FO v Republic [2019] KECA 277 (KLR)

The Court emphasised the importance of ascertaining age in sexual offences for sentencing. However, the burden was on the appellant to prove minority. He raised age only at the defence stage, never cross-examined PW2 on the recorded age of 18 years, and produced no birth certificate or documentary proof. His shifting claims (16, then 17) undermined credibility, and it was implausible that a nurse would employ a minor as a shamba boy.

A ground not raised before the trial court or the first appellate court deprives the second appellate court of the benefit of the two courts' views. The appellant also did not identify the alleged irregularity. On the face of the charge sheet, it conformed to the drafting requirements of section 137 of the Criminal Procedure Code.

The victim knew the appellant, who had worked for her family for about five years, making it a case of recognition rather than mere identification of a stranger. Medical evidence showed a torn hymen and evidence suggestive of penetration, and both the victim and the appellant suffered the same sexually transmitted infection, which the Court held could not have been mere coincidence. The alibi/frame-up defence was an afterthought never put to PW1 in cross-examination.

The Court, bound by the Supreme Court's dicta in Muruatetu and its own decisions in Christopher Ochieng and Jared Koita Injiri, held that mandatory minimum sentences take away judicial discretion to impose a sentence commensurate with the circumstances of a particular case. Finding the life sentence harsh and excessive, it interfered and substituted 20 years imprisonment running from the date of the original sentence.