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Court of AppealDismissedCriminal Appeal No. 15 of 2015· [2018] KECA 664 (KLR)

Francis Kiptanui Sitienei v Republic [2018] KECA 664 (KLR)

Court of Appeal of Kenya
22 March 2018
EGE. M. GithinjiHOHannah OkwenguJMJ. Mohammed
2,433 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld a defilement conviction, confirming age can be proved without documents and second appeals only cover points of law.

What this practically means

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Executive summary

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This was a second appeal by Francis Kiptanui Sitienei against his conviction and 15-year sentence for defilement of a 16-year-old girl, contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The Principal Magistrate's Court at Kapsabet convicted him, and the High Court at Eldoret (Ochieng, J.) dismissed his first appeal on 14th November 2013. Before the Court of Appeal, the unrepresented appellant raised three grounds: that the complainant's age was not proved by documentary evidence; that the trial court failed to conduct a voire dire examination of the complainant; and that he was not positively identified since no identification parade was held. The State, through Prosecuting Counsel, submitted that all ingredients of defilement were proved, that this was identification by recognition, and that voire dire was unnecessary for a 16-year-old. The Court confined itself to matters of law under Section 361 of the Criminal Procedure Code, as explained in Hamisi Mbela & Another v Republic. It held that age may be proved by the complainant's testimony and clinical evidence without documentary proof; that a child of tender years for voire dire purposes is one under 10 years under Section 2 of the Children's Act, so the 16-year-old complainant's sworn evidence required no voire dire; and that no identification parade was necessary in a case of recognition committed in broad daylight. Finding concurrent findings of fact by the two lower courts fully supported by evidence, the Court declined to interfere and dismissed the appeal in its entirety.

Key legal issues

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01

Proof of the complainant's age without documentary evidence

Holding

Age was sufficiently proved by the complainant's testimony that she was 16 years old and the clinical officer's assessment on the P3 form; documentary proof is not indispensable.

Reasoning

The Court adopted its earlier decision in Stephen Nguli Mulili distinguishing proof of age for establishing the offence from proof of age for sentencing. The complainant testified she was 16 years old and the clinical officer estimated 'approximately 16 years old' on the P3 form. The Court held the learned Judge properly considered the evidence and arrived at the correct determination on age, so the first ground of appeal failed.

p. 2
02

Effect of the absence of voire dire examination

Holding

No voire dire was required because the complainant, aged 16, was not a child of tender years, which under Section 2 of the Children's Act means a child under 10 years.

Reasoning

Relying on Section 19(1) of the Oaths and Statutory Declarations Act, Samuel Warui Karimi, Mohammed v Republic and Haro Guffil Jillo, the Court held that voire dire serves to test competency and understanding of the oath for children of tender years. A 17-year-old was held in Haro not to be of tender years; equally a 16-year-old who gave sworn evidence did not require voire dire. The ground accordingly failed, though the Court noted the High Court had not considered it.

p. 3
03

Identification of the appellant without an identification parade

Holding

This was identification by recognition in broad daylight; no identification parade was required because the appellant was not a stranger to the complainant.

Reasoning

The complainant went to the appellant's home to buy tomatoes and was assaulted at about midday; her brother saw her coming out of the appellant's house crying and she immediately reported to her mother. The Court agreed with the High Court that the circumstances of recognition were favourable and free from any possibility of error, so concurrent findings on identification could not be disturbed.

p. 3
04

Scope of second appellate jurisdiction

Holding

The Court could not interfere with the concurrent findings of fact of the trial court and the first appellate court.

Reasoning

Under Section 361 of the Criminal Procedure Code, and as restated in Hamisi Mbela & Another v Republic, a second appeal lies only on matters of law; an appellate court must accept findings of fact of the lower courts and resist treating findings of fact as holdings of law. Since both courts below made concurrent findings that the prosecution proved defilement beyond reasonable doubt, there were no reasons for interference.

p. 4

Legal principles established

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  • On a second appeal the Court is confined to matters of law and will not interfere with concurrent findings of fact unless it is apparent that no reasonable tribunal could have reached that conclusion.
  • Proof of age for establishing defilement must be distinguished from proof of age for sentencing purposes; age may be proved through evidence other than documentary proof.
  • A child of tender years for voire dire purposes is a child under 10 years; a 16-year-old complainant who gives sworn evidence need not be subjected to voire dire examination.
  • An identification parade is unnecessary where the perpetrator is known to the victim and the case is one of recognition under favourable conditions.

Court orders

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  1. 1.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006Section 8(1) as read with Section 8(4)
  • Criminal Procedure CodeSection 361
  • Oaths and Statutory Declarations Act (Cap 15)Section 19(1)
  • Evidence ActSection 125(2)
  • Children's Act 2006Section 2

Cases cited (9)

  • Hamisi Mbela & Another -v- Republic
    [2012] eKLR
  • M'Riungu v Republic
    [1983] KLR 445
  • Martin -v- Glyneed Distributors Ltd. t/a MBS Fastenings
  • Stephen Nguli Mulili v Republic
    [2014] eKLR
  • Kaingu Elias Kasomo v R
    Malindi Cr. No. 504 of 2014
  • Tumaini Maasai Mwanya v R
    Msa Cr.A. No. 364 of 2010
  • Samuel Warui Karimi v Republic
    [2016] eKLR
  • Mohammed v Republic
    [2005] 2 KLR 138
  • Haro Guffil Jillo -V- Republic
    [2014] EKLR
On appeal from
High Court of Kenya at Eldoret
H.C.CR.A. No. 9 of 2011
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal confined 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, "Francis Kiptanui Sitienei v Republic [2018] KECA 664 (KLR)", Case Analysis (2018). Criminal Appeal No. 15 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/664/eng@2018-03-22

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