Dsm v Republic
The bottom line
#Kenya's Court of Appeal confirmed that a sexual offence conviction can stand without DNA evidence, dismissing an incest appeal in full.
What this practically means
#Executive summary
#Key legal issues
#Whether absence of DNA evidence vitiates a conviction for incest
No. Section 36 of the Sexual Offences Act is discretionary, not mandatory, and the fact of a sexual offence may be proved by oral evidence of the victim or circumstantial evidence
Section 36 permits, but does not compel, a court to direct taking of samples including DNA. The court adopted its prior decisions holding that medical or DNA evidence is not the only mode of proving a sexual offence; the victim's oral evidence, which the two courts below accepted, sufficed to prove penetration and the relationship within the definition of incest in section 22 of the Act.
Scope of a second appeal on facts
The second appellate court does not re-evaluate evidence and will not disturb concurrent findings of the two lower courts absent demonstration that they were without evidence
By dint of section 361 of the Criminal Procedure Code the court considers only matters of law. Interference is warranted only where the trial court and first appellate court considered matters they ought not to have considered, or were plainly wrong on the evidence as a whole, in which case the omission or commission is treated as a matter of law.
Whether discrepancies in prosecution evidence render the conviction unsafe
No. Accounts of the same event by different witnesses are unlikely to be identical in every particular and minor discrepancies do not displace a conviction
The High Court had interrogated the complaint about contradictions and correctly concluded that witnesses to the same event recall facts differently. The Court of Appeal discerned no misdirection in that approach and saw no basis for interference with the concurrent findings of the two courts below.
Whether failure to consider pre-conviction custody under Section 333(2) of the Criminal Procedure Code warranted allowing the appeal
The grievance failed because the record showed the appellant had been released on bond and warrants issued thereafter were lifted
The appellant's sole complaint before the second appellate court was the omission to consider his pre-conviction custody period. The court examined the record, found the appellant had been granted bond on October 23, 2015 and that warrants subsequently issued were later lifted, and concluded his grievance was misplaced.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law under section 361 of the Criminal Procedure Code and cannot interfere with concurrent findings of fact unless the courts below considered matters they ought not to have considered or were plainly wrong
- DNA evidence is not the only evidence by which commission of a sexual offence may be proved; section 36 of the Sexual Offences Act is not mandatory
Court orders
#- 1.The appeal is dismissed
- On appeal from
- High Court of Kenya at Malindi
- not stated in judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal under Section 361(1) of the Criminal Procedure Code, restricted to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dsm v Republic", Case Analysis (2023). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/818/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.