Sao v Republic (Criminal Appeal E011 of 2023) [2024] KECA 564 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a defilement appeal, confirming that second appeals can only question legal errors, not re-argue facts or add new grounds late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal on second appeal can revisit the concurrent findings of fact by the two courts below on the complainant's age, penetration and identification of the appellant
- 2.Whether the issue of the complainant's understanding of the duty to tell the truth, not raised as a ground of appeal in the memorandum of appeal, could be argued on submissions
- 3.Whether the evidence established the ingredients of defilement beyond reasonable doubt
- 4.Whether the sentence of 18 years' imprisonment was harsh, excessive or illegally imposed
Key legal issues
#Scope of a second appeal under section 361(1)(a) of the Criminal Procedure Code
The Court's mandate is limited to issues of law; it may interfere with concurrent factual findings only if the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.
Relying on Karani v R, the Court restated the settled principle that a second appellate court is enjoined by section 361 of the Criminal Procedure Code to consider only matters of law. Interference with factual findings is permitted only where the trial court and first appellate court considered matters they ought not to have, omitted matters they should have considered, or, viewing the evidence as a whole, were plainly wrong. Such omissions or commissions are then treated as matters of law.
Arguing grounds not contained in the memorandum of appeal
A party is bound by the grounds in the memorandum of appeal and may not raise new grounds through written submissions without leave; the Court declined to entertain the submission on the complainant's understanding of the duty to tell the truth.
The Court noted that the appellant's written submissions deviated substantially from the grounds of appeal, contrary to rule 74(a) of the Court of Appeal Rules. Applying Alfayo Gombe Okello v Republic, the issue concerning the examination testing the complainant's understanding of the responsibility of telling the truth was not raised at trial or as a ground of appeal, and no reason was given for the earlier failure, so it could not be entertained for the first time on second appeal.
Proof of the complainant's age and penetration
The concurrent findings that the complainant was aged 14 and that penetration was proved were supported by oral and documentary evidence, including the age assessment report and medical evidence, and the Court was bound by them.
The two courts below found, on the complainant's testimony, PW3's corroboration and the age assessment report, that the complainant was 14 years old; the contradiction in treatment notes showing 13 years was immaterial as both ages fall within section 8(1)(3). Both the complainant's evidence and the medical evidence (broken/missing hymen) established penetration, which the prosecution need prove only partially or fully. These were findings of fact supported by evidence, so the Court paid homage to them.
Interference with sentence on second appeal
The 18-year sentence was neither illegal nor manifestly excessive; being lesser than the statutory recommendation and following consideration of mitigation, it would not be disturbed.
Citing Robert Mutungi Muumbi v Republic and Bernard Kimani Gacheru v Republic, the Court held that severity of sentence is a question of fact and that it may interfere only where the courts below acted on a wrong principle or overlooked material factors. Here the trial magistrate considered mitigation and imposed a term below the statutory minimum recommendation; the Court found the sentence lenient and found no basis for interference.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to questions of law and is bound by concurrent findings of fact of the two courts below unless those findings are based on no evidence, a perversion of the evidence, or no reasonable tribunal properly directing itself would have reached them.
- An appellant may not, without leave, argue grounds of appeal not specified in the memorandum of appeal, and submissions must be restricted to the grounds expressly set out therein.
- An appellate court will not interfere with the trial court's discretion on sentence unless the sentence is manifestly excessive, the trial court overlooked a material factor, took into account wrong material, or acted on a wrong principle.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- not stated in judgment (appeal against conviction and sentence in SO No. 40 of 2017, Malindi Chief Magistrate's Court)
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code - second appeal limited to matters of law
Relief refused
#Setting aside of the conviction and 18-year sentence
The concurrent findings of fact by the two courts below on age, penetration and identification were supported by evidence, and the sentence was neither illegal nor manifestly excessive - indeed lenient
Costs
No order as to costs is recorded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
On a second appeal, we are only concerned with points of law and consider ourselves bound by the concurrent findings of fact arrived at in the courts below, unless shown to be based on no evidence.
An appellant must restrict his submissions to the grounds expressly set out in the memorandum of appeal or the supplementary memorandum of appeal.
As this court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by two courts below, unless such findings are based on no evidence at all, or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings.
We have ourselves considered the sentence imposed on the appellant and we find nothing to persuade us that it was illegal. To the contrary, as the learned Judge found, the sentence was very lenient in the circumstances. In the premises, this appeal fails and is dismissed in its entirety
It is so ordered.
Issues in the judgment
#The appellant's charge is stated as 'Defilement Contrary to Section 8(1)(3) of the Sexual Offences Act', an apparently erroneous rendering of section 8(1) as read with section 8(3) of the Act
The judgment does not give a separate case number for the second appeal, nor does it name the High Court judge whose decision was appealed from
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sao v Republic (Criminal Appeal E011 of 2023) [2024] KECA 564 (KLR)", Case Analysis (2024). Criminal Appeal (not separately numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/564/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.