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Court of AppealDismissedCriminal Appeal No. 100 of 2015· [2018] KECA 459 (KLR)

Lokudan Loteng v Republic [2018] KECA 459 (KLR)

Court of Appeal of Kenya
12 July 2018
1,585 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a defilement appeal, holding fair-trial complaints cannot be raised for the first time on a second appeal.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A) dismissed a second appeal against conviction for defilement and a life sentence. The appellant had been convicted by the trial magistrate of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, and on an alternative count of committing an indecent act, with the latter sentence left in abeyance. The High Court (J. R. Karanja, J) dismissed his first appeal. Three grounds were advanced: failure to inform the appellant of his right to representation under Article 50(2)(g) and (h); non-proof of the child's age by documentary evidence; and failure to re-evaluate the evidence, particularly a P3 form lacking a police station stamp. The court declined to entertain the constitutional ground as new on second appeal, holding it was too late since it was never raised in the High Court. The P3 ground failed because the form bore the Medical Officer of Health's stamp and was produced by the examining clinical officer. On age, the court applied the Children Act definition that where actual age is not known, apparent age suffices; the only doubt was whether the child was 10 or 11, which does not affect the section 8(2) life sentence. Relying on the proviso to section 124 of the Evidence Act, the court held the uncorroborated but credible testimony of the child victim sufficed for conviction. The judgment affirmed the High Court's decision in its entirety.

Key legal issues

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01

Raising a new constitutional ground on second appeal

Holding

The court declined to entertain the Article 50(2)(g) and (h) ground as it was new and not raised in the first appellate court

Reasoning

The appellant had not raised the fair-trial ground in the petition of appeal or written submissions in the High Court, so it did not form the basis of the High Court's determination. The court held it was too late to raise the constitutional issue at second appeal and declined to fault the High Court's judgment on a basis never placed before it.

p. 2
02

Reliability of the P3 form without a police station stamp

Holding

The P3 form was properly admitted and relied upon despite the absence of a police station rubber stamp

Reasoning

The P3 form was signed and bore the rubber stamp of the Medical Officer of Health, Kapenguria Hospital. The clinical officer who examined the child gave evidence of his findings and produced the form as an exhibit which he himself filed. The ground, which was also not raised in the High Court, therefore had no merit.

p. 2
03

Proof of the victim's age for sentencing under section 8 of the Sexual Offences Act

Holding

Where actual age is not known, apparent (estimated) age suffices; the only doubt was whether the child was 10 or 11, which does not affect the life sentence

Reasoning

The charge sheet indicated the child was 10 years old; she testified she was 11; her mother confirmed 10 in the previous year; and the P3 form recorded an estimated age of 10 years, which is the apparent age under the Children Act definition. The court held there was no reasonable doubt that the child was aged 11 years or below, within the section 8(2) bracket.

p. 3
04

Conviction on the uncorroborated evidence of a child victim

Holding

The proviso to section 124 of the Evidence Act permits conviction on the sole evidence of a sexual-offence victim if the court is satisfied of the victim's truthfulness

Reasoning

Although the child's evidence identifying the appellant was uncorroborated, the proviso to section 124 authorises conviction on such evidence where the court believes the victim is telling the truth. The trial court, after a voire dire examination, and the High Court made concurrent findings that the child's evidence was credible, supporting the conviction.

p. 2
05

Duplicate conviction on main and alternative counts

Holding

The court endorsed the High Court's finding that conviction on both the main and alternative counts was erroneous, without disturbing the outcome

Reasoning

The appellant was convicted on both the main count of defilement and the alternative count of committing an indecent act, with the second sentence left in abeyance. The court adopted the High Court's observation that it was erroneous to convict on both the main and alternative counts, but this did not affect the dismissal of the appeal.

p. 1

Legal principles established

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  • A ground of appeal, including a constitutional fair-trial ground, cannot be raised for the first time on second appeal where it was not raised in the first appellate court and did not form the basis of that court's determination
  • A court may convict on the uncorroborated evidence of a victim of a sexual offence if satisfied the victim is telling the truth, under the proviso to section 124 of the Evidence Act
  • Where actual age is not known, apparent age suffices for sentencing under the Sexual Offences Act, and a doubt that does not alter the applicable sentence bracket is not a reasonable doubt affecting conviction or sentence

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentence of life imprisonment imposed by the trial court and affirmed by the High Court stand

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(2), 50(2)(g), 50(2)(h)
  • Sexual Offences ActSection 8(1), 8(2), 8(3), 11(1)
  • Evidence ActSection 124 (proviso)
  • Children ActDefinition of "age"
On appeal from
High Court of Kenya at Kitale
HCCCRA. No. 98 of 2012
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appeal against the judgment of the High Court on first appeal)

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, "Lokudan Loteng v Republic [2018] KECA 459 (KLR)", Case Analysis (2018). Criminal Appeal No. 100 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/459/eng@2018-07-12

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