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Court of AppealDismissedCriminal Appeal No. 115 of 2015· [2020] KECA 936 (KLR)

Antony Odhiambo Ojwang v Republic

Court of Appeal
31 January 2020
William OukoW. OukoMartha Karambu KoomeM. KoomeFSF. Sichale
1,177 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a 20-year defilement sentence, ruling that second appeals can only challenge legal errors, not re-argue facts already decided twice.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Ouko, P, Koome and Sichale, JJA) dismissed a second appeal by Antony Odhiambo Ojwang against his conviction for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and a sentence of twenty years' imprisonment imposed by the Senior Resident Magistrate, Rongo, on 10th December 2010, and upheld on first appeal. The appellant's supplementary grounds faulted the first appellate judge for failing to find that defilement was not proved, failing to re-evaluate the evidence, failing to find the charge sheet defective, and failing to appreciate the law. Counsel for the appellant argued that the complainant's evidence described touching rather than penetration, that the medical evidence showed a normal whitish discharge, and that the complainant's age was not proved. The State maintained that the age of fifteen years was given by the complainant's mother and corroborated by the Clinical Officer, that the medical findings (tenderness, injuries to the labia minora and vaginal introitus, epithelial cells) were suggestive of forcible penetration, and that identity was proved by recognition, the parties being cousins, in daylight. The court held that as a second appeal its jurisdiction was confined by section 361(1) of the Criminal Procedure Code to matters of law, and that the concurrent findings of fact by the two courts below - on age, penetration and identity - were supported by evidence and could not be disturbed. The appeal was accordingly dismissed in its entirety, with no separate costs order recorded.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal

Holding

By virtue of section 361(1) of the Criminal Procedure Code, the Court of Appeal on a second appeal considers only matters of law, not matters of fact already considered and re-evaluated by the trial court and first appellate court.

Reasoning

The court invoked section 361(1) of the Criminal Procedure Code, which permits appeal from the High Court's appellate jurisdiction only on a matter of law and bars appeals on matters of fact. It reinforced this with David Njoroge Macharia and Kaingo, which confine second appeals to points of law and preserve concurrent findings of fact unless based on no evidence or wrong principles.

p. 2
02

Proof of defilement (age, penetration, identity)

Holding

The elements of defilement were proved: the victim's age of fifteen years was established by her mother's testimony and corroborated by the Clinical Officer; penetration was supported by medical findings; and identity was proved by recognition, the appellant being a cousin of the victim, in daylight.

Reasoning

The two courts below concurrently found the victim was fifteen years old, supported by P.W.2 (mother) and P.W.3 (Clinical Officer), who also found injuries suggestive of forcible penetration. Identity was by recognition as cousins, and the incident occurred at 11.00 a.m. These being concurrent findings of fact, the second appellate court had no basis to disturb them.

p. 2

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 based on no evidence, a misapprehension of the evidence, or wrong principles.

Court orders

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  1. 1.The appeal is dismissed

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006Section 8(1) as read with section 8(3)
  • Sexual Offences Act No. 3 of 2006Section 11(1)
  • Criminal Procedure CodeSection 361(1)
  • Criminal Procedure CodeSection 7

Cases cited (4)

  • David Njoroge Macharia vs. Republic
    [2011] eKLR

    Summing up the second appellate mandate: matters of law only; concurrent findings of fact not disturbed unless based on no evidence, misapprehension, or wrong principles.

  • Chemagong vs. Republic
    [1984] KLR 213

    Cross-referenced within David Njoroge Macharia quote on second appeals.

  • Kaingo versus Republic
    [1982] KLR 213

    A second appeal must be confined to points of law; test is whether there was any evidence on which the trial court could find as it did.

  • Reuben Karoti S/O Karanja versus Republic
    [1956] 17 EALA 146

    Cited within Kaingo quote on the test applicable on second appeal.

On appeal from
High Court of Kenya at Migori
Migori HC.CR.APPL. No. 4 of 2015
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal confined to matters 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, "Antony Odhiambo Ojwang v Republic", Case Analysis (2020). Criminal Appeal No. 115 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/936/eng@2020-01-31

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