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Court of AppealDismissedCriminal Appeal No. 26 of 2016· [2017] KECA 243 (KLR)

Safari Charo Koyo v Republic [2017] KECA 243 (KLR)

Court of Appeal of Kenya
5 October 2017
2,402 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a 20-year defilement sentence, ruling that partial penetration and proof of a victim's apparent age are enough for conviction.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Visram, Karanja and Koome, JJ.A) dismissed a second appeal by Safari Charo Koyo against his conviction for defilement contrary to section 8(3) of the Sexual Offences Act and sentence of 20 years imprisonment, arising from the defilement of a 13-year-old schoolgirl in October 2006. The trial magistrate had convicted him and the High Court (Meoli, J.) dismissed his first appeal in November 2013. Before the Court of Appeal, the appellant challenged the sufficiency of the recognition evidence, proof of penetration and of the complainant's age, the failure to call a witness named Katana, and the rejection of his alibi. Notably, state counsel Mr Monda conceded the appeal on the ground that age was unproved and sought substitution of an indecent assault conviction, but the court held it still had to exercise its own second appellate jurisdiction and declined the invitation. Applying settled principles that concurrent findings of fact are not disturbed unless based on no evidence, misapprehension or wrong principles, the court held that the medical finding of a 'rugged' hymen amounted to proof of partial penetration, which suffices for defilement; that the complainant's recognition evidence was reliable even though she did not know the appellant's name; that no adverse inference arose from Katana's absence; and that where actual age is unknown, proof of apparent age suffices, the complainant's apparent age being 13 years. The alibi was dislodged. The appeal was dismissed in its entirety.

Key legal issues

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01

Proof of penetration

Holding

The medical finding of a 'rugged' hymen sufficed as evidence of partial penetration

Reasoning

The court read section 2 of the Sexual Offences Act, defining penetration as partial or complete insertion. The P3 form described the complainant's hymen as rugged, which suggested interference. The court held this sufficed as partial penetration, an essential ingredient of defilement, even though the doctor who produced the P3 form could not say the hymen was broken.

p. 3
02

Evidence of recognition and failure to call Katana

Holding

Recognition evidence was reliable; failure to call Katana caused no prejudice and no adverse inference arose

Reasoning

The complainant gave a detailed account, described the appellant's clothing, and reported him to her mother and the sub-chief. Not knowing his name did not undermine familiarity. Proof depends on the weight and cogency of evidence, not the number of witnesses; an adverse inference arises only where evidence tendered is barely adequate.

p. 3
03

Proof of the complainant's age

Holding

Although actual age was not established, proof of apparent age of 13 years sufficed to establish the victim was a child

Reasoning

Conflicting testimony placed the complainant between 13 and 16 years at various times, and the P3 form estimated 13. The court, following Evans Wamalwa Simiyu, held that where actual age is unknown, apparent age suffices, and the concurrent finding that she was 13 at the time of the offence established she was below 18.

p. 4
04

Defence of alibi

Holding

The prosecution evidence dislodged the alibi and placed the appellant at the scene

Reasoning

The appellant claimed to be at a building site, supported by DW2. The court applied Victor Mwendwa Mulinge, noting the burden of proving the falsity of an alibi lies on the prosecution and that a court may take into account the late timing of the alibi when weighing the evidence against the standard of proof beyond reasonable doubt.

p. 4

Legal principles established

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  • A second appellate court will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, misapprehension of the evidence, or wrong principles
  • Partial penetration suffices to establish the offence of defilement under the Sexual Offences Act
  • A trial court may convict on the sole evidence of the victim of a sexual offence under the proviso to section 124 of the Evidence Act if it believes the victim and records its reasons
  • An adverse inference from failure to call a witness arises only where the evidence called is barely adequate or marginal
  • Where the actual age of a minor is not known, proof of apparent age is sufficient under the Sexual Offences Act

Court orders

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  1. 1.Appeal against conviction and sentence dismissed
  2. 2.Conviction for defilement under section 8(3) of the Sexual Offences Act and sentence of 20 years imprisonment upheld
On appeal from
High Court of Kenya at Malindi
H. C. Cr. A No. 66 of 2010
Jurisdiction invoked
Second appellate jurisdiction over a criminal appeal from the High Court (appeal on matters of law only, as second appellate court)

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, "Safari Charo Koyo v Republic [2017] KECA 243 (KLR)", Case Analysis (2017). Criminal Appeal No. 26 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/243/eng@2017-10-05

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