Jilo Abdalla Akare v Republic [2015] KECA 455 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a life sentence for defilement, ruling that a second appeal can only challenge legal errors, not re-argue facts already settled by lower courts.
What this practically means
#Executive summary
#Key legal issues
#Scope of a second appeal under section 361 of the Criminal Procedure Code
A second appeal is confined to points of law; issues of fact determined by the first appellate court are outside the Court of Appeal's remit, and concurrent findings of fact will not be disturbed unless based on no evidence or on a misapprehension of the evidence.
The Court applied the long-standing rule in Chemagong v Republic that findings of fact settled by the first appellate court bind a second appellate court. The appellant's claim of a fabricated prosecution and the challenge to the weight of evidence were matters of fact already settled concurrently by the trial court and the High Court, and the appellant demonstrated neither absence of evidence nor misapprehension of evidence.
Proof of the complainant's age in a defilement case
The complainant's age was sufficiently proved by a combination of her own testimony, the testimony of family members, and a dentist's age-assessment report produced in evidence as an exhibit.
The Court accepted that as of the date of the offence DK was 8 years old, based on her statement in court that she was 9 years old when she testified in May 2010, and on a dentist's assessment that she was approximately 10 years old as of 24th June 2010. The dentist's report was produced by the medical officer as an exhibit, and there was evidence on record to satisfy both courts below on age.
Admissibility of unsworn evidence of a child of tender years
A child of tender years who does not understand the nature of an oath but is sufficiently intelligent may give unsworn evidence, and a voir dire conducted by the trial court to determine this satisfies the law.
Section 19 of the Oaths and Statutory Declarations Act is an express exception to the general requirement under the Criminal Procedure Code that all evidence in a criminal trial be given under oath. The trial court had conducted a voir dire and found DK intelligent but unable to understand the oath. In any event, the appellant's advocate cross-examined DK and no prejudice was demonstrated.
Sufficiency of medical and circumstantial evidence of defilement where blood-stained garments were not examined
The absence of forensic examination of the blood-stained garments did not undermine the conviction given the complainant's evidence found truthful under the proviso to section 124 of the Evidence Act and compelling medical evidence of penetration.
The medical evidence of lacerations and active bleeding pointed to penetration consistent with defilement. Combined with the complainant's truthful and firm identification of the appellant, a well-known neighbour of four years, the daytime occurrence, prompt reporting, emergency surgery within four hours, and the appellant's own admission placing himself at the house, the evidence was overwhelming and the conviction safe.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to issues of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
- A trial court may receive the unsworn evidence of a child of tender years who does not understand the nature of an oath but is possessed of sufficient intelligence, under section 19 of the Oaths and Statutory Declarations Act.
- Where a child complainant's evidence is specifically found and recorded by the trial court to be truthful under the proviso to section 124 of the Evidence Act, absence of forensic examination of other items of evidence does not necessarily vitiate the conviction.
Court orders
#- 1.The appeal is dismissed in its entirety
- On appeal from
- High Court of Kenya at Malindi
- H.C.CR.A. No. 88 of 2011
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to points of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jilo Abdalla Akare v Republic [2015] KECA 455 (KLR)", Case Analysis (2015). Criminal Appeal No. 115 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/455/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.