Reuben Dena Makomba v Republic [2017] KECA 38 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a 15-year defilement sentence, ruling that a victim's age must be proved with credible evidence just like penetration itself.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction on second appeal
The Court's jurisdiction on a second appeal is confined by section 361 of the Criminal Procedure Code to issues of law; concurrent findings of fact are not interfered with.
In a second appeal, issues of fact have been tried and settled by the trial court and the first appellate court. Except in exceptional circumstances, the Court concerns itself only with the application of the law to the facts as settled by the two courts below. The Court adopted the formulation in Kaingo v R that a second appeal must be confined to points of law.
Defect in the charge sheet
The failure to cite section 8(1) of the Sexual Offences Act in the charge sheet was not fatal, as no injustice or prejudice was occasioned to the appellant who fully participated in the trial.
The prosecution conceded that only section 8(4), the sentencing provision, was cited instead of section 8(1), the definition section read with section 8(3). The court accepted that the appellant fully participated in the trial and that no injustice or prejudice was occasioned; the conviction under the main count was therefore not vitiated.
Proof of the complainant's age
The age of the complainant was sufficiently proved by the mother's evidence, the complainant's own testimony, the vaccination card and the doctor's age assessment; the discrepancy of whether she was 15 or 16 was of no significance.
The vaccination card showed a date of birth placing the complainant at about 15 years 6 months at the date of the offence, the mother's evidence placed her at about 15, and the doctor assessed about 15 years. The court held the discrepancy between 15 and 16 immaterial, and that the best evidence of age was the biological mother's evidence, then the complainant's, with forensic evidence merely augmenting.
Sentence under the wrong subsection
Both courts below erred in imposing the 15-year sentence under section 8(4) when the complainant's age on the relevant date placed the offence under section 8(3), but the sentence was confirmed because no notice of enhancement was given to the appellant.
The relevant date for assessing age was December 2010, the date of the first defilement found as a fact by the learned Judge, which placed the complainant at 15 years. The magistrate should therefore have proceeded under section 8(3), which attracts a minimum of 20 years. However, since the State gave no notice of likely enhancement, correcting the sentence then would be prejudicial.
Voir dire examination
It was not necessary to administer a voir dire inquiry on the complainant because she was 16 years of age at the time she testified.
The requirement of a voir dire inquiry under section 19 of the Oaths and Statutory Declaration Act applies to child witnesses. Having confirmed the complainant was 16 years at the time she testified in 2011, the court found the failure to conduct the inquiry did not vitiate the proceedings or weaken the prosecution case.
Identity of the violator and standard of proof
The appellant was properly identified as the violator; the complainant's graphic evidence was corroborated by her mother and PW2, proving the charge beyond reasonable doubt.
The appellant denied meeting the complainant before arrest, but she gave a graphic account of the first encounter in December 2010, knew the appellant's home and had conversed with him before the ordeal, and later spent a whole night with him at his home. Her identity evidence was corroborated by her mother and PW2, and the doctor's evidence corroborated the prosecution case.
Legal principles established
#- On a second appeal under section 361 of the Criminal Procedure Code, only issues of law may be considered; the Court will not interfere with concurrent findings of fact of the two courts below unless based on no evidence.
- The age of the victim of a sexual offence is a critical component of the charge which must be proved by credible evidence, in the same way as penetration, because the sentence depends on the victim's age.
- The best evidence of a complainant's age is the biological mother's evidence, followed by the complainant's own evidence; forensic evidence only augments these.
- Where a complainant is 16 years of age at the time she testifies, it is not necessary to administer a voir dire examination.
- A charge citing the sentencing provision (section 8(4)) but not the definition section (section 8(1)) of the Sexual Offences Act occasions no injustice where the appellant fully participated in the trial.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Conviction for defilement confirmed
- 3.Sentence of 15 years imprisonment confirmed
- On appeal from
- High Court of Kenya at Malindi
- H.C.CR.A 23 of 2012
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben Dena Makomba v Republic [2017] KECA 38 (KLR)", Case Analysis (2017). Criminal Appeal No. 91 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/38/eng@2017-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.