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Court of AppealDismissedCriminal Appeal (not expressly numbered in the judgment; arises from Malindi High Court appeal against Kilifi Senior Principal Magistrate's Court Criminal Case No. 419 of 2016)· [2024] KECA 113 (KLR)

Salim v Republic (Criminal Appeal 66 of 2020) [2024] KECA 113 (KLR)

Court of Appeal of Kenya
9 February 2024
SKS. Gatembu KairuJLJ. LesiitGOG.V. Odunga
3,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal dismissed a defilement appeal, confirming it will not revisit facts or hear new arguments raised for the first time on a second appeal.

What this practically means

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Executive summary

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This is a second appeal by Salim Katana Salim against his conviction for defilement of a 16-year-old girl contrary to section 8(1) of the Sexual Offences Act, and a 15-year sentence, both upheld by the High Court at Malindi (R. Nyakundi, J.). The complainant, PW1, was kidnapped by the Appellant, her madrassa teacher, and defiled overnight after he threatened to curse her. Before the Court of Appeal at Mombasa, the Appellant, appearing in person, raised grounds concerning the clinic card as proof of age, contradictions in the complainant's evidence, absence of DNA testing, absence of the investigating officer, and the constitutionality of the mandatory minimum sentence. The State, through Senior Public Prosecution Counsel, maintained the conviction. The Court, comprising Kairu, Lesiit and Odunga JJA in a single unanimous judgment, reaffirmed that on a second appeal its jurisdiction is confined to matters of law and that it will not disturb concurrent findings of fact unless based on no evidence. It noted that grounds 1, 2 and 4 were raised for the first time on second appeal and declined to entertain them, following Alfayo Gombe Okello. The alibi ground was deemed abandoned for want of submissions; in any event the alibi covered only daytime while the offence occurred overnight. The Court deferred to the concurrent findings that age was proved by the Child Health Card, penetration by the P3 and PRC medical evidence, and identification by recognition. The appeal was dismissed in its entirety, the conviction and sentence remaining undisturbed. No costs order was recorded.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction on a second appeal

Holding

Jurisdiction is limited to matters of law under section 361(1)(a) CPC; concurrent findings of fact are not to be disturbed unless based on no evidence.

Reasoning

The Court, citing its own prior decisions, held that on a second appeal it must confine itself to points of law and defer to the factual findings of the trial court and High Court. The test is whether there was any evidence on which the trial court could find as it did. Having found medical and eyewitness evidence supporting the conviction, it declined to disturb the findings.

p. 3
02

Whether new grounds raised for the first time on second appeal could be entertained

Holding

Grounds 1, 2 and 4 were raised for the first time in the second appeal and were accordingly not entertained, the courts below having expressed no opinion on them.

Reasoning

The Court noted that the clinic card, DNA and constitutionality of the mandatory minimum sentence grounds had not been urged before the High Court. Following Alfayo Gombe Okello as approved in John Kariuki Gikonyo, it held that issues which could and should have been raised at the earliest opportunity cannot be introduced for the first time on a second appeal.

p. 4
03

Whether the prosecution proved age, penetration and identification

Holding

The prosecution proved all ingredients: age by the Child Health Card, penetration by medical evidence, and identification through PW1's recognition of the Appellant as her madrassa teacher.

Reasoning

The Court deferred to the concurrent findings of the two courts below. The P3 and PRC forms established that the hymen was not intact with whitish discharge, supporting penetration. The complainant knew the Appellant as her madrassa teacher, and the alibi covering only daytime could not exonerate him for an overnight offence.

04

Whether the alibi defence was adequately considered

Holding

The ground was deemed abandoned as the Appellant made no submissions on it; in any event the alibi did not exonerate him because it covered the daytime whereas the offence was committed overnight.

Reasoning

The Court observed that the Appellant's written submissions made no mention of the alibi defence and it was therefore considered abandoned. On the merits, the High Court had properly considered the alibi and concluded it did not dislodge the prosecution evidence, a finding the Court endorsed.

p. 6

Legal principles established

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  • A second appeal is confined to points of law and the Court of Appeal will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
  • New issues raised for the first time on a second appeal, where the two courts below gave no opinion on them, will not be entertained.
  • A Child Health Card is a document containing prima facie evidence of a complainant's age for purposes of proving age in defilement cases.

Court orders

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  1. 1.The appeal was dismissed in its entirety
  2. 2.The conviction by the trial court, as upheld by the High Court, and the sentence of 15 years imprisonment were left undisturbed

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006section 8(1) as read with section 8(2)
  • Sexual Offences Act No. 3 of 2006section 11(1)
  • Sexual Offences Act No. 3 of 2006section 2 (definition of penetration)
  • Sexual Offences Act No. 3 of 2006section 36(1)
  • Sexual Offences Act No. 3 of 2006section 8(4)
  • Criminal Procedure Code (Cap 75)section 199
  • Criminal Procedure Code (Cap 75)section 361(1)(a)
  • Evidence Act (Cap 80)sections 64 and 66
  • Evidence Act (Cap 80)section 163(1)(e)
  • Evidence Act (Cap 80)section 124
  • Constitution of Kenya, 2010Article 50(2)(m)
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 50(2)

Cases cited (16)

  • Peter Osanya vs. Republic
    [2016] eKLR
  • Chemogong V. Republic
    [1984] KLR 611
  • Ogeto V Republic
    [2004] KLR 14
  • Koingo V Republic
    [1982] KLR 213
  • Reuben Karasi S/O Karanja V. R.
    [1956] 17 E.A.C.A 146
  • John Kariuki Gikonyo v Republic
    [2019] eKLR
  • Alfayo Gombe Okello Republic
    [2010] eKLR Criminal Appeal No. 203 of 2009
  • Bukenya .vs. Uganda
    (1972) E.A.C.A 549
  • Stamulus Opiyo .vs. Republic
    Criminal Appeal Number 711 of 2003
  • Moses Nato Raphael vs Republic
    (2015) eKLR
  • Twehangane Alfred vs Uganda
    Cr.App No.139 of 2001 (2003) UGCA
  • Evans Wamalwa Simiyu vs Republic
    [2016] eKLR
  • AML vs Republic
    [2012] eKLR
  • Robert Mutungi Mumbi vs Republic
    MLD CA CRA No.52 of 2014
  • Mark Oiruru Mose vs Republic
    (2013) eKLR
  • Erick Onyango Ondeng v. R
    (2014) eKLR
On appeal from
High Court of Kenya at Malindi
Jurisdiction invoked
Second appeal under section 361(1)(a) of the Criminal Procedure Code, limiting the Court of Appeal 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, "Salim v Republic (Criminal Appeal 66 of 2020) [2024] KECA 113 (KLR)", Case Analysis (2024). Criminal Appeal (not expressly numbered in the judgment; arises from Malindi High Court appeal against Kilifi Senior Principal Magistrate's Court Criminal Case No. 419 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/113/eng@2024-02-09

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