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Court of AppealPartially AllowedCriminal Appeal No. 51 of 2016

Erick Iddi Shatala v Republic [2020] KECA 835 (KLR)

Court of Appeal
3 April 2020
2,598 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 children under 16 cannot legally consent to sex, but cut a defilement sentence from 20 to 10 years.

What this practically means

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Executive summary

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This is a second appeal against conviction for defilement of a 14-year-old girl and a 20-year sentence under section 8(3) of the Sexual Offences Act, heard by Makhandia, Kiage and Odek, JJ.A at Kisumu. The High Court at Kakamega (Sitati, J) had dismissed the first appeal in its entirety. As a second appeal, the Court was confined to questions of law under section 361(a) of the Criminal Procedure Code and framed three issues: the complainant's capacity to consent, the appellant's entitlement to State-funded legal representation as an alleged minor, and the severity of the sentence. On consent, the Court held that a child below 16 years lacks legal capacity to consent, distinguished R v Howard and Eliud Waweru Wambui as involving older complainants, and followed Charles Kahiro Ng'ang'a and Ezekiel Oramat Sonkoy; the appellant's inducement of the complainant also negated willing consent. On minority, the Court found the sole evidence of the appellant's age - a handwritten lab note - unreliable, noted the issue was never raised at trial, and dismissed it as an afterthought, observing the appellant was a boda boda operator with a wife and means. On sentence, the Court applied Muruatetu's rejection of mandatory sentences, and, considering that the appellant was a first offender, the complainant's conduct and his youthfulness, reduced the sentence from 20 to 10 years running from 19th December 2013. The appeal against conviction was dismissed; the appeal on sentence was allowed. No costs order was made. The judgment was delivered under Rule 32(2) of the Court of Appeal Rules, Odek, JA having died before signing it.

Questions the Court framed

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

  1. 1.Whether the complainant, aged 14 years and 5 months, had the capacity to consent to sexual activity
  2. 2.Whether the appellant, alleged to have been 16 years old at the time of the trial, was entitled to legal representation at State expense and to sentencing under the Borstal Institutions Act and the Children Act
  3. 3.Whether the sentence of 20 years imprisonment was harsh and excessive

Key legal issues

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01

Capacity of a minor complainant to consent to sexual activity

Holding

A complainant below 16 years has no capacity to consent; her conduct cannot amount to consent, and cases on complainants above 16 are distinguishable.

Reasoning

Section 42 of the Sexual Offences Act defines consent as agreement by choice with the freedom and capacity to make that choice. The complainant was 14 years and 5 months old. The authorities relied on by the appellant concerned complainants above 16, the age of discretion, and were distinguishable. The appellant lured and induced the complainant with promises and deceit, so even absent the age bar, consent was not willingly given.

p. 3
02

Right to legal representation at State expense and minor-accused sentencing regime

Holding

The claim that the appellant was a minor at trial was an unsupported afterthought; the trial magistrate cannot be faulted for not ordering an age assessment where nothing indicated he was a minor.

Reasoning

The only evidence of age was a handwritten lab note, not a proper age-assessment report, produced by a witness who did not testify on age; neither the appellant nor his witnesses raised the issue at trial. On the record, the appellant was a boda boda operator with a wife and independent means, uncontested facts inconsistent with minority. Raising the issue for the first time on second appeal was an afterthought.

p. 3
03

Whether the 20-year minimum sentence under section 8(3) of the Sexual Offences Act was harsh and excessive

Holding

The trial and first appellate courts were bound by the then-mandatory minimum, but on the circumstances of this case, including that the appellant was a first offender, the sentence was interfered with and reduced to 10 years.

Reasoning

Section 8(3) prescribed a minimum of 20 years, and the High Court was bound by the law as it stood before Muruatetu, which held mandatory sentences unconstitutional for removing judicial discretion. Taking into account that the appellant was a first offender, the complainant's own conduct and his youthfulness, the Court found substance in the complaint that the sentence was harsh and reduced it to 10 years running from the original sentencing date.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal is restricted to questions of law and will not interfere with concurrent findings of fact by the two courts below unless they are based on no evidence, a misapprehension of the evidence, or wrong principles.
  • A child below the age of 16 years does not have the legal capacity to consent to sexual activity, and conduct amounting to childish foolishness cannot amount to consent.
  • An allegation that an accused was a minor that was never raised at trial cannot succeed on a second appeal where nothing apparent before the trial court indicated the accused was a minor.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Appeal allowed on sentence: 20-year sentence set aside and substituted with a 10-year sentence
  3. 3.Sentence to run from 19th December 2013 when the trial court passed the initial sentence

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kakamega
HCCRA No. 22 of 2014
Jurisdiction invoked
Second appeal to the Court of Appeal under Section 361(a) of the Criminal Procedure Code, restricted to matters of law

Relief refused

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Quashing of the conviction and declaration of the trial as a nullity on the ground of alleged fair-trial violations and complainant's consent

A child below 16 years lacks capacity to consent, and the age of the appellant as a minor was raised for the first time on second appeal and unsupported by proper evidence

p. 3

Costs

No costs order is stated in the judgment.

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.

It is clear to us that a child below the age of 16 years does not have the capacity to consent and is incapable of effective discretion when it comes to the decision to engage in sexual activities.
p. 3Capacity to consent in defilement
That could not be a valid answer to a charge of defilement because the complainant, being under the age of sixteen years, could not legally consent to such an act.
p. 3Conduct of complainant under 16 not consent
For the reasons we have set out herein we dismiss the appeal against conviction. We allow it on sentence, to the extent that we set aside the 20 year sentence meted out by the trial court and upheld by the High court and substitute it with a 10 year sentence to run from 19th December 2013 when the trial court passed the initial sentence.
p. 3Final orders - conviction affirmed, sentence reduced

Issues in the judgment

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minor

The judgment states that the defence of complainant's consent was rejected partly because the appellant induced her 'with lies and deceit', yet also records that the complainant told the police the appellant was her boyfriend and stayed with him voluntarily over two nights; the court nonetheless held consent legally irrelevant given her age.

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, "Erick Iddi Shatala v Republic [2020] KECA 835 (KLR)", Case Analysis (2020). Criminal Appeal No. 51 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/835/eng@2020-04-03

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