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Court of AppealDismissedCriminal Appeal No. 50 of 2016· [2017] KECA 26 (KLR)

Patrick Mutwiri v Republic [2017] KECA 26 (KLR)

Court of Appeal of Kenya
12 October 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
4,250 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 second appeals only examine questions of law and that a victim's exact age need not be strictly proved in sexual offence cases.

What this practically means

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Executive summary

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This was a second appeal by Patrick Mutwiri against his conviction on an alternative charge of committing an indecent act with a child and a sentence of ten years' imprisonment, after the High Court at Malindi (Chitembwe, J.) dismissed his first appeal on 27 October 2015. The trial court had acquitted the appellant of the principal charge of defilement for want of a prima facie case but convicted him on the alternative charge. Before the Court of Appeal (Visram, Karanja and Koome, JJ.A), the appellant argued that the procedure adopted at trial was fatally defective and warranted a mistrial; that the refusal to order a de novo hearing after a change of magistrate and the failure to recall PW2 and PW3 infringed his right to a fair trial; that the complainant's age was never proved since no birth certificate or age assessment was produced; and that his alibi defence was ignored. The Court framed three issues: want of procedure and its consequences, sufficiency of the prosecution case, and fair trial. Holding that only matters of law fell for determination under section 361 of the Criminal Procedure Code, the Court found no merit in any ground: no law required the accused to be put on his defence on both counts; the magistrate's discretion under section 200(3) CPC had been exercised in the appellant's favour but he failed to pursue it and did not raise the issue below; proof of age need not be with mathematical precision and neither a birth certificate nor medical age assessment is mandatory; and the alibi was displaced by evidence placing the appellant at the scene. The appeal was dismissed and the conviction and sentence upheld.

Key legal issues

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01

Whether acquittal on the main charge without placing the accused on his defence on the alternative charge was fatal

Holding

Not fatal. The magistrate was within her powers under section 210 CPC to acquit on the charge for which no case was made out, and no law requires an alternative charge to be defended alongside the main charge; no prejudice was occasioned.

Reasoning

The Court held that section 210 CPC permits acquittal where no case is made out on a charge. Indecent act with a child is a lesser offence than defilement requiring no proof of penetration. The Judge's observation about best practice was descriptive of common practice, not a mandatory rule. Since no prejudice resulted from the procedure adopted, the conviction on the alternative charge could not be impugned.

p. 3
02

Whether the refusal to start the trial de novo after a change of magistrate infringed the appellant's rights

Holding

The discretion under section 200(3) CPC lay with the succeeding magistrate, who exercised it in the appellant's favour by ordering recall of witnesses; the appellant's failure to follow up and to raise the issue below precluded interference.

Reasoning

The Court applied Ndegwa v Republic, holding that section 200 CPC should be used sparingly and the discretion belongs to the succeeding magistrate. The magistrate ordered PW2 and PW3 recalled, but the appellant went quiet. Further, the issue was not raised in the first appellate court, so the second appellate court would not entertain it, and lighting/identification issues were questions of fact outside its remit.

p. 4
03

Whether the age of the complainant and the prosecution case were proved to the required standard

Holding

Exact age need not be proved with mathematical precision; neither a birth certificate nor a medical age assessment is mandatory. The medical evidence was accepted on the alternative charge and the alibi defence was displaced.

Reasoning

Relying on Kaingu Elias Kasomo v Republic, the Court reiterated its liberal approach to proof of age under the Sexual Offences Act. The medical evidence and P3 form were only discounted for the defilement charge, not the alternative charge. The prosecution evidence placed the appellant at the locus in quo, displacing his alibi, and his defence was duly considered by the Judge.

p. 4
04

Whether the appellant's right to a fair trial was infringed

Holding

The claim failed; sections 146 and 150 CPC relied on by the appellant were quoted out of context and inapplicable.

Reasoning

The Court observed that the appellant's grounds invoking sections 146 and 150 CPC on fair hearing and de novo trial misapplied those provisions to the circumstances. The record showed the magistrate had accommodated the appellant's requests, and the appellant did not pursue the ordered recall of witnesses, so no fair-trial infringement was established.

p. 2

Legal principles established

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  • On a second appeal, only matters of law fall for consideration and the Court will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles
  • Failure to prove the exact age of a victim of a sexual offence does not entitle an accused to an acquittal; neither a medical age assessment nor a birth certificate is mandatory proof of age
  • An accused need not be placed on his defence on both the main and alternative counts where the evidence at the close of the prosecution case supports only the lesser or alternative charge
  • Issues of fact not raised at the trial court or first appellate court will not be entertained on second appeal

Court orders

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  1. 1.Appeal dismissed
  2. 2.Conviction and sentence of the trial Court upheld

Authorities

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Legislation

  • Sexual Offences Actsection 8(1)(3)
  • Sexual Offences Actsection 11(1)
  • Criminal Procedure Codesection 146(1)
  • Criminal Procedure Codesection 150
  • Criminal Procedure Codesection 200(3)
  • Criminal Procedure Codesection 210
  • Criminal Procedure Codesection 361
  • Evidence Actsection 109
  • Constitution of KenyaArticle 50(2)(5)

Cases cited (11)

  • Okethi Okale v. Republic
    (1965) EALR 555
  • Bukenya v. Uganda
    (1972) EA 549
  • Ann Njogu v. Republic
    Nairobi C.A No. 551 of 2007
  • Chemangong -vs- R
    [1984] KLR 611
  • Kaingo -vs- R
    (1982) KLR 213
  • Reuben Karari C/O Karanja -vs- R
    (1956) 17 EACA 146
  • Ndegwa -vs- Republic
    [1985] KLR 534
  • Abdalla Hassan Hiyesa v Republic
    [2015] eKLR
  • Joseph Kamau Gichuki v Republic
    [2013] eKLR
  • S J M v Republic
    [2016] eKLR
  • Kaingu Elias Kasomo vs Republic
    Malindi Criminal Appeal No. 504 of 2010
On appeal from
High Court of Kenya at Malindi
H.C.CR.APP. No. 15 of 2014
Jurisdiction invoked
Second appeal under section 361 of the Criminal Procedure Code

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, "Patrick Mutwiri v Republic [2017] KECA 26 (KLR)", Case Analysis (2017). Criminal Appeal No. 50 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/26/eng@2017-10-12

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