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Court of AppealPartially AllowedCriminal Appeal at Mombasa (unnamed number in judgment)· [2023] KECA 1324 (KLR)

LHA v Republic (Criminal Appeal 30 of 2021) [2023] KECA 1324 (KLR)

Court of Appeal of Kenya
10 November 2023
SKS. Gatembu KairuJLJ. LesiitGOG. V. Odunga
3,920 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 upheld a father's incest conviction but cut his life sentence to 30 years because he was never asked to mitigate.

What this practically means

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Executive summary

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The appellant, LHA, was convicted in the Chief Magistrates Court at Malindi of incest contrary to Section 20(1) of the Sexual Offences Act and sexual assault, and sentenced to life imprisonment and ten years respectively, after being found to have penetrated his 11-year-old daughter. His first appeal to the High Court (W. Korir, J.) succeeded only on the second count; the conviction and life sentence on the incest count were upheld, prompting this second appeal on three grounds: failure to conduct voire dire examination, reliance on the child complainant's evidence under Section 124 of the Evidence Act without reasons, and an excessive sentence. The Court of Appeal held that although there is no hard and fast rule on the format of voire dire examination, some substance should be recorded so appellate courts can assess whether the trial court applied its mind; here, some examination was conducted and the mother's eyewitness evidence independently sustained the conviction. The Section 124 ground was rejected as a new issue raised for the first time on second appeal. On sentence, the court found the appellant was never invited to mitigate and that the trial magistrate failed to enumerate the circumstances justifying the maximum penalty; the High Court erred by comparing incest with defilement instead. The life sentence was set aside and substituted with 30 years' imprisonment, computed from the original sentencing date and crediting time spent in custody during trial. The appeal against conviction was dismissed; the appeal succeeded in part, only against sentence. The judgment binds subordinate courts and the High Court on second-appeal scope, voire dire recording, and the standards for interfering with sentence.

Key legal issues

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01

Sufficiency and recording of voire dire examination of a child witness

Holding

Although the voire dire examination was too basic and not recorded as required, some examination was conducted; the format is not prescribed by any hard and fast rule, and failure to record it perfectly does not automatically vitiate the proceedings.

Reasoning

The court surveyed decisions of this Court and the High Court and found divergent approaches on whether both questions and answers, or only answers, need be recorded. It held the format has evolved through case law and endorsed recording at least a substance of the examination so appellate courts can assess whether the child understood the oath and the duty to tell the truth. On the facts, the record showed some examination preceded the complainant's sworn evidence, and the mother's eyewitness account independently proved the offence.

p. 4
02

Compliance with the proviso to Section 124 of the Evidence Act

Holding

The ground was raised for the first time on second appeal, without explanation for the delay, and the court declined to entertain it.

Reasoning

Following Alfayo Gombe Okello v Republic, issues not raised at the earliest opportunity and on which the two courts below expressed no opinion cannot be introduced on a second appeal. The appellant gave no reason for failing to raise the complaint in the High Court, so the first appellate judge could not be faulted for omitting to address it.

p. 5
03

Life sentence imposed without inviting mitigation and without stating circumstances justifying the maximum

Holding

The life sentence was excessive and was set aside and substituted with 30 years' imprisonment, computed from the date of sentence in the lower court and taking custody time into account.

Reasoning

The record showed the appellant was never invited to mitigate; he was only asked about a previous conviction. The sentencing ruling did not enumerate the circumstances justifying the maximum sentence, leaving the appellate courts to speculate. The High Court erred by comparing incest with defilement rather than asking what the trial court considered. The court nonetheless found the appellant undeserving of the minimum sentence given the complainant's age and his abuse of the wife's absence.

p. 7

Legal principles established

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  • On a second appeal the Court of Appeal is confined to matters of law and is bound by concurrent findings of fact of the two courts below.
  • There is no hard and fast rule on the format of voire dire examination, but the trial court should record some substance of it so appellate courts can determine whether the trial court properly applied its mind.
  • The effect of failure to conduct voire dir properly is determined case by case; proceedings will not be vitiated where sufficient independent evidence sustains the charge.
  • A first appellate court cannot be faulted for failing to address issues never placed before it; new issues raised for the first time on second appeal will not be entertained without reason.
  • An appellate court will not interfere with sentence unless it is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Sentence of life imprisonment set aside
  3. 3.Sentence of 30 years' imprisonment substituted, computed from the date of sentence in the lower court
  4. 4.Sentence to take into account the period the appellant spent in custody during the trial between 19th June 2017 and 2nd October 2017

Authorities

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Legislation

  • Sexual Offences ActSection 20(1)
  • Sexual Offences ActSection 11(1)
  • Sexual Offences ActSection 5(1)(a)(i) as read with Section 2
  • Sexual Offences ActSection 8(1) as read with Section 8(2)
  • Evidence ActSection 124
  • Criminal Procedure CodeSection 361(1)(a)
  • Constitution of KenyaArticle 52(2)(p)
  • Constitution of KenyaArticle 27(1)(4)

Cases cited (18)

  • Patrick Kathurima v Republic
    [2015] eKLR
  • Gamaldene Abdi Abdirahaman and Another v Republic
    [2013] eKLR
  • Abdallah Bin Wendo v Republic
    [1953] EACA 166
  • Oponya v Uganda
    1976 EA 752
  • Daniel Kyalo Mwema v R
    [2009] eKLR
  • Mithu v State of Punjab
    Cr. Appeal 745 of 1980
  • Karani v Republic
    [2010] 1 KLR 73
  • Njoroge v Republic
    [1982] KLR 388
  • Maripett Loonkonok v Republic
    [2016] eKLR
  • James Mwangi Mureithi v Republic
    Criminal Appeal No. 10 of 2014 (UR)
  • Johnson Muiruri v Republic
    [1983] KLR 447
  • DWM v Republic
    [2016] eKLR
  • DWN v Republic
    [2016] eKLR
  • Alfayo Gombe Okello v Republic
    [2010] eKLR, Criminal Appeal No. 203 of 2009
  • Bernard Kimani Gacheru v R
    [2002] eKLR
  • OGOLA s/o OWOURA v REGINUM
    (1954) 21 270
  • James v R
    (1950) 18 E.A.C.A 147
  • R. V Sher shewky
    (1912) C.C.A. 28 T.L.R. 364
On appeal from
High Court of Kenya at Malindi (W. Korir, J., sitting as first appellate court)
Jurisdiction invoked
Second appeal to the Court of Appeal under Section 361(1)(a) of the Criminal Procedure Code, 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, "LHA v Republic (Criminal Appeal 30 of 2021) [2023] KECA 1324 (KLR)", Case Analysis (2023). Criminal Appeal at Mombasa (unnamed number in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1324/eng@2023-11-10

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