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Court of AppealDismissedCriminal Appeal 6 of 2019· [2022] KECA 918 (KLR)

DKG v Republic

Court of Appeal
22 July 2022
M(MSA Makhandia (Asike-Makhandia)SKS. ole KantaiKLDr. K. I. Laibuta
2,721 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a grandfather's incest appeal, confirming his conviction and 20-year sentence despite finding the sentence technically unlawful.

What this practically means

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Executive summary

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DKG was convicted of incest contrary to section 20(1) of the Sexual Offences Act (with an alternative count of committing an indecent act) for penetrating his 11-year-old granddaughter on 22 October 2011 at Gatundu, and sentenced to 20 years' imprisonment. The Senior Resident Magistrate's Court convicted him; the High Court (Thuranira, J.) dismissed his first appeal on 22 June 2018; he brought this second appeal faulting the first appellate court for not properly re-evaluating the evidence, not addressing contradictions, not finding that crucial witnesses were not called, and dismissing his defence without basis. Before the Court of Appeal (Makhandia, ole Kantai and Laibuta, JJA), the appellant in person also complained in submissions that time spent in remand custody was not considered in sentencing, invoking various constitutional provisions. The Court reminded itself that a second appeal under section 361(1) of the Criminal Procedure Code lies only on matters of law, and that it will not disturb concurrent findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles. It found the ingredients of incest - relationship within the forbidden degree, age, penetration and identification - overwhelmingly proved, the appellant's alibi contradicted by the testimony of RK, and no lacuna in the prosecution evidence. Notably, the Court held that because the complainant was under 18, the 20-year sentence was unlawful and a life sentence was required; however, absent a cross-appeal, it left the sentence undisturbed. The appeal against both conviction and sentence was dismissed in its entirety.

Key legal issues

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01

Whether the offence of incest was proved to the required standard

Holding

Yes. The relationship within the forbidden degree, the complainant's age, penetration and identification of the appellant were all proved; the concurrent findings of the two courts below cannot be faulted

Reasoning

Both lower courts found the relationship fell within section 22 of the Sexual Offences Act and that JWN was 11 years old, a finding the appellant never disputed. Penetration was established by the evidence of JWN, SW and Dr. Ogutu and was not seriously controverted. Identification was certain: the offence occurred in broad daylight and the appellant was the complainant's grandfather living in the same compound. His conduct of locking himself in his house after the incident was inconsistent with innocence.

02

Whether failure to call crucial witnesses invalidated the conviction

Holding

No. Section 143 of the Evidence Act imposes no numerical requirement; the appellant never identified the witnesses he wanted called and there was no lacuna in the prosecution evidence

Reasoning

The Court applied Bukenya v Uganda and Keter v Republic: the prosecution must call all witnesses necessary to establish the truth, but is not obliged to call a superfluity of witnesses. Where evidence called is barely adequate, the court may infer the uncalled witnesses' evidence would have been adverse to the prosecution. Here the appellant did not indicate which crucial witnesses he wanted called, and the Court was satisfied the prosecution evidence left no room for doubt as to culpability.

03

Whether the appellant's defence (alibi) was considered

Holding

Yes. Both judgments considered and properly rejected the unsworn statement of defence; the alibi could not withstand the testimony of RK

Reasoning

The appellant's unsworn statement alleged he was at a wedding in Ongata Rongai and that the charge was a plot arising from a family land dispute. The Court perused both judgments and was satisfied the defence was properly considered and rejected. It did not displace the strong and overwhelming prosecution case, and the alibi was contradicted by the testimony of RK, the cousin who was present.

p. 4
04

Whether the 20-year sentence was lawful

Holding

The sentence was unlawful - the proviso to section 20(1) required a life sentence for a complainant under 18 - but absent a cross-appeal the Court declined to interfere

Reasoning

The evidence was clear that JWN was below 18 years at the time of the assault. Under the proviso to section 20(1) of the Sexual Offences Act the appellant ought to have been sentenced to life imprisonment, making the 20-year term unlawful. However, since the respondent did not cross-appeal on sentence, the Court left the sentence undisturbed and upheld it.

p. 5

Legal principles established

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  • A second appeal under section 361 of the Criminal Procedure Code lies only on matters of law; the Court will not interfere with concurrent findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles
  • No particular number of witnesses is required to prove any fact under section 143 of the Evidence Act; the prosecution need only call sufficient witnesses to establish the charge beyond reasonable doubt
  • Under the proviso to section 20(1) of the Sexual Offences Act, where the complainant in an incest charge is under eighteen years, the accused is liable to imprisonment for life

Court orders

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  1. 1.The appeal on both conviction and sentence is dismissed in its entirety
  2. 2.The conviction and 20 years' imprisonment sentence imposed by the trial court and upheld by the High Court stand

Authorities

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Legislation

  • Sexual Offences ActSection 20(1)
  • Sexual Offences ActSection 11(1)
  • Sexual Offences ActSection 22(1) / section 22
  • Criminal Procedure CodeSection 361(1) / section 361
  • Evidence ActSection 143
  • Constitution of KenyaArticle 25(1)
  • Constitution of KenyaArticle 50(2) and 50(2)(e)
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 20
  • Constitution of KenyaArticle 159(2)(a) & (b)

Cases cited (6)

  • BNN Vs. Republic
    Mombasa Criminal Appeal No. 232 of 2009

    Grandfather falls within forbidden degrees of consanguinity under section 22(1) of the Sexual Offences Act

  • David Njoroge Macharia Vs. Republic
    [2011] eKLR

    Second appeal confined to matters of law; non-interference with concurrent findings of fact

  • Chemagong Vs. Republic
    [1984] KLR 213

    Supports the principle on non-interference with concurrent findings of fact

  • Julius Kamau Mbugua Vs. Republic
    Criminal Appeal No. 50 of 2008

    Grievance over time in police custody before arraignment lies in civil action

  • Bukenya & Others Vs. Uganda
    [1972] EA 549

    Prosecution must call all witnesses necessary to establish the truth; inference from barely adequate evidence

  • Keter Vs. Republic
    [2007] 1 EA 135

    Prosecution need only call sufficient witnesses to establish the charge beyond reasonable doubt

On appeal from
High Court of Kenya at Nairobi
HC.CR.A. No. 154 of 2016
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

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, "DKG v Republic", Case Analysis (2022). Criminal Appeal 6 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/918/eng@2022-07-22

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