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Court of AppealDismissedCriminal Appeal 197 of 2016· [2022] KECA 1113 (KLR)

COM v Republic

Court of Appeal
7 October 2022
PKP.O. KiageMNMumbi NgugiFTF. Tuiyott
3,043 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed a man's conviction and 10- and 15-year sentences for attempting to defile a six-year-old girl, rejecting every challenge he raised.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Kiage, Ngugi and Tuiyott, JJA) dismissed this second appeal against conviction for attempted defilement and deliberately attempting to transmit HIV, and the concurrent sentences of 10 and 15 years' imprisonment. The appellant had been convicted by the trial court and lost his first appeal before Majanja, J in the High Court at Homa Bay. Sitting under Section 361(1)(a) of the Criminal Procedure Code, the Court confined itself to matters of law. It rejected the claim that the charge sheet was defective: the discrepancy between the names SA and JAO was immaterial, the appellant admitted being known as Mrefu, and the exact age of the child complainant was not material under Section 9 of the Sexual Offences Act so long as childhood was proved. On the P3 form, the Court held that Section 77 of the Evidence Act permits production by a person other than the maker, though a proper basis should be laid; the basis here was inadequate but the appellant did not object and the offence could be proved without medical evidence. The victim's evidence was vivid, unshaken and corroborated by PW5 and the medical findings; even uncorroborated, the proviso to Section 124 of the Evidence Act would sustain conviction given the trial court's recorded reasons. Two grounds raised for the first time on second appeal were declined. The Court affirmed both conviction and sentence and dismissed the appeal in its entirety.

Key legal issues

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01

Defects in the charge sheet (name, alias, age)

Holding

None of the alleged discrepancies was fatal; the identity of the person standing trial was not in doubt and the complainant's exact age was immaterial once childhood was proved.

Reasoning

The victim referred to herself as SA while her father identified her as JAO; nothing turns on which name she used in testimony. The appellant admitted being known as Mrefu, so identity was not in doubt. The age conflict was not fatal because under Section 9 SOA only proof that the complainant was a child matters, confirmed by age assessment and the Child Health and Nutrition Card.

p. 4
02

Production of the P3 form by a person other than its maker

Holding

Section 77 of the Evidence Act permits production of a medical report by someone other than the maker; the basis laid here was inadequate but the appellant did not object and the offence could be proved without medical evidence.

Reasoning

The court endorsed Majanja J's reading of Section 77 but stressed that a proper basis for production by a non-maker should be laid, such as the maker's unavailability or difficulty in availing him. The statement that Komen was in Suba District but could not attend was insufficient. However, absence of protest by the accused and the nature of the attempted defilement charge meant no prejudice arose.

p. 5
03

Sufficiency and corroboration of the minor complainant's evidence

Holding

The victim's evidence was vivid, unshaken and corroborated by PW5's testimony and the medical evidence; even uncorroborated, the proviso to Section 124 would sustain conviction given the trial court's recorded reasons for believing her.

Reasoning

The victim knew the assailant and gave a vivid account; PW5 found the appellant with the minor in the bush and recognized him by torchlight; dry semen was found on the child's labia majora. The trial court recorded reasons for being satisfied the child told the truth, satisfying Section 124. Second appeal deference to concurrent factual findings applies absent perversity.

p. 5
04

Raising new grounds on second appeal

Holding

Grounds on Section 211 CPC and Section 36(1) SOA DNA testing, not raised in the first appeal, could not properly arise before the Court.

Reasoning

Following Alfayo Gombe Okello v Republic, the Court declined to consider two grounds because they were not raised in the first appeal. A second appeal is confined to matters of law under Section 361(1)(a) CPC, and parties cannot introduce at the second appellate stage issues not pursued below.

p. 6
05

Sentence

Holding

The sentences of 10 and 15 years' imprisonment, running concurrently, were deserved and affirmed.

Reasoning

The appellant, knowing he was HIV positive, attempted to defile a six-year-old child and may have completed the act had the victim not cried out. The Court found the sentence deserved and affirmed both conviction and sentence, dismissing the appeal entirely.

p. 6

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 unless the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
  • A new ground not raised in the first appeal cannot properly be raised for the first time on second appeal.
  • Under Section 77 of the Evidence Act, a medical report may be produced in evidence by a person other than its maker, though a proper basis for such production should be laid.
  • Where the accused is known by an alias, it is desirable that the alias be included in the charge sheet, but the exact age of a child complainant under Section 9 of the Sexual Offences Act is not material so long as it is proved the complainant is a child.
  • Under the proviso to Section 124 of the Evidence Act, a court may convict on the uncorroborated evidence of a victim of a sexual offence if, for recorded reasons, it is satisfied the victim is telling the truth.

Court orders

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  1. 1.Conviction and sentence by the trial court as affirmed on first appeal are affirmed
  2. 2.The appeal is dismissed in its entirety

Authorities

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Legislation

  • Sexual Offences ActSection 9(1)(2)
  • Sexual Offences ActSection 211
  • Sexual Offences ActSection 11(1)
  • Sexual Offences ActSection 36(1)
  • Criminal Procedure CodeSection 214
  • Criminal Procedure CodeSection 361(1)(a)
  • Criminal Procedure CodeSection 211
  • Criminal Procedure CodeSection 12
  • Evidence ActSection 77
  • Evidence ActSection 124
  • Oaths and Statutory Declarations ActSection 19

Cases cited (3)

  • Karani vs. R
    [2010] 1 KLR 73

    Scope of second appeal confined to matters of law under Section 361 CPC

  • Christopher Nyoike Kangethe v Republic
    [2010] eKLR (Criminal Appeal No 306 of 2005)

    Concurrent findings of fact may be upset only if perverse or arrived at in breach of principles of law

  • Alfayo Gombe Okello v Republic
    [2010] eKLR Criminal Appeal No. 203 of 2009

    New grounds not raised in the first appeal cannot be raised on second appeal

On appeal from
High Court of Kenya at Homa Bay
HCCA No. 46 of 2016
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code (second appeal limited 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, "COM v Republic", Case Analysis (2022). Criminal Appeal 197 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1113/eng@2022-10-07

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