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Court of AppealDismissedCriminal Appeal No. 136 of 2014· [2015] KECA 109 (KLR)

PNG v Republic [2015] KECA 109 (KLR)

Court of Appeal of Kenya
17 December 2015
2,245 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 a life sentence for incest, ruling second appeals can only challenge legal errors, not re-examine facts already found by two lower courts.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal (Nambuye, Kiage and Sichale JJA) against the dismissal by the High Court at Meru of the appellant's first appeal from his conviction for incest contrary to section 20(1) of the Sexual Offences Act and sentence of life imprisonment imposed by the Principal Magistrate's Court at Chuka. The appellant, appearing in person, complained that the allegation was a fabrication, that the first appellate court failed to make its own independent findings, that the medical evidence did not prove the offence, that the courts below shifted the burden of proof to him regarding his whereabouts, and that defects in the trial, including the administration of voir dire on the eight-year-old complainant, rendered the conviction unsafe. The respondent urged affirmation of the concurrent findings. The Court confined itself to matters of law under section 361 of the Criminal Procedure Code. It held that the first appellate judge correctly applied the Okeno principles, addressed every complaint and made findings supported by the record. The alleged contradiction on the time of the offence was minor. Calling on the appellant to account for his whereabouts was lawful under section 111(1) of the Evidence Act as matters within his knowledge. The failure to record voir dire questions was undesirable but did not vitiate the trial given substantial compliance and testing of the child on cross-examination. The appeal was dismissed in its entirety; no costs order was pronounced.

Key legal issues

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01

Scope of a second appeal on concurrent findings of fact

Holding

The Court is confined to matters of law under section 361 CPC and will not disturb concurrent findings unless based on no evidence, a misapprehension of the evidence, or wrong principles.

Reasoning

The Court invoked Chemagong, Karinga and Mwita to state the settled second-appeal standard: findings of fact are not for the second appellate court unless perverse or based on no evidence. The appellant invited the Court to depart from the concurrent findings, which the Court could accept only if no reasonable court could have reached them.

p. 2
02

Duty of the first appellate court

Holding

The High Court judge properly discharged his mandate by considering the whole record, reminding himself of his appellate role, and making findings on each complaint, which the Court of Appeal found sound.

Reasoning

Applying Okeno v Republic, the first appellate court must submit the evidence to a fresh and exhaustive examination and reach its own conclusions while making allowance for the trial court's advantage of seeing witnesses. The Court found the Judge summarized the evidence, addressed every complaint, and made findings supported by the record.

p. 3
03

Alleged shift of the burden of proof to the appellant

Holding

Requiring the appellant to account for his whereabouts at the material times was lawful under section 111(1) of the Evidence Act as those were matters especially within his knowledge.

Reasoning

The Court held the courts below did not shift the burden of proof; section 111(1) permits calling on an accused to explain facts especially within his own knowledge, citing Douglas Thiong'o Kibocha v Republic. The appellant failed to give particulars of where he was and with whom at 2.00pm and 4.00pm.

p. 3
04

Voir dire on the child complainant's evidence

Holding

Though desirable, failure to record voir dire questions on the record does not vitiate the trial where there is substantial compliance and the child's intelligence and truthfulness were tested on cross-examination.

Reasoning

Following Patrick Kathurima v Republic, noting voir dire questions is desirable because it enables courts to gauge the child's intelligence and ability to speak the truth. Here the child's responses were tested by cross-examination and by both courts below and found truthful and intelligent, in line with Nicholas Mutua; the minor's evidence was properly received and corroborated.

p. 4
05

Sufficiency of medical evidence and treatment of contradictions

Holding

The medical evidence of reddening of the labia and discharge corroborated the child's testimony of penetration, and the contradiction between PW1 (2.00pm) and PW2 (4.00pm) was minor and did not affect the substance of the prosecution case.

Reasoning

Applying Twehangane Alfred v Uganda, minor contradictions unconnected to the substance of the case may be ignored, while material ones affect evidential value. The P3 evidence demonstrated penetration corroborating the child's account, and the child's evidence could alone sustain conviction if the trial court was satisfied she was speaking the truth.

p. 3

Legal principles established

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  • A second appeal to the Court of Appeal is restricted to matters of law only, and the Court will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence, on a misapprehension of the evidence, or on wrong principles.
  • A first appellate court must re-examine the evidence as a whole, weigh conflicting evidence and draw its own conclusions, not merely scrutinise whether there was some evidence to support the trial court's findings.
  • An accused may be called upon to give an account of matters especially within his own knowledge, such as his whereabouts at the time of the offence, under section 111(1) of the Evidence Act, without any unlawful shift of the burden of proof.
  • Minor contradictions in prosecution evidence that do not affect the main substance of the case may be ignored; only contradictions touching material points seriously affect the value of the evidence.
  • Failure to record voir dire questions and answers on the child complainant's evidence is undesirable but does not vitiate a trial where there is substantial compliance, such as testing of the child's intelligence and truthfulness on cross-examination.
  • The prosecution is not required to call any particular number of witnesses to prove its case; the witnesses called are sufficient if their testimony is not shaken and the court is satisfied the complainant is speaking the truth.

Court orders

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  1. 1.The appellant's appeal is dismissed in its entirety
  2. 2.The conviction and life imprisonment sentence imposed by the trial court, as affirmed by the High Court, stand

Authorities

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Legislation

  • Sexual Offences Act, No. 3 of 2006section 20(1)
  • Sexual Offences Act, No. 3 of 2006section 11(1)
  • Criminal Procedure Codesection 361
  • Criminal Procedure Codesection 198
  • Criminal Procedure Codesection 169(1)
  • Constitution of Kenyasection 77(2)
  • Evidence Act, Cap 80section 111(1)

Cases cited (13)

  • Chemagong versus Republic
    [1984] KLR 611
  • Karinga versus Republic
    [1982] KLR 213
  • Reuben Kareri S/O Karanja verus Republic
    [1956] 17 EACA 146
  • Mwita versus Republic
    [2004] 2 KLR 60
  • Okeno versus Republic
    [1972] EA 32
  • Penalty versus Republic
    [1957] EA 336
  • Shantilal M. Ruwela versus Republic
    [1957] EA 570
  • Peters versus Sunday Post
    [1958] EA 424
  • Odhiambo versus Republic
    [2005] 1 KLR 176
  • Twehangane Alfred versus Uganda
    Criminal Appeal No. 139 of 2001
  • Douglas Thiong’o Kibocha versus Republic
    [2009] eKLR
  • Patrick Kathurima versus Republic
    [2015] eKLR
  • Nicholas Mutua & another versus Republic
    MSA Criminal Appeal No. 373 of 2006
On appeal from
High Court of Kenya at Meru
H.C. CR.A No. 141 of 2011
Jurisdiction invoked
Second appeal to the Court of Appeal under section 361 of the Criminal Procedure Code, restricted to 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, "PNG v Republic [2015] KECA 109 (KLR)", Case Analysis (2015). Criminal Appeal No. 136 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/109/eng@2015-12-17

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