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Court of AppealAllowedCriminal Appeal No. 87 of 2017

Alex Kiprono Wanjala v Republic [2019] KECA 513 (KLR)

Court of Appeal of Kenya
28 June 2019
2,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal quashed a life sentence for defilement because the child complainant's evidence was excluded and the remaining identification evidence left reasonable doubt.

What this practically means

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Executive summary

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The Court of Appeal at Eldoret (Githinji, Okwengu and J. Mohammed, JJ.A) allowed a second appeal by Alex Kiprono Wanjala against his conviction for defilement of an 8-year-old girl contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and his sentence of life imprisonment. The first appeal had been dismissed by the High Court at Eldoret (Mativo, J.), which correctly excluded the complainant's evidence because no voire dire examination was conducted, but upheld the conviction on the remaining evidence. Before the Court of Appeal, the appellant challenged the failure to take a fresh plea to the amended charge, the magistrate's failure to specify the section of conviction, proof of age, proof of penetration and identification. The court agreed with the High Court that the amendment and omissions caused no failure of justice, and found that age and penetration were proved. However, once the complainant's evidence was excluded, the identification of the appellant rested solely on the evidence of EO, a single identifying witness at night, together with circumstantial evidence. The court found material contradictions between EO's account and the complainant's account of how the perpetrator was identified, and held that the two courts below failed to evaluate the circumstances of identification and to consider whether the circumstantial evidence met the requisite test. Reasonable doubt therefore existed, and the conviction rested on mere suspicion. The appeal was allowed, the conviction quashed, the sentence set aside and the appellant ordered set at liberty unless otherwise lawfully held.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the failure to call the appellant to plead afresh to the amended charge and the trial magistrate's failure to specify the section under which he convicted occasioned a failure of justice
  2. 2.Whether the age of the complainant was proved
  3. 3.Whether penetration was proved
  4. 4.Whether the identification of the appellant as the person who defiled the complainant was proved to the required standard, given that the complainant's evidence was excluded and the conviction rested on a single identifying witness at night and circumstantial evidence

Key legal issues

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01

Effect of failure to take a fresh plea to an amended charge

Holding

The amendment (from section 8(3) to section 8(2) and age 7 to 8 years) did not alter the facts or evidence or occasion a failure of justice; the omission was not fatal since the provisions creating the offence were disclosed in the charge sheet.

Reasoning

The court agreed with the High Court's finding that the amendment did not alter the evidence or facts and the age bracket remained within section 8(2). The judgment disclosed the appellant was convicted of the main count charging defilement contrary to section 8(1) as read with section 8(2), and the magistrate referred to section 8(2) when sentencing, so the offence created by law was disclosed and no prejudice arose.

p. 2
02

Proof of the complainant's age

Holding

Age was proved by acceptable evidence: the mother's testimony, the immunization card bearing the complainant's correct name, the P3 form and the fact she was a class one pupil; she was 8 years old, below 11 as required by section 8(2).

Reasoning

EO stated the complainant was born on 16th July 2001 and produced the immunization card bearing that date and the complainant's correct name SA. The P3 form showed the age as 7 years and she was a class one pupil. The High Court's computation that she was 8 at the time of the offence was accepted as correct.

p. 2
03

Proof of penetration

Holding

Penetration as defined in section 2 of the Sexual Offences Act, including partial insertion, was proved by the medical evidence of Dr. Joseph Imbesi despite absence of spermatozoa and bleeding.

Reasoning

The doctor found bruises, tenderness and friction on the complainant's vagina and formed the opinion of actual penetration. Grace Atieno Thirikwa noticed swelling and inflammation. The court noted that section 2 defines penetration as including partial insertion of a genital organ into another's genital organ, and was satisfied the legal definition was met.

p. 2
04

Identification of the appellant as the perpetrator

Holding

With the complainant's evidence excluded, identification rested solely on the evidence of EO, a single identifying witness at night, plus circumstantial evidence, which was contradictory and un evaluated by the courts below; there was reasonable doubt and the conviction was based merely on suspicion.

Reasoning

EO's account of how she identified the appellant contradicted the complainant's account (naming 'Boyi' and reporting to her mother versus EO seeing the complainant leaving the appellant's house). The courts below failed to re-evaluate the circumstances of identification and to test whether the circumstantial evidence met the requisite test. Night-time single-witness identification with such contradictions left reasonable doubt.

p. 3

Legal principles established

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  • Failure to conduct a voire dire examination of a child witness leads to exclusion of that evidence and is fatal to the prosecution case where there is no other sufficient evidence to sustain a conviction.
  • Where a conviction rests solely on the evidence of a single identifying witness and circumstantial evidence, the first appellate court must re-evaluate that evidence, including the circumstances of identification and whether the circumstantial evidence meets the requisite test.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction is quashed
  3. 3.The sentence is set aside
  4. 4.The appellant shall be set at liberty unless otherwise lawfully held

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Eldoret
H.C. Cr. A. No. 63 of 2014
Jurisdiction invoked
Second appeal to the Court of Appeal against the judgment of the High Court in a criminal appeal, on matters of law only

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

failure to hold a voire dire examination of a child leads to the exclusion of such evidence and is fatal to the prosecution case where there is no other sufficient evidence to sustain a conviction
p. 2Voire dire examination of child witnesses
the two courts below did not evaluate the evidence of E regarding the circumstances of identification of the appellant. In addition, the two courts below did not consider whether or not circumstantial evidence met the requisite test
p. 3Duty of first appellate court on single-witness identification and circumstantial evidence
In the circumstances, we are not satisfied that the conviction of the appellant was based on positive and credible evidence of identification. It seems to us that the appellant was convicted merely on suspicion.
p. 3Conviction on suspicion
For the foregoing reasons, the appeal is allowed, the conviction quashed and the sentence set aside. The appellant shall be set at liberty unless otherwise lawfully held.
p. 3Final orders

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, "Alex Kiprono Wanjala v Republic [2019] KECA 513 (KLR)", Case Analysis (2019). Criminal Appeal No. 87 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/513/eng@2019-06-28

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