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Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 12 of 2014

Teddy Kawire Odero v Republic [2019] KECA 997 (KLR)

Court of Appeal of Kenya
8 February 2019
2,854 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 confirmed that a child victim's credible testimony alone can sustain a defilement conviction, and DNA evidence is not required.

What this practically means

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Executive summary

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The appellant, Teddy Kawire Odero, was convicted by the Senior Principal Magistrate's Court at Makadara of defilement contrary to Section 8 of the Sexual Offences Act and sentenced to 20 years imprisonment. His first appeal to the High Court (Mbogholi Msagha J.) was dismissed on 19th September 2013, the conviction and sentence being upheld. He then lodged a second appeal to the Court of Appeal raising fourteen grounds, summarised as attacking the credibility of the minor witnesses, the sufficiency of medical evidence, the absence of DNA testing, proof of the complainant's age, and alleged failure by the first appellate court to re-evaluate the evidence. The Court of Appeal (Visram, W. Karanja and Koome JJ.A.) noted that under Section 361 of the Criminal Procedure Code a second appeal is confined to matters of law. It held that by dint of the proviso to Section 124 of the Evidence Act, a conviction may rest on the uncorroborated evidence of a child victim where the court is satisfied the child is telling the truth; that DNA testing is not necessary to prove defilement, the fact of penetration being provable by oral or circumstantial evidence; and that the complainant's age of 13 years was established by the medical records, sustaining the charge under Section 8(3). Finding the evidence of the minor witnesses cogent and credible and discerning no basis for disturbing the concurrent findings of fact of the two courts below, the Court dismissed the appeal in its entirety.

Questions the Court framed

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

  1. 1.Whether the trial court and the first appellate court erred in relying on the evidence of PW1 and PW4, both minors, as the basis of the appellant's conviction
  2. 2.Whether the absence of DNA testing or tangible medical evidence linking the appellant to the defilement vitiated the conviction
  3. 3.Whether the age of the complainant was proved to sustain a charge under Section 8(3) of the Sexual Offences Act
  4. 4.Whether there was proof of penetration beyond reasonable doubt
  5. 5.Whether the Court should interfere with the concurrent findings of fact of the two courts below

Key legal issues

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01

Reliance on uncorroborated evidence of minor witnesses

Holding

The conviction could rest on the evidence of PW1 and PW4, both minors, since the courts below were satisfied the complainant was telling the truth as required by the proviso to Section 124 of the Evidence Act

Reasoning

Section 124 of the Evidence Act as amended abolishes the requirement of corroboration where the victim of a sexual offence is a child, provided the court records its satisfaction that the victim is telling the truth. Both courts below believed PW1's testimony; PW4 underwent voire dire and testified under oath. The concurrent finding that the evidence was cogent and credible could not be disturbed on second appeal.

p. 3
02

Necessity of DNA evidence in defilement cases

Holding

DNA testing is not required to prove defilement; the fact of penetration may be proved by oral evidence of the victim or circumstantial evidence

Reasoning

The Court relied on Aml v Republic and Kassim Ali v Republic to hold that medical or DNA evidence is not decisive. The complainant's testimony, the fresh tears found on her genitalia, and her unchallenged statement that the appellant had defiled her on several occasions were sufficient to prove penetration beyond reasonable doubt.

p. 3
03

Proof of the complainant's age

Holding

The age of the complainant was sufficiently proved by medical records showing she was 13 years old at the time of the offence, sustaining a charge under Section 8(3) of the Sexual Offences Act

Reasoning

Although the complainant stated she was 15 years old when she testified in 2009, the Nairobi Women's Hospital report and the P3 form showed she was 13 at the time of the offence in 2007. There were concurrent findings of fact by the two courts below that she was under 15, which the Court would not disturb.

p. 3
04

Circumstances for interfering with concurrent findings of fact on second appeal

Holding

Concurrent findings of fact may be disturbed only where they are based on no evidence at all, on a perversion of the evidence, or where no reasonable tribunal properly directing itself would reach them

Reasoning

Relying on Adan Muraguri Mungara v Republic, the Court reiterated that it owes deference to concurrent findings of the trial court and first appellate court on second appeal. None of the circumstances justifying interference existed; the appellant was properly convicted and the appeal lacked merit.

p. 4

Legal principles established

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  • A second appeal to the Court of Appeal is confined to points of law and the Court will not interfere with concurrent findings of fact unless based on no evidence
  • Where the victim of a sexual offence is a child of tender years, corroboration is not required if the court, by dint of the proviso to Section 124 of the Evidence Act, is satisfied that the victim is telling the truth
  • The fact of rape or defilement is not proved by way of a DNA test but by way of evidence

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The conviction of the appellant for defilement contrary to section 8(2) of the Sexual Offences Act, 2006 and the sentence of 20 years imprisonment upheld

The bench

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

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Nairobi
H.C.CR.A. No. 80 of 2012
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)

Relief refused

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The appellant's appeal against conviction and sentence

The Court found no basis to disturb the concurrent findings of fact of the two courts below; the evidence of the minor witnesses was cogent and credible and penetration was proved beyond reasonable doubt

p. 4

Costs

No costs order made in this criminal appeal.

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.

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.
p. 2Scope of second appeals
It is now settled that the Courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.
p. 3Corroboration of child victims in sexual offences
The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.
p. 3Proof of defilement without DNA
For the purposes of this appeal, there are two essential ingredients of the offence of defilement: first, there must be proof of penetration and second, there must be proof that the complainant was a child between the ages of twelve and fifteen years.
p. 3Ingredients of defilement
We are satisfied that the appellant was properly convicted of the offence of defilement contrary to section 8(2) of the Sexual Offences Act, 2006. This appeal is bereft of merit and the same is accordingly dismissed as we so order.
p. 4Disposition

Issues in the judgment

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minor

Paragraph numbering error - two consecutive paragraphs are both numbered 25, and the block quotation of Karingo v Republic appears garbled/truncated mid-sentence

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, "Teddy Kawire Odero v Republic [2019] KECA 997 (KLR)", Case Analysis (2019). Criminal Appeal No. 12 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/997/eng@2019-02-08

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