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Court of AppealPartially AllowedCriminal Appeal No. 47 of 2017· [2018] KECA 370 (KLR)

M A B1 v Republic [2018] KECA 370 (KLR)

Court of Appeal of Kenya
26 July 2018
WKW. KaranjaMartha Karambu KoomeM. K. KoomeDMD. K. Musinga
2,449 words in judgment
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The bottom line

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Kenya's Court of Appeal freed a man jailed 20 years for defilement because courts never checked whether he was a child when sentenced.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Karanja, Koome & Musinga, JJ.A.) allowed in part this second appeal against a High Court decision of Mutuku, J. (27th March 2014) which had reversed the appellant's acquittal by the Senior Resident Magistrate's Court at Hola on a defilement charge and sentenced him to 20 years' imprisonment. The Court confirmed its second-appeal jurisdiction is confined to matters of law under Section 361(1) of the Criminal Procedure Code. It declined to disturb the concurrent findings of fact that the appellant and the 13-15 year old complainant had engaged in consensual sexual intercourse, and held that the complainant's testimony sufficed to fix her age in the 12-15 bracket even without an age assessment report, since her age determined only the applicable sentence under Section 8(3) of the Sexual Offences Act. The Court also endorsed the High Court's view that the defective charge (citing non-existent Section 8(1)(3)) was curable under Section 382 of the Criminal Procedure Code. However, the Court found both lower courts misdirected themselves in presuming the appellant was an adult without making due inquiry into his age as required by Section 143(1) of the Children Act, despite his school uniform, his claim to be a 16-17 year old student, and the inconclusive vetting board minutes whose maker was never called. Holding that this omission might have occasioned a miscarriage of justice and doubting the legality of imposing imprisonment on a person who may have been a child, the Court allowed the appeal against sentence and discharged the appellant under Section 35(1) of the Penal Code, setting him at liberty forthwith. No costs order was made.

Key legal issues

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01

Proof of the complainant's age in a defilement case

Holding

In the absence of an age assessment report, the complainant's own testimony sufficed where both parties agreed she fell in the 12-15 age bracket; the High Court's finding that she was 14 caused no miscarriage of justice.

Reasoning

The charge sheet stated 15 years, the complainant said 14 and PW4 said 13, but all placed her within the 12-15 bracket attracting the same penalty under Section 8(3) of the Sexual Offences Act. Both prosecution and defence accepted that bracket, so the absence of documentary proof of age did not occasion a miscarriage of justice.

p. 2
02

Due inquiry into the age of a young accused person

Holding

The trial court and the first appellate court misdirected themselves in treating the appellant as an adult without any inquiry into his age despite indications he was a minor.

Reasoning

The appellant appeared in school uniform, told the investigating officer and the court he was 16-17 and a student, and made an application contending he was a minor. Section 143(1) of the Children Act obliged the court to make due inquiry, including medical evidence. The vetting board minutes were inconclusive: the name differed, the maker was not called, and no evidence was led on how the document was prepared.

p. 3
03

Legality of the sentence imposed on a possibly underage offender

Holding

The 20-year sentence was of doubtful legality as the appellant may have been under 18; the appeal against sentence was allowed and the appellant discharged under Section 35(1) of the Penal Code.

Reasoning

Under the Children Act, a child may not be imprisoned. Had the trial court found the appellant to be a minor, it would have dealt with him under Section 191(1) of the Children Act, including discharge under Section 35(1) of the Penal Code. Given the unresolved doubt about his age and the time already served since March 2014, the court discharged him.

p. 3
04

Defects in the charge sheet

Holding

The charge's reference to Section 8(1)(3) of the Sexual Offences Act was a defect curable under Section 382 of the Criminal Procedure Code, as the charge substantially complied with Section 134.

Reasoning

The trial magistrate held the charge fatally defective for citing non-existent Section 8(1)(3), but the High Court correctly held that Section 382 could cure the defect since the charge gave the appellant reasonable information of the offence as required by Section 134 of the Criminal Procedure Code. This Court agreed entirely.

p. 2

Legal principles established

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  • On a second appeal under Section 361(1) of the Criminal Procedure Code, the Court of Appeal's jurisdiction is limited to matters of law only.
  • The age of the complainant is a necessary ingredient of the offence of defilement which must be proved beyond reasonable doubt, as it determines the applicable sentence.
  • Where reasonable doubt is raised that an accused is under 18 years, the trial court must make due inquiry as to age, including medical evidence, under Section 143(1) of the Children Act; the mere production of an unproved document does not absolve the court of that obligation.
  • No child shall be ordered to imprisonment; a child offender may be dealt with under Section 191(1) of the Children Act, including discharge under Section 35(1) of the Penal Code.

Court orders

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  1. 1.The appeal is allowed as against sentence
  2. 2.The appellant is discharged under Section 35(1) of the Penal Code and set at liberty forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Criminal Procedure CodeSection 361(1)
  • Criminal Procedure CodeSection 215
  • Criminal Procedure CodeSection 134
  • Criminal Procedure CodeSection 382
  • Sexual Offences Act No. 3 of 2006Section 8(1) as read with Section 8(3)
  • Children ActSection 2
  • Children ActSection 143(1)
  • Children ActSection 190(1)
  • Children ActSection 191(1)
  • Penal CodeSection 35(1)

Cases cited (2)

  • KARANI v REPUBLIC
    [2010] 1 KLR 73
  • ALFAYO GOMBE OKELLO v REPUBLIC
    [2010] eKLR
On appeal from
High Court of Kenya at Garissa
H.C.C.R. App. No. 42 of 2013
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal limited 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, "M A B1 v Republic [2018] KECA 370 (KLR)", Case Analysis (2018). Criminal Appeal No. 47 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/370/eng@2018-07-26

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