JTK v Republic [2019] KECA 249 (KLR)
The bottom line
#Kenya's Court of Appeal reduced an incest conviction to an indecent act with a child, cutting a twenty-year sentence to the ten-year minimum.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the two courts below erred in ignoring the defence that the complainants were coached to testify against the appellant
- 2.Whether the evidence was full of contradictions and lacked corroboration
- 3.Whether penetration was proved so as to sustain a conviction for incest
- 4.Whether failure to conduct a DNA test under Section 36 of the Sexual Offences Act vitiated the prosecution case
- 5.Whether the failure to call APC Isaac Wafula as a witness occasioned a miscarriage of justice
- 6.Whether the appellant's right to a fair trial under Article 50 of the Constitution was violated by non-compliance with Section 146(4) of the Evidence Act
- 7.Whether the sentence of twenty years' imprisonment was lawful and appropriate
Key legal issues
#Scope of second appellate jurisdiction
The Court's jurisdiction in a second appeal is confined to matters of law under Section 361 of the Criminal Procedure Code.
The Court invoked Karani vs R to explain that it cannot interfere with the decision of the superior court on facts unless the trial court and first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong on the evidence as a whole, in which case such omissions or commissions would be treated as matters of law.
Whether penetration was proved to sustain a conviction for incest
Penetration was not proved; the evidence established only an indecent act with a child under Section 11(1) of the Sexual Offences Act.
The medical report showed PW3's hymen was intact with bruises on her private parts, and the medical report on PW4 did not prove penetration. The trial court had found no evidence of full penetration but proved elements of indecency, a finding the High Court upheld. The two courts below therefore erred in convicting for incest when the evidence disclosed only the alternative offence of indecent act with a child.
Whether failure to conduct a DNA test under Section 36 of the Sexual Offences Act weakened the prosecution case
Failure to conduct a DNA test did not dent the prosecution case; Section 36 confers a discretionary power expressed by the word 'may'.
Relying on Evans Wamalwa Simiyu, AML v Republic and Kassim Ali, the Court held that the fact of rape or defilement is proved by evidence, not by DNA testing, and that Section 36 uses the word 'may', imposing no mandatory obligation on the trial court to order DNA testing in every case.
Whether failure to call APC Isaac Wafula occasioned a miscarriage of justice
No prejudice was demonstrated; there is no legal requirement on the number of witnesses to prove a fact.
Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove any fact. The appellant could have called the witness himself, and his testimony would have been limited to the undisputed fact of the arrest. The Court also cited Keter vs Republic that the prosecution is not obliged to call a superfluity of witnesses.
Legality and appropriateness of the twenty-year sentence
The sentence was interfered with and reduced to the statutory minimum of ten years because incest was not proved and the offence proved was indecent act with a child.
The learned Judge had erred in referring to the proviso in Section 20 of the Sexual Offences Act on life imprisonment since incest was not proved. Section 11(1) imposes a minimum of ten years. Guided by Muruatetu on individualized sentencing and the appellant's mitigation as a first offender, the Court substituted the twenty-year term with ten years.
Effect of inconsistencies between the clinical officer's testimony and the complainants' evidence
The contradictions were not material and did not cast doubt on or destroy the prosecution case.
Applying John Nyaga Njuki & 4 others vs R, the Court held that where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook them and proceed to convict. Recognition of the appellant and the corroborative evidence overwhelmingly outweighed any inconsistency on the record.
Legal principles established
#- In a second appeal, the Court of Appeal is confined to matters of law and cannot interfere with concurrent findings of fact unless the courts below considered matters they ought not to have, or failed to consider matters they should have, or were plainly wrong.
- The fact of rape or defilement is not proved by way of a DNA test but by way of evidence; the power to order DNA testing under Section 36 of the Sexual Offences Act is discretionary, not mandatory.
- Where the prosecution proves an indecent act with a child but not penetration, an accused wrongly convicted of incest may be convicted on the alternative charge of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
- Discrepancies in prosecution evidence that do not affect an otherwise proved case may be overlooked by a court.
Court orders
#- 1.Set aside the conviction of the appellant for incest contrary to Section 20(1) of the Sexual Offences Act
- 2.Substitute the conviction with a conviction for the alternative charges in Counts I and III for the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act
- 3.Set aside the sentence of twenty (20) years imprisonment for incest
- 4.Substitute the sentence with the minimum sentence of ten years for the offence of indecent act with a child DC and VC, effective from 21st October 2011 when the trial court passed the sentence
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- H.C Cr. A. No. 214 of 2011
- Jurisdiction invoked
- Second appeal under Section 361 of the Criminal Procedure Code, confined to matters of law
Relief refused
#Setting aside the conviction altogether
The conviction on the alternative charge of indecent act with a child was upheld; only the conviction for incest was set aside
Upholding the twenty-year sentence
The Court interfered with the sentence because the offence proved was indecent act with a child, not incest, and applied the minimum sentence of ten years
Costs
No order as to costs was made; being a criminal appeal no costs order appears in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that we set aside the conviction of the appellant for incest and substitute the same with conviction for the alternative charge for indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act.
We further set aside the sentence of twenty (20) years imprisonment for incest and substitute the same with the minimum sentence of ten years for the offence of indecent act with a child DC and VC as stated in the alternative counts with effect from 21 st October 2011 when the trial court passed the sentence.
By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law.
The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.
where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused.
The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.
recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends on the personal knowledge of the assailant in some form or the other.
Issues in the judgment
#The complainant VC's testimony records the offence date as 20th January 2009 while the charge particulars and all other evidence state 20th November 2009; the judgment marks it '(sic)' but the discrepancy is internal to the record.
The trial magistrate is quoted describing the offence against PW3 as an 'indecent act' proved, yet convicting on the charge of incest; the appellate Court noted the magistrate found the elements of indecency proved without full penetration.
The citation for Benard Ombuna vs. Republic is anomalous, combining a year citation with a separate appeal number in one reference.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JTK v Republic [2019] KECA 249 (KLR)", Case Analysis (2019). Criminal Appeal No. 75 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/249/eng@2019-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.