Bernard Kiprono Koech v Republic

The trial court declared the complainant a vulnerable witness on account of her age and appointed her mother as intermediary, though not through the strict M.M v Republic procedure. The appellant was afforded the opportunity to cross-examine PW1 and declined, stating he understood the proceedings and even pleaded for forgiveness. PW1's evidence was unchallenged and was corroborated by the clinical officer's independent findings. No prejudice occasioned, so the irregularity was curable.

The complainant was declared a vulnerable witness and did not testify. PW1 gave direct evidence of finding the child coming from the appellant's house crying, with dirt resembling sperms on her private parts; PW3 found bruises, a torn hymen with fresh injury and inflammation. The court adopted M.M v Republic, holding that insisting on the child victim's testimony irrespective of age would occasion a serious miscarriage of justice. The appellant's plea for forgiveness further evidenced guilt.

The Court recognised recent Court of Appeal jurisprudence that mandatory sentences under the Sexual Offences Act fetter judicial discretion and affront the separation of powers. Balancing the aggravating circumstance of the victim's tender age of barely 3 years against the appellant's remorse, repeated pleas for forgiveness and an aborted guilty plea, the Court set aside life imprisonment and substituted 35 years to run from the date of conviction.