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Court of AppealDismissedCriminal Appeal No. 9 of 2013· [2015] KECA 312 (KLR)

Ezekiel Omwoyo v Republic [2015] KECA 312 (KLR)

Court of Appeal of Kenya
19 October 2015
2,350 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a defilement appeal, confirming that second appeals only review points of law, not facts.

What this practically means

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Executive summary

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The appellant was convicted by the Chief Magistrate's court at Kisii of defilement of a 10-year-old girl contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to life imprisonment, with an alternative charge of committing an indecent act with a child. His first appeal to the High Court at Kisii (Sitati, J.) was dismissed on 31st July 2012, prompting this second appeal before the Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A). The appeal was confined to issues of law under section 361(1) of the Criminal Procedure Code. The appellant raised six grounds: breach of his Article 50 rights through non-supply of witness statements; non-ascertainment of the complainant's age; failure to call the Chief and the complainant's mother; non-examination of the complainant within a reasonable time; a grudge between the complainant's father and himself; and the High Court's alleged failure to evaluate the evidence. The Court found no request for or order for supply of statements, so no breach arose. The complainant's cogent and reliable testimony, identifying the appellant as a person known to her, was corroborated by medical evidence of penetration, and the Court declined to disturb the concurrent findings of fact of the courts below. The complainant's age was on the P3 form and was never challenged. The grudge and alibi defences were afterthoughts never put to prosecution witnesses, and section 143 of the Evidence Act made it the prosecution's prerogative which witnesses to call. The appeal was dismissed in its entirety.

Key legal issues

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01

Alleged breach of Article 50 rights through non-supply of witness statements

Holding

The ground fails; the record shows no request for or order for supply of statements that was disobeyed by the prosecution.

Reasoning

The court examined the record and found no request by the appellant for written statements and no order by the trial court for their supply that the prosecution disobeyed. Without such an order, no breach of the appellant's Article 50 rights could arise, and the ground failed. The issue had also been raised and dismissed in the High Court.

p. 3
02

Whether the prosecution proved penetration and identification

Holding

Yes; the complainant's cogent evidence of a known assailant, corroborated by medical evidence of penetration, proved the case.

Reasoning

The complainant gave a detailed account of how the appellant, whom she knew and recognized, defiled her. Her evidence was corroborated by her grandmother who found bruises on her genitalia and by the clinical officer who found penetration from a ruptured hymen. Both courts below found the evidence cogent and reliable and the Court found no reason to interfere.

p. 3
03

Whether the complainant's age was ascertained

Holding

The age was on the P3 form and was never challenged; the concurrent finding stands.

Reasoning

The issue had been raised in the High Court, which found the complainant's age specified on the P3 form. In cross-examination the complainant said she was 11 years old, and the appellant never questioned or challenged her age at any stage. The age being unchallenged and uncontroverted, the Court could not interfere with the concurrent finding of fact.

p. 3
04

Whether failure to call the Chief and the complainant's mother was fatal

Holding

No; section 143 of the Evidence Act requires no particular number of witnesses and it was the prosecution's prerogative which witnesses to call.

Reasoning

Neither the Chief who arrested the appellant nor the complainant's mother was present during the incident and neither would have added anything. Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact, so it was the prosecution's prerogative to determine which witnesses to call.

p. 4
05

Alibi and grudge defences

Holding

Both were afterthoughts raised too late and did not displace the prosecution case.

Reasoning

The grudge over the land transaction and pit latrine money was never put to the prosecution witnesses in cross-examination, and the alibi surfaced only in cross-examination at the close of the trial. Both defences were found to be afterthoughts that did not shake the prosecution case, as the High Court had already found.

p. 4

Legal principles established

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  • In a second appeal under section 361(1) of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below.
  • An unchallenged and uncontroverted concurrent finding of fact by the courts below cannot be disturbed on second appeal.
  • By virtue of section 143 of the Evidence Act, no particular number of witnesses is required to prove a particular fact, and it is for the prosecution to decide which witnesses to call.

Court orders

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  1. 1.The appellant's appeal is dismissed

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006Section 8(1) as read with section 8(2)
  • Sexual Offences Act No. 3 of 2006Section 11(1)
  • Criminal Procedure CodeSection 361(1)
  • Criminal Procedure CodeSection 361(1)(a)
  • Evidence ActSection 143
  • Constitution of KenyaArticle 50

Cases cited (1)

  • Mwita v R.
    [2004] 2 KLR 60
On appeal from
High Court of Kenya at Kisii
H.C.CR.A. No. 95 of 2010
Jurisdiction invoked
Second appeal under section 361(1) of the Criminal Procedure Code, confined to matters of law

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, "Ezekiel Omwoyo v Republic [2015] KECA 312 (KLR)", Case Analysis (2015). Criminal Appeal No. 9 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/312/eng@2015-10-19

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