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Court of AppealDismissedCriminal Appeal No. 118 of 2013· [2016] KECA 571 (KLR)

Simiyu v Republic (Criminal Appeal 118 of 2013) [2016] KECA 571 (KLR)

Court of Appeal of Kenya
19 May 2016
EGE.M. GithinjiMartha Karambu KoomeM. KoomeHOH. Okwengu
3,138 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 20-year defilement sentence, ruling DNA tests and birth certificates aren't needed to prove the offence.

What this practically means

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Executive summary

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This is a second appeal by Evans Wamalwa Simiyu against his conviction for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, and a sentence of twenty years' imprisonment, following dismissal of his first appeal by the High Court (Mbogholi, J.) on 18th July 2013. The Court of Appeal (Githinji, Koome and Okwengu, JJA) heard the appeal under Section 361 of the Criminal Procedure Code, which confines a second appeal to matters of law. The appellant, appearing in person, argued that age was not proved absent a birth certificate or age assessment report; that the trial court should have ordered a DNA test under Section 36 of the Sexual Offences Act; that his six-day detention before arraignment violated his constitutional rights; and that his defence was disregarded. The Court held that defilement is complete upon penetration of a child, and that proof of age beyond establishing the victim is under eighteen concerns sentencing, not the offence itself; the complainant's apparent age of twelve, established through the voir dire examination and the doctor's P3 estimate, sufficed. DNA testing was discretionary and unnecessary where the victim identified the accused and medical evidence corroborated penetration. Following Julius Kamau Mbugua v Republic, the Court held that a breach of the twenty-four-hour arraignment right does not compel an acquittal, the remedy lying in damages. While finding that the trial magistrate misdirected himself in dismissing the appellant's total denial for failure to challenge prosecution evidence, the Court held no injustice arose. The appeal was dismissed in its entirety, the conviction and sentence confirmed. No costs order was made.

Key legal issues

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01

Relevance and proof of the complainant's age in defilement

Holding

Age is relevant only to establish the victim is a child under 18 for the offence, and to fix the applicable sentencing bracket; apparent age suffices where actual age is unknown.

Reasoning

Section 8(1) of the Sexual Offences Act defines defilement by penetration of a child. The Children Act defines 'age' as apparent age where actual age is unknown. The complainant's voir dire examination and the doctor's estimate on the P3 form established apparent age of 12, sufficient for both the offence and the section 8(3) minimum sentence.

p. 4
02

Whether a DNA test under Section 36 of the Sexual Offences Act is mandatory

Holding

The power is discretionary ('may') and its omission is not fatal where the victim identified the accused and there is medical corroboration.

Reasoning

The word 'may' in section 36 confers a discretion. Here the complainant identified the appellant, a person known to her, and Dr. Mayende's evidence confirmed spermatozoa on the vaginal swab, so DNA testing was unnecessary.

p. 5
03

Effect of detention beyond the constitutionally permitted period

Holding

Unexplained detention beyond twenty-four hours does not result in automatic acquittal; the remedy is damages.

Reasoning

Following Julius Kamau Mbugua v Republic, the violation of the right to be produced in court within twenty-four hours is not fatal to the prosecution; the accused may separately seek a remedy in damages for the constitutional breach.

p. 5
04

Failure to consider the appellant's defence

Holding

The trial magistrate misdirected himself in requiring the accused to challenge prosecution evidence, but the misdirection occasioned no injustice given the strength of the prosecution case.

Reasoning

A total denial leaves the burden entirely on the prosecution, and no adverse inference can be drawn from silence. Nonetheless, the evidence of the complainant, believed by the trial magistrate who saw her demeanor, and its medical corroboration, justified rejection of the defence without prejudice.

p. 6

Legal principles established

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  • A second appeal is confined to points of law; the Court will not interfere with concurrent findings of fact unless based on no evidence.
  • The offence of defilement is complete upon penetration of a child; proof of exact age beyond that the victim is under 18 is a matter for sentencing, not for establishing the offence.
  • Proof of age for establishing defilement must be distinguished from proof of age for sentencing purposes.
  • The power under Section 36 of the Sexual Offences Act to order DNA testing is discretionary, not mandatory.
  • Violation of the right to be produced in court within twenty-four hours does not automatically result in acquittal; the remedy is damages.
  • A total denial by an accused does not shift the burden of proof from the prosecution, and no adverse inference may be drawn from an accused's silence.

Court orders

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  1. 1.The appellant's conviction and sentence are confirmed
  2. 2.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Sexual Offences ActSection 8(1)
  • Sexual Offences ActSection 8(3)
  • Sexual Offences ActSection 8(2), 8(4), 8(5)
  • Sexual Offences ActSection 2
  • Sexual Offences ActSection 36
  • Criminal Procedure CodeSection 361
  • Criminal Procedure CodeSection 150
  • Criminal Procedure CodeSection 169(1)
  • Constitution of Kenya (former)Section 72(3)(b)
  • Constitution of Kenya, 2010Article 49(f)(i) and (ii)
  • Children ActSection 2 (definitions of 'Child' and 'age')

Cases cited (9)

  • Karingo v Republic
    [1982] KLR 219
  • Dzombo Mataza vs. R
    2014 eKLR
  • Okeno v Republic
    (1972)
  • Kaingu Elias Kasomo V R
    Malindi Criminal Appeal No. 504 of 2014 (Unreported)
  • Tumaini Maasai Mwanya V R
    Msa Criminal Appeal No. 364 Of 2010 (Unreported)
  • Stephen Nguli Mulili V Republic
    2014 eKLR
  • AML v Republic
    2012 eKLR (Mombasa)
  • Kassim Ali v Republic
    Cr Appeal No. 84 of 2005 (Mombasa) (unreported)
  • Julius Kamau Mbugua v Republic
    (2010) eKLR
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 129 of 2009
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal 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, "Simiyu v Republic (Criminal Appeal 118 of 2013) [2016] KECA 571 (KLR)", Case Analysis (2016). Criminal Appeal No. 118 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/571/eng@2016-05-19

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