Evans Opiyo Esau v Republic [2019] KECA 328 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a defilement conviction but replaced a mandatory life sentence with 30 years, applying the Muruatetu decision.
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 age of the complainant was proved beyond reasonable doubt in the absence of a birth certificate, baptismal card or age assessment report
- 2.Whether the appellant was positively identified as the perpetrator of the defilement
- 3.Whether the mandatory life sentence under Section 8(2) of the Sexual Offences Act was lawful, given the decision in Francis Karioko Muruatetu & another v Republic
Key legal issues
#Proof of the complainant's age on second appeal
The Court was satisfied that the complainant's age was proved through the clinical officer's testimony that she was aged 10 years at examination and the post rape care form indicating she was born in September 1999, even absent a birth certificate or age assessment report.
The Court adopted the persuasive reasoning in Paul Otieno Okello v Republic that age is ideally proved by documents such as a birth certificate, birth notification, medical, religious or school documents, but that where such documents are unavailable, the court may rely on observation of the victim or oral admissible evidence. Applying that standard, the medical evidence and the post rape care form sufficiently established that the complainant was a child below twelve years for sentencing under the Sexual Offences Act.
Identification of the appellant as the perpetrator
The Court affirmed the concurrent findings of the two courts below that the appellant was identified by recognition in broad daylight, with PW3 giving an eyewitness account of the act, and the credibility of the child witnesses was upheld.
The offence occurred at about 1.00 pm in broad daylight; the complainant knew the appellant by recognition and PW3 saw the appellant in the act. On a second appeal, the Court pays homage to concurrent findings of fact unless based on no evidence or a perversion of evidence. The trial court had the advantage of observing the demeanour of the child witnesses, and the Court had no hesitation in affirming their credibility.
Legality of the mandatory life sentence
Guided by Muruatetu and the Court of Appeal decisions in Christopher Ochieng and Jared Koita Injiri, the Court held the mandatory life sentence could not stand and set it aside, substituting thirty years' imprisonment after weighing the aggravating factors in the probation report.
The Supreme Court in Muruatetu held that a mandatory sentence fails to conform to the fair trial tenets under Article 25 of the Constitution. This Court, in Christopher Ochieng and Jared Koita Injiri, applied that reasoning to the minimum mandatory sentences under the Sexual Offences Act. Persuaded by those decisions, the Court found the life sentence imposed by the trial magistrate and upheld by the High Court could not stand, and, considering mitigation and aggravating factors including the misleading probation report, substituted a thirty-year term.
Legal principles established
#- A second appeal to the Court of Appeal is confined to matters of law and the Court will not interfere with concurrent findings of fact of the two courts below unless based on no evidence, a perversion of the evidence, or where no reasonable tribunal properly directing itself would arrive at such findings.
- Age of a victim in sexual offences is ideally proved by documentary evidence, but where none is available, a court may rely on its observation of the victim or the oral admissible evidence on record, including medical testimony.
- Following Muruatetu, a mandatory sentence of life imprisonment under Section 8(2) of the Sexual Offences Act cannot stand, as a mandatory sentence fails to conform to the fair trial tenets under Article 25 of the Constitution.
Court orders
#- 1.Conviction of the appellant for the offence of defilement as charged affirmed and upheld
- 2.Life sentence meted upon the appellant set aside and substituted with imprisonment for a term of thirty (30) years with effect from the date of sentence by the trial court on 9th February 2010
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kakamega
- H.C. Cr. Appeal No. 48 of 2010
- Jurisdiction invoked
- Second appeal to the Court of Appeal under Section 361 of the Criminal Procedure Code, confined to matters of law
Relief refused
#Setting aside the conviction for defilement
The two courts below made concurrent findings of fact, supported by evidence, that the appellant committed the offence; on a second appeal the Court will not disturb such findings
Costs
No costs order was made 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.
A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
As this court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence
Guided by the Supreme Court decision in Francis Karioko Muruatetu & another – v- Republic (supra), we hereby set aside the life sentence meted upon the appellant and substitute the same with imprisonment for a term of thirty (30) years with effect from the date of sentence by the trial court on 9 th February 2010.
The upshot is that we affirm and uphold the conviction of the appellant for the offence of defilement as charged. We however set aside the life sentence meted upon the appellant and substitute the same with imprisonment for a term of thirty years with effect from 9 th February 2010.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Opiyo Esau v Republic [2019] KECA 328 (KLR)", Case Analysis (2019). Criminal Appeal No. 136 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/328/eng@2019-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.