Nathaniel Chara Chanzera v Republic [2019] KECA 831 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a defilement victim's age can be proved without a birth certificate, using testimony, a P3 form and an age assessment report.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the case proved beyond reasonable doubt?
- 2.The issue of the complainant's age and its impact on the conviction
- 3.Whether appellant's defence was considered
Key legal issues
#Ingredients of defilement
The three ingredients of defilement - penetration, victim's age and identity of the perpetrator - were proved beyond reasonable doubt.
The two courts below made concurrent findings of fact on penetration, corroborated by the P3 form. Identity was not seriously contested since the appellant was the victim's neighbour and well known to her and her parents. The victim was found to be below 18 years, so any sexual activity with her, whether consensual or not, amounted to defilement.
Proof of the complainant's age without a birth certificate
The victim's age of 16 years was sufficiently established by her testimony, parental evidence, the P3 form and the age assessment report; absence of a birth certificate does not vitiate the conviction.
The relevant age under the Sexual Offences Act is the apparent age, not the exact age. The mother is the best person to ascertain a child's age. Here the victim said she was 16, her parents corroborated this, the P3 form recorded 16 years, and the age assessment report admitted by the two courts below also set the age at 16 years.
Whether the appellant's defence was considered
Both courts below considered the appellant's unsworn defence and properly rejected it as not displacing the prosecution's evidence.
The substance of the defence was about the arrest and refusal to settle the matter with the victim's parents. The courts found it cast no doubt on the prosecution's case. Consideration of a defence does not require agreement with it; disbelief of the defence does not mean it was ignored.
Claim that the appellant was not informed of his right to cross-examine
The claim was a belated afterthought; the record showed the appellant stated he was ready to proceed and cross-examined other witnesses.
The appellant never raised, in his grounds or submissions before the High Court or this Court, that he was not informed he could cross-examine the child or that he was forced to proceed. The record showed he declared readiness to proceed, and he cross-examined other witnesses, so he knew the requirement.
Legal principles established
#- In a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two courts below unless those findings are based on a misapprehension of the evidence or wrong principles.
- For purposes of the Sexual Offences Act, the relevant age of a defilement victim is the 'apparent age' and not the 'exact age', and a child victim's age may be established through the testimony of the mother, medical evidence and age assessment.
- Considering an accused person's defence does not mean agreeing with it; a court that disbelieves the defence has nonetheless considered it.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Conviction and 15-year sentence as reduced by the High Court upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C.CR.A No. 44 of 2016
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Quashing of conviction and sentence
Charge proved beyond reasonable doubt; concurrent findings of the two lower courts could not be faulted
Costs
No costs order made
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.
By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters of fact that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.
To start with, it bears repeating that for purposes of the Sexual Offences Act the relevant age is the “apparent age” and not the “exact age”.
We find this appeal devoid of merit and dismiss it accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nathaniel Chara Chanzera v Republic [2019] KECA 831 (KLR)", Case Analysis (2019). Criminal Appeal No. 28 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/831/eng@2019-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.