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Court of AppealDismissedCriminal Appeal No. 22 of 2018· [2019] KECA 357 (KLR)

Mbogo Raphael Chengo v Republic [2019] KECA 357 (KLR)

Court of Appeal of Kenya
26 September 2019
HOHannah OkwenguSKS. Gatembu KairuSKS. ole Kantai
3,260 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a 20-year defilement sentence, ruling that DNA evidence is not required to convict for defilement.

What this practically means

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Executive summary

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This was a second appeal by Mbogo Raphael Chengo against his conviction for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and a sentence of twenty years' imprisonment, upheld by the High Court at Malindi (W. Korir, J.) on 5th December 2017. The complainant, PS, was living with her stepmother, who had employed the appellant as a herds-boy, when he lured her into sexual intercourse with promises of a mobile phone; the acts were repeated on about five occasions and she became pregnant. Before the Court of Appeal (Okwengu, Gatembu Kairu and ole Kantai, JJ.A), the appellant, appearing in person, contended that the offence was not proved beyond reasonable doubt because no DNA samples were taken from him as contemplated by section 36(1) of the Sexual Offences Act, and that the age of the complainant as pleaded in the charge did not match the evidence. The Court, sitting as a single judgment, restated that a second appeal is confined to matters of law under section 361 of the Criminal Procedure Code and that concurrent findings of fact command deference absent perversity or absence of evidence. Applying authority, it held that the essential ingredient of defilement is penetration, not impregnation; that DNA testing is permissive, not mandatory; and that under the proviso to section 124 of the Evidence Act a court may convict on the victim's evidence alone where satisfied of the truth, with reasons recorded. The discrepancy between the pleaded age of 15 years and the proved age of 13 years was held curable under section 382 of the Criminal Procedure Code, since no prejudice was suffered and the age fell within the sentencing bracket. The appeal was dismissed in its entirety.

Key legal issues

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01

Scope of a second appeal under section 361 of the Criminal Procedure Code

Holding

The appeal is confined to matters of law; the Court will not disturb concurrent findings of fact unless based on no evidence, a perversion of the evidence, or where no reasonable tribunal would arrive at such findings.

Reasoning

Relying on Karingo v R and Adan Muraguri Mungara v Republic, the Court restated the classic restraint principle governing second appeals: findings of fact made concurrently by the trial court and the first appellate court bind the second appellate court absent demonstrated error of law in reaching them.

p. 3
02

Whether DNA evidence is mandatory to prove defilement

Holding

DNA evidence is not mandatory; penetration, not impregnation, is the essential ingredient, and section 36(1) of the Sexual Offences Act is permissive rather than mandatory.

Reasoning

The Court adopted Williamson Sowa Mbwanga v Republic, holding that a DNA test would only determine paternity of a resulting child, a different question from whether defilement occurred. Identification by recognition of a known assailant, coupled with consistent complainant evidence and supporting medical evidence of penetration, sufficed.

p. 4
03

Sufficiency of the victim's evidence under the proviso to section 124 of the Evidence Act

Holding

A court may convict on the evidence of the victim alone if, for reasons recorded, it is satisfied the victim is telling the truth; corroboration and medical evidence are welcome but not mandatory.

Reasoning

PS's evidence was consistent, unshaken in cross-examination, and corroborated in part by medical evidence confirming penetration and pregnancy. The appellant was known to PS, having lived and worked in the homestead for about a year, eliminating mistaken identification.

p. 3
04

Effect of the discrepancy between the age pleaded in the charge (15 years) and the proved age (13 years)

Holding

Proof that PS was 13 years old sufficed to establish the element of being a child; the actual age was only relevant to sentencing, and the discrepancy was a curable error under section 382 of the Criminal Procedure Code causing no prejudice.

Reasoning

A child is defined as any person under 18 years. Since the proved age of 13 fell within the 12-15 bracket carrying the minimum twenty-year sentence under section 8(3), the appellant suffered no prejudice; the proviso to section 382 also weighed against entertaining an objection that should have been raised earlier.

p. 4

Legal principles established

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  • A second appeal is confined to matters of law only, and the Court will not interfere with concurrent findings of fact unless based on no evidence or a perversion of the evidence
  • A trial court may convict for defilement solely on the evidence of the victim under the proviso to section 124 of the Evidence Act; medical evidence is not mandatory
  • The essential ingredient of defilement is penetration, not impregnation; a DNA test is not required and section 36(1) of the Sexual Offences Act is permissive, not mandatory
  • Discrepancies in the age stated in the particulars of a charge are curable under section 382 of the Criminal Procedure Code where no failure of justice is occasioned

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentence of the appellant for the offence of defilement as upheld by the High Court stand

Authorities

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Legislation

  • Sexual Offences ActSection 8(1)
  • Sexual Offences ActSection 8(3)
  • Sexual Offences ActSection 36(1)
  • Sexual Offences ActSection 2(1)
  • Criminal Procedure CodeSection 361
  • Criminal Procedure CodeSection 382
  • Evidence ActSection 124
  • Children's ActSection 2 (definition of a child)

Cases cited (7)

  • Karingo -vs- R
    (1982) KLR 213
  • Reuben Karari C/O Karanja -vs- R
    (1956) 17 EACA 146
  • Adan Muraguri Mungara v Republic
    [2010] eKLR
  • Williamson Sowa Mbwanga v Republic
    [2016] eKLR
  • GEORGE KIOJI V. REPUBLIC
    CR. APP. NO. 270 of 2012 (Nyeri)
  • Evans Wanjala Wanyonyi –vs- Republic
    [2019] eKLR
  • TWEHANGANE ALFRED V. UGANDA
    CR. APP. NO. 139 OF 2001
On appeal from
High Court of Kenya at Malindi
HC Cr. Appeal No. 12 of 2016
Jurisdiction invoked
Second appeal under Section 361 of the Criminal Procedure Code, confined to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbogo Raphael Chengo v Republic [2019] KECA 357 (KLR)", Case Analysis (2019). Criminal Appeal No. 22 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/357/eng@2019-09-26

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