Joshua Ouma Othao v Republic [2019] KECA 116 (KLR)

The court held that because the sentence under the Sexual Offences Act depends on the victim's age, the establishment of age is an issue of law within its second-appeal mandate. On the record, the complainant testified she was 11 and the Clinical Officer confirmed this; though the point was not raised below, the court was satisfied from the evidence that the complainant was 11 when defiled in early 2012.

By the proviso to Section 124 of the Evidence Act, a complainant's evidence in a sexual offence need not be corroborated where the court, for recorded reasons, is satisfied the complainant is truthful. SA gave cogent, unshaken evidence, immediately reported to her auntie who observed bloodstained clothing, and the Clinical Officer confirmed penetration. The conviction was therefore proper and the High Court rightly dismissed the first appeal.

The court aligned itself with the Supreme Court's decision in Muruatetu declaring mandatory sentences unconstitutional and with this Court's decision in Kilwake, holding that Section 8 of the Sexual Offences Act, like the mandatory death penalty for murder, deprives courts of discretion to consider individual circumstances and mitigation. Such provisions must be read as indicative, not mandatory, allowing the court to impose an appropriate sentence.

Although the offence was serious, the court held that life imprisonment was no longer appropriate given the shift in jurisprudence on mandatory sentences. It also noted the appellant had been in custody continuously since January 2012, having failed to raise bond, and applied Section 333(2) of the Criminal Procedure Code in fixing the commencement date of the substituted sentence.