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Court of AppealPartially Allowed

Kilwake v Republic (Criminal Appeal 129 of 2014) [2019] KECA 5 (KLR)

Court of Appeal of Kenya
28 March 2019
DMD. K. MusingaKMK. M'inotiAMA. K. Murgor
5,465 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed judges can reduce Sexual Offences Act minimum sentences, cutting this defilement sentence from 20 to 15 years.

What this practically means

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Executive summary

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The appellant was convicted of defilement of a 14-year-old girl and sentenced to the minimum 20 years imprisonment under section 8(3) of the Sexual Offences Act. His first appeal to the High Court at Bungoma was dismissed, Gikonyo, J. upholding both conviction and sentence. On second appeal, confined by section 362(1)(a) of the Criminal Procedure Code to matters of law, the Court of Appeal (Musinga, M'inoti and Murgor, JJA) considered four grounds: non-compliance with section 200(3) of the Criminal Procedure Code when a different magistrate conducted the voir dire; an allegedly defective voir dire of a 13-year-old witness; improper constitution of the High Court on first appeal; and the legality of the mandatory minimum sentences under the Sexual Offences Act. The Court dismissed the first three grounds, holding that the trial magistrate heard all the witnesses, that verbatim recording of voir dire questions is desirable but not mandatory, and that section 200(1)(a) of the Code applied mutatis mutandis permitted delivery of a judgment written and signed by a predecessor judge. On the fourth ground, following the reasoning of the Supreme Court in Muruatetu and comparative authority from South Africa, India and Uganda, the Court held that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to remove judicial discretion in sentencing; they indicate the seriousness of the offence but do not compel a fixed sentence irrespective of mitigating circumstances. The conviction was upheld but the 20-year sentence was set aside and replaced with 15 years imprisonment running from the date of the trial court's sentence. The judgment binds all subordinate courts and the High Court on sentencing discretion under the Sexual Offences Act.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's conviction is vitiated by failure of the trial court to comply with section 200(3) of the Criminal Procedure Code when the magistrate conducting the voir dire differed from the trial magistrate
  2. 2.Whether the voir dire examination of PW2 was so deficient as to vitiate the conviction
  3. 3.Whether the High Court was properly constituted when it heard the first appeal, given that Gikonyo, J. heard the appeal but Mabeya, J. signed the judgment
  4. 4.Whether the mandatory minimum sentences prescribed by the Sexual Offences Act are illegal and unconstitutional

Key legal issues

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01

Effect of change of magistrate after voir dire without recall of witnesses under section 200(3) CPC

Holding

No violation occurred because the voir dire magistrate took no evidence on the offence and the trial magistrate heard all the witnesses

Reasoning

The rationale of section 200(3) is to ensure the case is determined by a judge or magistrate who had the opportunity of hearing and seeing the witnesses so as not to lose the advantage of observing demeanour and assessing credibility. Here all witnesses testified before Ng'arng'ar, SRM who wrote and delivered the judgment. Further, MA was 14, hence not a child of tender years for whom voir dire was mandatory under section 19(1) of the Oaths and Statutory Declarations Act.

p. 5
02

Format and sufficiency of voir dire examination of a child of tender years

Holding

There is no rigid prescribed procedure; failure to record the questions verbatim does not vitiate the examination where the answers show the child understood the oath and duty to tell the truth

Reasoning

Following Mohamed v Republic and Patrick Kathurima v Republic, verbatim recording of questions and answers is recommended but not mandatory. Section 19 of the Oaths and Statutory Declarations Act provides no format; the formats approved in Sula v Uganda show flexibility. The essential requirement is establishment that the child understands the nature of the oath and the duty to tell the truth, which PW2's recorded answers demonstrated.

p. 5
03

Constitutionality of mandatory minimum sentences under section 8 of the Sexual Offences Act

Holding

The provisions must be interpreted so as not to take away the court's sentencing discretion; they are not mandatory in the strict sense

Reasoning

Drawing on the reasoning in Muruatetu on the mandatory death sentence, and comparative authority from South Africa, India and Uganda, the Court held that legislative prescription of rigid sentences without regard to individual circumstances improperly ties the hands of the judiciary. The provisions signal the seriousness of defilement and prescribe a graduated scale, but courts must retain discretion to individualise sentences in light of aggravating and mitigating factors.

p. 9

Legal principles established

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  • The mandatory minimum sentence provisions of section 8 of the Sexual Offences Act must not be applied so as to deprive sentencing courts of discretion; they are indicative of seriousness, not a straitjacket
  • A court exercising discretion in sentencing may impose any of the prescribed sentences where circumstances demand, but cannot be constrained to impose the prescribed sentence where they do not
  • On a second appeal the Court of Appeal is confined to matters of law and will not interfere with findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or were plainly wrong
  • A voir dire examination is mandatory only for children of tender years, meaning children under fourteen years absent special circumstances

Court orders

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  1. 1.The appeal is allowed as regards sentence alone
  2. 2.The sentence of 20 years imprisonment is set aside and substituted with a sentence of fifteen (15) years imprisonment with effect from the date of sentence by the trial court
  3. 3.The conviction is upheld

The bench

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One judgment of the whole court — no separate or dissenting opinions.

DM
majority
KM
majority
AM
majority
On appeal from
High Court of Kenya at Bungoma
Jurisdiction invoked
Second appeal under section 362(1)(a) of the Criminal Procedure Code, confining the Court to matters of law

Relief refused

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Quashing of the conviction on grounds of non-compliance with section 200(3) of the Criminal Procedure Code

Nyakundi, CM dealt only with the voir dire and took no evidence on the offence; all witnesses were heard by Ng'arng'ar, SRM who wrote the judgment, and MA at 14 was not a child of tender years for whom voir dire was mandatory

p. 5

Vitiation of the conviction for defective voir dire of PW2

Although recording of the questions was desirable, the answers confirmed PW2 understood the nature of the oath and the duty to tell the truth

p. 6

Declaration that the first appeal hearing was a nullity because the court was improperly constituted

The record showed Gikonyo, J. heard and wrote the judgment, and section 200(1)(a) of the Criminal Procedure Code applied mutatis mutandis allowed Mabeya, J. to deliver it; the appellant bore the burden of proving his assertion

p. 6

Costs

No order as to costs is made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly we allow this appeal as regards sentence alone. We set aside the sentence of 20 years imprisonment and substitute therefor a sentence of fifteen (15) years imprisonment with efiect from the date of sentence by the trial court. It is so ordered.
p. 9Final orders - sentence reduced to fifteen years
we hold that the provisions of section 8 of the sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing.
p. 9Sentencing discretion under the Sexual Offences Act
Those provisions are indicative of the seriousness with which the Legislature and the society take the ofience of defilement.
p. 9Purpose of the prescribed sentences
To the extent that MA was not below 14 years of age, a voir dire examination was not mandatory.
p. 5Child of tender years - voir dire threshold
It reduces the court's normal sentencing function to the level of a rubber stamp. It negates the ideal of individualization.
p. 8Critique of mandatory sentences (quoting State v Tom, State v Bruce)

Issues in the judgment

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minor

The judgment does not state the Court of Appeal case number for this appeal, so caseNumber and the first-appeal case number cannot be recorded

minor

No order as to costs appears anywhere in the judgment or its closing orders

minor

The Court substitutes a 15-year sentence while observing that a 10-year sentence would have been adequate, without explaining the divergence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kilwake v Republic (Criminal Appeal 129 of 2014) [2019] KECA 5 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/5/eng@2019-03-28

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