law and will not interfere with concurrent findings of fact of the two lower courts unless those findings are based on no evidence, on a misapprehension of the evidence, or on demonstrably wrong principles
  • In a criminal case involving a sexual offence, the evidence of the alleged victim alone may sustain a conviction where the court, for reasons recorded in the proceedings, is satisfied that the victim is telling the truth
  • The prosecution is under no duty to call any particular number of witnesses; whether to call a witness is a matter within its discretion which an appellate court will not disturb absent an oblique motive
  • An appellate court will not interfere with findings based on the credibility of witnesses unless no reasonable tribunal could have made such findings

Court orders

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  1. 1.The appeal is dismissed; the conviction and sentence of life imprisonment are upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
Martha Karambu Koome
Martha KoomeJA
Currently serving
majority
JO
majority
On appeal from
High Court of Kenya at Meru
H.C.C No. 137 of 2002
Jurisdiction invoked
Second appeal under Section 361 of the Criminal Procedure Code, confining the appeal to matters of law

Relief refused

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Quashing of the conviction and sentence of life imprisonment for incest

The Court found no error of law and declined to disturb the concurrent findings of fact of the two lower courts, there being overwhelming evidence supporting the conviction

p. 5

Costs

No order as to costs is recorded in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings.
p. 2Scope of a second appeal
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
p. 3Corroboration in sexual offences under Section 124 of the Evidence Act
As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive
p. 3Prosecution's discretion on witnesses to call
The totality of our consideration of the grounds of appeal and the submissions made by the appellant and the State is that this appeal has no merit and is dismissed.
p. 5Final orders and disposition
It is our considered view that even if the testimony of PW 7 is given little or no weight, the testimony of the complainant is adequate to prove that the appellant committed the offence as particularized in the charge sheet.
p. 4Sufficiency of victim's evidence notwithstanding medical evidence issues

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Agm v Republic [2014] KECA 731 (KLR)", Case Analysis (2014). Criminal Appeal No. 72 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/731/eng@2014-02-05

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