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Court of AppealDismissedCriminal Appeal No 62 of 2020· [2023] KECA 758 (KLR)

SKM v Republic (Criminal Appeal 62 of 2020) [2023] KECA 758 (KLR)

Court of Appeal of Kenya
22 June 2023
ASAsike-MakhandiaAMA.K. MurgorSKS. ole Kantai
3,469 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 that an intact hymen does not disprove defilement, because partial penetration alone is enough to prove the offence.

What this practically means

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Executive summary

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The appellant, SKM, was convicted of incest contrary to section 20(1) of the Sexual Offences Act for penetrating his 9-year-old daughter, SM, on diverse dates in February 2016, and sentenced to life imprisonment. The High Court dismissed his first appeal in its entirety. On second appeal to the Court of Appeal, he raised four complaints: that the voir dire examination of the child complainant was improperly conducted; that the trial court wrongly proceeded while he was unwell; that penetration was not proved because the MSF medical report and the P3 form were contradictory; and that the charges were motivated by a grudge with his wife. The Court, sitting as Asike-Makhandia, Murgor and ole Kantai JJA in a single joint judgment, confined itself to matters of law under section 361 of the Criminal Procedure Code and applied the principle that it will not disturb concurrent findings of fact absent absence of evidence, misapprehension of evidence, or wrong principles. It held that the voir dire complied with section 19(1) of the Oaths and Statutory Declarations Act, that the appellant suffered no prejudice from the commencement of the trial, and that penetration was proved: an intact hymen due to a congenital deformity does not negate penetration, which may be partial, and healing injuries around the vaginal entry point sufficed. The grudge claim was implausible since the victim and her teacher, not the mother, made the report. The conviction and life sentence were upheld and the appeal dismissed in its entirety. No costs order was made.

Key legal issues

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01

Whether the voir dire examination of the child complainant was properly conducted

Holding

The voir dire was properly conducted; although the magistrate did not specifically ask what giving evidence on oath meant, the questions established the child understood the duty of telling the truth, satisfying section 19(1) of the Oaths and Statutory Declarations Act.

Reasoning

Section 19(1) of the Oaths and Statutory Declarations Act permits a child who does not understand the nature of an oath to give unsworn evidence if possessed of sufficient intelligence and understanding of the duty to speak the truth. The trial court, having seen and heard SM, concluded she understood the solemnity of the proceedings and ordered sworn testimony. The court deferred to that assessment and found substantial compliance.

p. 4
02

Whether the trial court erred in proceeding with the trial while the appellant claimed to be unwell

Holding

The trial court was entitled to proceed; there was no medical evidence of an ailment impairing the appellant's ability to participate, and he actively cross-examined all witnesses without prejudice.

Reasoning

The appellant complained of a bullet lodged in his chest since 2014 but produced no medical documentation showing incapacity. He cross-examined SM, was given a further opportunity to cross-examine after the charge sheet was amended (which he declined), and cross-examined all other witnesses. The court found no prejudice from commencement of the trial and dismissed this ground.

p. 4
03

Whether the offence of incest/defilement was proved to the required standard, particularly penetration

Holding

Penetration was proved beyond reasonable doubt; an intact hymen due to a congenital deformity does not negate penetration, which may be partial, and the complainant's cogent evidence was properly corroborated by the medical evidence.

Reasoning

The medical reports were not contradictory: both found hyperemic vaginal walls and an intact but imperforated hymen, and the P3 form additionally recorded healing injuries at the vaginal entry. Penetration under section 2 of the Sexual Offences Act may be partial or complete, so rupture of the hymen is unnecessary. SM's testimony was cogent and reliable and the court was entitled to convict on it under section 124 of the Evidence Act.

p. 6
04

Whether a grudge between the appellant and SM's mother undermined the prosecution case

Holding

The grudge claim was implausible because it was SM herself and her teacher, not the mother, who reported the matter to the police.

Reasoning

The appellant alleged a land dispute with his wife motivated the charges. The record showed the report of incest was lodged by the victim and her teacher. The courts below were right to disregard the grudge allegation and this ground failed.

p. 7

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law under section 361 of the Criminal Procedure Code 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.
  • Establishment of penetration under the Sexual Offences Act does not require rupture of the hymen; bruises, abrasions and injuries in the internal or external area of the vagina suffice as proof of partial or complete penetration.
  • It is the court's sole prerogative to determine whether a child of tender years will testify under oath or not, following a voir dire examination.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction and sentence of life imprisonment are upheld

Authorities

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Legislation

  • Sexual Offences Actsection 20(1)
  • Sexual Offences Actsection 11(1)
  • Sexual Offences Actsection 2
  • Criminal Procedure Codesection 361
  • Oaths and Statutory Declarations Actsection 19(1)
  • Evidence Actsection 124

Cases cited (4)

  • Maripett Loonkomok vs Republic
    (2016) eKLR
  • David Njoroge Macharia vs Republic
    [2011] eKLR
  • Chemagong v. R
    [1984] KLR 611
  • George Owiti Raya vs Republic
    [2013] eKLR
On appeal from
High Court of Kenya
Jurisdiction invoked
Section 361 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, "SKM v Republic (Criminal Appeal 62 of 2020) [2023] KECA 758 (KLR)", Case Analysis (2023). Criminal Appeal No 62 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/758/eng@2023-06-22

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