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Court of AppealDismissedCriminal Appeal No. 62 of 2016· [2017] KECA 47 (KLR)

Emmanuel Omara Jillo v Republic [2017] KECA 47 (KLR)

Court of Appeal of Kenya
12 October 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
3,871 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 upheld a 21-year defilement sentence, confirming a victim's age can be proven without a birth certificate.

What this practically means

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Executive summary

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This is a second appeal by Emmanuel Omara Jillo against the High Court's affirmation of his conviction and 21-year sentence for defilement of a child under 11 years contrary to section 8(2) of the Sexual Offences Act. Acting in person, the appellant raised three principal issues: proof of the complainant's age without a birth certificate or age assessment report; the reliability of the P3 form and of the testimonies of PW1 and PW2 in light of contradictions; and the adequacy of the voir dire examination of the complainant. He also contended the charge sheet was defective for omitting the time of the offence. The Court, confined by section 361 of the Criminal Procedure Code to matters of law, applied the established principle that it will not disturb concurrent findings of fact unless demonstrably based on no evidence. It held that proof of age may be satisfied by credible evidence of apparent age, including the doctor's testimony and P3 form pegging the complainant at 9 years, consistent with the definition of age in section 2 of the Children Act. It found the evidentiary contradictions immaterial, held that omission of the exact time from the charge sheet caused no apparent prejudice under section 134 of the Criminal Procedure Code, and found the voir dire properly conducted, with the conviction in any event supported by the mother's testimony, the medical evidence and the police officer. The appeal was dismissed and the conviction and sentence upheld.

Key legal issues

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01

Whether the complainant's age was proved to the required standard without a birth certificate or age assessment report

Holding

The prosecution satisfied the age element: the doctor's testimony and P3 form pegged the complainant at 9 years, and section 2 of the Children Act defines age as apparent age where actual age is unknown.

Reasoning

The Court noted that age is a critical component of a defilement charge affecting sentencing, but that Kaingu Elias Kasomo v Republic acknowledged age assessment may come in many forms. The P3 form and PW4's testimony placed the complainant at 9 years, corroborated by her nursery-school status. The appellant never raised proof of age at the first appeal, so the learned Judge could not be faulted for not determining an issue never argued before her.

p. 3
02

Whether the P3 form and the testimonies of PW1 and PW2 were unreliable due to contradictions and the absence of the P3 form's maker

Holding

The contradictions were minor and did not affect the material particulars of the case; the concurrent findings on the evidence were sound.

Reasoning

The Court characterized the alleged discrepancies as issues of fact properly considered by the first appellate court. The High Court had found that the contradiction over why PW1 went to the appellant's home did not affect the material particulars, which demonstrated opportunity to be alone with the child. The complainant had been subjected to the same acts on three prior occasions, reinforcing reliability.

p. 3
03

Whether the charge sheet was fatally defective for failing to disclose the time of the offence

Holding

Omission of the time of the offence is not fatal; the charge contained sufficient particulars under section 134 of the Criminal Procedure Code and caused no apparent prejudice.

Reasoning

Section 134 requires a statement of the specific offence with such particulars as give reasonable information of its nature. The charge specified the date, place, act constituting the offence and the victim. An accused who knows the charge he faces suffers no prejudice from absence of the exact time, so the conviction could not be rendered unsafe on that basis.

p. 3
04

Whether the voir dire examination of the complainant complied with section 19 of the Oaths and Statutory Declarations Act

Holding

The voir dire was properly conducted; the child stated she knew the accused and that a liar is punished, and the court found her intelligent enough to give sworn evidence.

Reasoning

The Court restated the Johnson Muiruri procedure for child witnesses. The record showed a voir dire examination on 2nd April 2009 in which the complainant demonstrated understanding, after which the court allowed sworn testimony. In any event, the conviction was supported by the complainant's mother, the medical examination and the police officer, satisfying the corroboration requirement.

p. 4

Legal principles established

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  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal considers only matters of law and will not interfere with concurrent findings of fact unless shown demonstrably to be based on no evidence
  • Proof of the age of a victim of a sexual offence may be established by credible evidence other than a birth certificate or age assessment report; the apparent age as medically assessed can suffice
  • The time of the commission of an offence is not a requisite particular of a charge sheet under section 134 of the Criminal Procedure Code; omission of the exact time causes no apparent prejudice
  • Where a child witness does not understand the nature of an oath, unsworn evidence may be received if the child has sufficient intelligence and understands the duty of speaking the truth, and an accused may not be convicted on such evidence unless corroborated

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction and sentence imposed by the trial court are upheld

Authorities

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Legislation

  • Sexual Offences ActSection 8(2)
  • Sexual Offences ActSection 11(1)
  • Criminal Procedure CodeSection 361
  • Criminal Procedure CodeSection 134
  • Criminal Procedure CodeSection 382
  • Criminal Procedure CodeSection 233
  • Evidence ActSections 70 and 83(1)
  • Evidence ActSection 124
  • Oaths and Statutory Declarations ActSection 19(1)
  • Children ActSection 2

Cases cited (6)

  • Karingo v Republic
    [1982] KLR 219
  • Okeno v Republic
    [1972] EA 32
  • Kaingu Elias Kasomo v. Republic
    Malindi Criminal Appeal No. 504 of 2010
  • Alfayo Gombe Okello v. Republic
    Kisumu Criminal Appeal No. 109 of 2003
  • Evans Wamalwa Simiyu v Republic
    [2016] eKLR
  • Johnson Muiruri -Vs- Republic
    1983 KLR
On appeal from
High Court of Kenya at Malindi
H.C.CR.APP. No. 154 of 2009
Jurisdiction invoked
Second appeal under Section 361 of the Criminal Procedure Code, confining the Court 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, "Emmanuel Omara Jillo v Republic [2017] KECA 47 (KLR)", Case Analysis (2017). Criminal Appeal No. 62 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/47/eng@2017-10-12

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