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Court of AppealPartially AllowedCriminal Appeal No. 68 of 2019· [2020] KECA 370 (KLR)

SMG v Republic [2020] KECA 370 (KLR)

Court of Appeal
7 August 2020
2,348 words in judgment
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The bottom line

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Kenya's Court of Appeal upheld an incest conviction but reduced a mandatory life sentence to 20 years, following the Muruatetu decision on mandatory sentences.

What this practically means

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Executive summary

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This was a second appeal by SMG against his conviction for incest contrary to section 20(1) of the Sexual Offences Act and the sentence of life imprisonment, both upheld by Nyakundi, J of the High Court on first appeal. The appellant, charged on the main count and an alternative count of committing an indecent act with a child, was convicted by the trial magistrate on the main count and sentenced to life imprisonment. Before the Court of Appeal he raised supplementary grounds alleging breaches of sections 211, 137, 214, 213 and 310 of the Criminal Procedure Code, Articles 50(2)(j)(h) and 50(4) of the Constitution, and section 77(2) of the Evidence Act, and that witnesses were hostile and his defence ignored. The Court, sitting as Koome, Warsame and Sichale, JJ.A, restated its mandate under section 361(1)(a) of the Criminal Procedure Code: a second appeal is confined to matters of law and concurrent findings of fact will not be disturbed unless based on no evidence, a misapprehension of the evidence, or wrong principles. It found the conviction properly founded on the complainant's testimony, the medical evidence of a broken hymen and psychological trauma, and rejected the appellant's defence as a fabrication. The Court, however, applying the Supreme Court's decision in Francis Karioko Muruatetu and this Court's own decision in Christopher Ochieng, held that the mandatory life sentence under the Sexual Offences Act could not stand. It set aside the life sentence and substituted twenty years imprisonment from the date of conviction on 22nd October 2014. The conviction was affirmed; the appeal succeeded only on sentence.

Key legal issues

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01

Scope of second appeal under section 361(1)(a) of the Criminal Procedure Code

Holding

The Court is confined to matters of law; it will not interfere with concurrent findings of fact unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.

Reasoning

The Court invoked section 361(1)(a) of the Criminal Procedure Code, which bars second appeals on matters of fact and against sentence except where enhanced. Relying on David Njoroge Macharia and Kaingo v Republic, it reaffirmed that the test is whether there was any evidence on which the trial court could find as it did. The concurrent findings that the appellant defiled his daughter were supported by the complainant's testimony and medical evidence.

p. 2
02

Sufficiency of evidence supporting the conviction for incest

Holding

The conviction was properly founded; P.W.1's testimony, the missing hymen found by P.W.5 and Dr. Nafisa Bakari's report of psychological trauma supported the findings of both courts below.

Reasoning

P.W.1, aged 17, narrated repeated defilement by her father who threatened her into silence. Medical examination found her hymen broken and the treating doctor found psychological trauma and suicidal thoughts. The appellant's defence that his wife and children framed him over an affair was rejected as implausible and a figment of his imagination. The Court found no basis to disturb the concurrent findings.

p. 3
03

Legality of the life imprisonment sentence under the Sexual Offences Act in light of Muruatetu

Holding

The life sentence imposed as the mandatory sentence under section 20(1) of the Sexual Offences Act could not stand; it was set aside and substituted with 20 years imprisonment from the date of conviction.

Reasoning

Relying on Francis Karioko Muruatetu, which declared the mandatory death sentence for murder unconstitutional, and on this Court's earlier decision in Christopher Ochieng v Republic applying that dictum to mandatory sentences under the Sexual Offences Act, the Court held the life sentence untenable and substituted a determinate term of twenty years running from the date of conviction, 22nd October 2014.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below unless those findings are based on no evidence, a misapprehension of the evidence, or wrong principles.
  • Following Muruatetu, a life imprisonment sentence imposed on the basis of the mandatory sentence under the Sexual Offences Act cannot stand; the appellate court may substitute a determinate sentence.

Court orders

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  1. 1.The sentence of life imprisonment is set aside and substituted with a term of twenty (20) years imprisonment from the date of conviction, that is 22nd October, 2014
  2. 2.The conviction of the appellant is upheld

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006section 20(1)
  • Sexual Offences Act No. 3 of 2006section 11(1)
  • Sexual Offences Act No. 3 of 2006section 8(1)
  • Criminal Procedure Codesection 361(1)(a)
  • Criminal Procedure Codesection 211
  • Criminal Procedure Codesection 137
  • Criminal Procedure Codesection 214
  • Criminal Procedure Codesection 213
  • Criminal Procedure Codesection 310
  • Criminal Procedure Codesection 7
  • Constitution of Kenya, 2010Article 50(2)(j)(h)
  • Constitution of Kenya, 2010Article 50(4)
  • Evidence Act, Chapter 80section 77(2)
  • Evidence Act, Chapter 80section 163(1)
  • Penal Codesection 204

Cases cited (6)

  • David Njoroge Macharia vs. Republic
    [2011] eKLR
  • Chemagong vs. Republic
    [1984] KLR 213
  • Kaingo versus Republic
    [1982] KLR 213
  • Reuben Karoti S/O Karanja versus Republic
    [1956 17 EALA 146]
  • Francis Karioko Muruatetu & another vs. Republic
    SC Petition No. 16 of 2015
  • Christopher Ochieng vs. Republic
    [2018] eKLR, Kisumu Criminal Appeal No. 202 of 2011
On appeal from
High Court of Kenya at Nairobi
HC.CRA No. 30 of 2015
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal on matters of law only)

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, "SMG v Republic [2020] KECA 370 (KLR)", Case Analysis (2020). Criminal Appeal No. 68 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/370/eng@2020-08-07

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