Daniel Arasa v Republic [2018] KECA 698 (KLR)

Court of Appeal

22 March 2018

EGE. M. Githinji HOHannah Okwengu JMJ. Mohammed

1,581 words in judgment

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The bottom line

Kenya's Court of Appeal dismissed a 20-year defilement sentence appeal, confirming that a child's consent can never be a legal defence.

What this practically means

Executive summary

The appellant, Daniel Arasa, was convicted by the Senior Principal Magistrate's Court at Kitale of defilement of a 14-year-old child contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to 20 years imprisonment. His first appeal to the High Court at Kitale (J. R. Karanja, J.) against conviction and sentence was dismissed, and he appealed to the Court of Appeal at Eldoret as a second appellate court. The prosecution case was that on 1st April 2011 the appellant, a local shopkeeper known to the complainant, took her to his room behind the shop, where he defiled her several times over two days. The complainant reported to her grandmother, the area Chief and the police, and was examined by a clinical officer who concluded she had been defiled. Before the Court of Appeal, the appellant raised grounds on sufficiency of evidence, defect in the charge, procedural irregularities and alleged consent. The Court held that grounds on the charge and procedure had not been raised in the High Court and, in any event, lacked merit: the variance in date was immaterial under section 214 of the Criminal Procedure Code; the charge was not duplex and need not allege unlawfulness; consent by a child is legally irrelevant; and there was sufficient compliance with section 200 on the change of magistrate without prejudice to the appellant. On the evidence, both courts below had made concurrent findings that the complainant was credible and the offence proved, findings which a second appellate court will not disturb absent absence of evidence. The appeal was dismissed in its entirety.

Key legal issues

Defect in the charge and variance of date

Holding

The charge was neither duplex nor defective; the variance in date was immaterial under section 214 of the Criminal Procedure Code.

Reasoning

The trial magistrate had already found the variance between the charge sheet date and the evidence immaterial, as section 214 permits. The prosecution's indicated substitution of the charge with several counts was never effected, so the appellant was convicted on the original single count alleging the offence on 1st April 2011, matching the complainant's testimony. The charge need not allege unlawfulness, as defilement is inherently unlawful.

p. 2

Consent as a defence to defilement

Holding

Consent is irrelevant where the complainant is a child; the law presumes a child cannot give intelligent consent.

Reasoning

The appellant's argument that the sexual intercourse was consensual fails as a matter of law. Defilement under section 8 of the Sexual Offences Act requires only an act causing penetration to a child. The statutory protection is absolute: because the law assumes a child cannot give intelligent consent, consent can never negative the offence.

p. 2

Procedural compliance on change of magistrate

Holding

There was sufficient compliance with section 200 of the Criminal Procedure Code and no prejudice was shown.

Reasoning

After the complainant testified, a second magistrate took over. The provisions of section 200 were explained to the appellant, who initially elected that the case start de novo, but on the next hearing date, with counsel present, elected to continue from where the trial had stopped. The record shows no objection by the appellant, and he did not demonstrate any prejudice suffered.

p. 2

Sufficiency of evidence and scope of second appeal

Holding

The conviction was supported by overwhelming and credible evidence; a second appellate court will not disturb concurrent findings of fact.

Reasoning

The complainant knew the appellant since 2009, named him, and described the events in detail. Both courts below found her credible and found the prosecution case proved. The High Court properly performed its first appellate duty by exhaustively re-considering and re-evaluating the evidence. On settled principles, the Court of Appeal would not interfere with concurrent findings of fact based on credibility absent absence of evidence.

p. 3

Legal principles established

A second appellate court will not normally interfere with findings of fact based on the credibility of witnesses or with concurrent findings of fact of the two courts below, unless the findings are based on no evidence or no other reasonable tribunal could have made them.
Consent of a child is immaterial in a charge of defilement because the law assumes a child cannot give an intelligent consent; the charge need only allege an act causing penetration to a child.
A variance between the date stated in the charge sheet and the evidence is not material where section 214 of the Criminal Procedure Code so provides.

Court orders

1.The appeal is dismissed in its entirety

Authorities

Legislation

Sexual Offences Actsection 8(1) as read with section 8(3)
Criminal Procedure Codesection 214
Criminal Procedure Codesection 200

On appeal from: High Court of Kenya at Kitale; HCCRA No. 105 of 2013
Jurisdiction invoked: First appellate jurisdiction under the Court of Appeal Act over appeals from the High Court in criminal matters (second appeal against conviction and sentence)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Daniel Arasa v Republic [2018] KECA 698 (KLR)", Case Analysis (2018). Criminal Appeal No. 80 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/698/eng@2018-03-22

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