Kaaka Masara Margeti v Republic
The bottom line
#Kenya's Court of Appeal upheld a 20-year defilement sentence, confirming that trials can continue after a magistrate changes if the accused's lawyer agrees.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 200(3) of the Criminal Procedure Code
There was no non-compliance; counsel for the appellant, on the record of 27 March 2009, elected not to seek a de novo hearing or recall of witnesses.
The record showed the trial was part-heard before Hon. Wanjala who heard all eight prosecution witnesses and made a section 210 ruling. On transfer, counsel holding brief stated the defence did not seek a de novo hearing. The court held that counsel had ostensible authority to act in the client's best interests and that section 200(3) gives an accused three options, any of which may be exercised through counsel. The appellant therefore suffered no prejudice.
Proof of the complainant's age
Age was sufficiently proved; the complainant's own statement, her mother's evidence and the medical officer's estimate supported concurrent findings that she was 15 years old.
The elements of defilement require a child victim and penetration. On age, a court may rely on medical evidence, a birth certificate, or the word of the child, parents or guardians. The two courts below made concurrent findings of fact on age, which a second appellate court must respect. The discrepancy between 14 and 15 years did not displace the finding that the complainant was a child.
Reception of evidence of PW1 and PW2 without voire dire examination
Once the complainant's age was established as 15 years, voire dire examination was unnecessary; PW2 was an adult male.
Citing Maripett Loonkomok, the court affirmed that the threshold for voire dire is 14 years and that failure to conduct the examination on a child of tender years does not per se vitiate the prosecution case. There was no suggestion that PW2, who testified as an adult male, was a child of tender years. The ground therefore failed.
Sufficiency of evidence of penetration and reliance on the proviso to section 124 of the Evidence Act
The evidence of PW1 was detailed and corroborated by PW2 and PW3 and by the medical evidence; the conviction was safe notwithstanding that the medical evidence did not conclusively link the appellant to the seminal fluid.
The High Court found PW1 gave a detailed account of the rape, corroborated by PW2 who caught the appellant in the act, and PW3 who observed discharge. The trial court made a specific finding under section 124 that the complainant was a witness of truth. The proviso permits conviction on the victim's evidence alone where the court records reasons for believing her; penetration need only be partial.
Whether the charge sheet was defective
The omission of the words 'intentionally' or 'unlawful' did not render the charge defective.
Following Josephat Wanjala Olbai, the court held that defilement is in itself unlawful and that those words are not ingredients of the offence under section 8(1) of the Sexual Offences Act; they are elements only of rape and attempted rape under sections 3(1) and 4 of the Act.
Whether the sentence was excessive in light of Muruatetu
No basis existed to interfere with the 20-year sentence imposed by the High Court, which was the statutory minimum for an offence under section 8(1)(3) of the Sexual Offences Act.
The trial court's 25-year sentence exceeded the statutory minimum of 20 years. The High Court, finding the sentence not inherently illegal but excessive, substituted 20 years. The Court of Appeal found that even applying Muruatetu there was no basis to interfere further with that sentence.
Effect of a State concession on appeal
A first appellate court is duty bound to re-evaluate the evidence and determine whether a State concession is merited rather than allow the appeal automatically.
The State had conceded the first appeal on the ground that PW1 and PW2 were not competent to testify for lack of voire dire examination. Ngenye, J. properly re-evaluated the evidence, found no substance in the concession and rejected it. The Court of Appeal endorsed this approach, citing Mwanguo Gwede Mwarua. Before the Court of Appeal itself, the State opposed the appeal.
Legal principles established
#- On second appeals, the Court of Appeal considers only issues of law and must respect concurrent findings of fact of the two courts below unless those findings are unsupported by the evidence or rest on a misapplication of the evidence.
- A first appellate court must consider the issues of law raised even where the State concedes the appeal, to determine whether the concession is merited.
- Section 200(3) of the Criminal Procedure Code gives an accused person three options upon a change of magistrate: a de novo hearing, recall of all or some witnesses, or continuation from where the previous officer reached; represented counsel may make that election.
- In determining the age of a child, a court may rely, apart from medical evidence and a birth certificate, on the word of the child, parents or guardians.
- Voire dire examination is required only for children of tender years, the threshold being 14 years; failure to conduct it does not per se vitiate the prosecution case.
- The absence of the words 'intentionally' and 'unlawful' from the particulars of a charge of defilement does not render the charge defective.
- Under the proviso to section 124 of the Evidence Act, a court may convict on the evidence of a victim of a sexual offence alone if, for reasons recorded, it is satisfied that the victim is telling the truth.
Court orders
#- 1.The appeal is dismissed in its entirety
- On appeal from
- High Court at Nairobi
- H.C.CR.A 517 of 2009
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal confined to issues of law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaaka Masara Margeti v Republic", Case Analysis (2020). Criminal Appeal No. 96 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/728/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.