George Onselio Mokadu Republic [2020] KECA 853 (KLR)

The Court invoked section 361(1)(a) CPC, which bars interference with findings of fact on second appeal, severity of sentence being treated as a matter of fact. It adopted the test in David Njoroge Macharia and Karingo v Republic: the question is whether there was any evidence on which the trial court could find as it did. Both lower courts made concurrent factual findings on penetration, identification and age, so the Court would not re-evaluate them.

The Court adopted the High Court's statement of the three ingredients and its analysis: the birth certificate fixed the complainant's age at 14, squarely within section 8(3) of the Sexual Offences Act; the parties knew each other as neighbours, satisfying identification; and the clinical officer's conclusion supported penetration. The absence of an eyewitness did not detract from this, as the complainant's credible evidence plus the medical corroboration sufficed under the proviso to section 124 of the Evidence Act.

The respondent contended that section 211 was complied with and that the appellant made an unsworn statement of defence, showing he understood the charges. The Court, sitting on a second appeal on matters of law, found nothing in the record demonstrating a violation of Articles 25(c) and 50(2)(a) of the Constitution or prejudice sufficient to overturn the concurrent conclusions of the two courts below on the adequacy of the trial.

Although severity of sentence is generally a matter of fact outside second-appeal jurisdiction, the Court invoked Muruatetu's departure from mandatory sentencing. It noted the appellant was 20 years old when the offence was committed, that the complainant accompanied him willingly without force or coercion (consent being legally irrelevant only by reason of her age), and considered the totality of the circumstances in reducing the sentence.