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Court of AppealDismissedCriminal Appeal No. 87 of 2017· [2020] KECA 740 (KLR)

SKK v Republic [2020] KECA 740 (KLR)

Court of Appeal
24 April 2020
William OukoW. OukoWKW. KaranjaSKS. ole Kantai
3,153 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's credible testimony, without DNA evidence, is enough to uphold a defilement conviction and life sentence.

What this practically means

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Executive summary

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This was a second appeal against conviction for defilement contrary to section 8(2) of the Sexual Offences Act and a sentence of life imprisonment. The appellant, the complainant's cousin, was convicted by the Magistrates Court at Kiambu and the High Court (Ngenye, J.) dismissed his first appeal on 8th December 2015. Before the Court of Appeal (Ouko, P., Karanja and Kantai, JJ. A) the appeal, argued by counsel on both sides, was condensed into two grounds: that the evidence did not meet the threshold for conviction, and that the life sentence was harsh. The Court restated that under section 361(1) of the Criminal Procedure Code a second appeal is confined to questions of law and that concurrent findings of fact of the two courts below command deference absent misapprehension of the evidence. It found the child complainant's age uncontested, her evidence credible and corroborated by her grandmother and the medical evidence, and held that under section 124 of the Evidence Act a minor's credible evidence may sustain a conviction where reasons for belief are recorded. It upheld the admission of the P3 form under sections 33 and 77 of the Evidence Act despite production by someone other than the examining doctor, held that a DNA test under section 36(1) of the Sexual Offences Act is discretionary and not mandatory, found no breach of the right to a fair trial, and declined to disturb the sentence since severity of sentence is a question of fact outside second appellate jurisdiction. The appeal was dismissed in entirety.

Key legal issues

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01

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

Holding

The Court's mandate is restricted to issues of law; concurrent findings of fact attract deference unless unsupported by evidence or based on misapprehension of the evidence.

Reasoning

The Court invoked section 361(1) CPR and the Karingo principle, holding it would not interfere with the trial court's and High Court's concurrent findings that the child was defiled and the appellant, well known to the child, was the perpetrator. No misapprehension of evidence was demonstrated.

p. 2
02

Whether failure to conduct a DNA test vitiates a conviction for defilement

Holding

Section 36(1) of the Sexual Offences Act is discretionary; DNA evidence is not the only means of proving a sexual offence.

Reasoning

Relying on Robert Mutungi Mumbi v. Republic, the Court held the provision empowering DNA sampling is not mandatory. The appellant was identified by the child and corroborated by the grandmother who saw the child leaving his house, so a DNA test was unnecessary in the circumstances.

p. 4
03

Admissibility of medical reports produced by a person other than the maker

Holding

The P3 form and medical reports were properly admitted under sections 33 and 77 of the Evidence Act after several adjournments failed to secure the examining doctor's attendance.

Reasoning

Section 33 admits statements of persons whose attendance cannot be procured without unreasonable delay or expense, and section 77(1) permits medical practitioners' reports in criminal proceedings. The trial court properly allowed production by another person after the numerous adjournments.

p. 3
04

Corroboration of a child of tender years and the right to a fair trial

Holding

Under section 124 of the Evidence Act a credible minor's evidence, with recorded reasons for belief, suffices for conviction; corroboration by PW1 and PW3 existed here. No violation of the right to fair trial was established.

Reasoning

Both courts below found the child's evidence credible and corroborated. On representation, the appellant, though unrepresented at trial, was represented by counsel before the High Court; and the extensive cross-examination of the doctor showed he understood the language used.

p. 4
05

Interference with sentence on second appeal

Holding

The life sentence was lawful and well deserved; severity of sentence is a question of fact outside a second appellate court's domain.

Reasoning

The Court declined to interfere with the sentence, holding it lawful in the circumstances and noting that severity of sentence is a factual question beyond its restricted jurisdiction under section 361(1) of the Criminal Procedure Code.

p. 4

Legal principles established

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  • On a second appeal the Court is confined to issues of law and will not interfere with concurrent findings of fact of the two lower courts unless those findings are based on no evidence or a misapprehension of the evidence.
  • DNA testing on a suspect is not mandatory for a sexual offence to be established; section 36(1) of the Sexual Offences Act is discretionary, not mandatory.
  • Under section 124 of the Evidence Act, a court may convict on the sole credible evidence of a minor if it records the reasons for believing the victim is truthful.
  • Medical reports may be admitted under sections 33 and 77 of the Evidence Act by a person other than their maker where the examining practitioner's attendance cannot be procured despite adjournments.

Court orders

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  1. 1.The appeal is dismissed in entirety; the conviction and sentence of life imprisonment imposed by the trial court and upheld by the High Court stand.

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006section 8(2)
  • Sexual Offences Act No. 3 of 2006section 11(1)
  • Sexual Offences Act No. 3 of 2006section 36(1)
  • Sexual Offences Act No. 3 of 2006section 26
  • Evidence Actsection 19(1) and (2)
  • Evidence Actsection 124
  • Evidence Actsection 33
  • Evidence Actsection 77(1) and (2)
  • Criminal Procedure Codesection 361(1)

Cases cited (7)

  • JKS v. Republic
    Eldoret Criminal Appeal No. 94 of 2012
  • Karingo -vs- R
    (1982) KLR 213
  • Reuben Karari C/O Karanja -vs- R
    (1956) 17 EACA 146
  • Thiaka v. Republic
    [2006] 2 EA 326
  • Jacob Odhiambo Omumbo v. Republic
    Kisumu Criminal Appeal No. 80 of 2008
  • George Kioyi v. Republic
    Nyeri Criminal Appeal No. 270 of 2012
  • Robert Mutungi Mumbi v. Republic
    Malindi Criminal Appeal No. 52 of 2014
On appeal from
High Court of Kenya at Nairobi
H.C.CR. A. No. 205 of 2013
Jurisdiction invoked
Second appeal under section 361(1) of the Criminal Procedure Code, restricted to issues of law

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, "SKK v Republic [2020] KECA 740 (KLR)", Case Analysis (2020). Criminal Appeal No. 87 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/740/eng@2020-04-24

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