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Court of AppealDismissedSecond Appeal from Sexual Offence Case No. 3 of 2019 (Shanzu, Mombasa)· [2024] KECA 673 (KLR)

ADG v Republic (Criminal Appeal 125 of 2022) [2024] KECA 673 (KLR)

Court of Appeal
25 January 2024
3,340 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 confirmed a 20-year defilement sentence, holding second appeals can only challenge legal errors, not facts or sentence severity.

What this practically means

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Executive summary

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The appellant, ADG, was convicted by the Magistrates Court at Shanzu, Mombasa, of defilement under Section 8(1) read with Section 8(4) of the Sexual Offences Act and sentenced to 20 years' imprisonment for repeatedly penetrating his stepdaughter, STM, then a child aged 12, between 2016 and 2018 in Kilifi County. The High Court (Mativo, J.) dismissed the first appeal, upholding both conviction and sentence. On second appeal before the Court of Appeal (Kairu, Lesiit and Odunga, JJ.A), the appellant raised two condensed complaints: that inadmissible evidence formed the basis of the guilt finding, and that Section 124 of the Evidence Act was wrongly invoked. He argued that a conviction must rest either on the main corroboration rule in Section 124 or on its proviso, not both, and that the P3 form was tampered with and the medical evidence inadmissible. The Court held its jurisdiction limited to matters of law under Section 361(1)(a) of the Criminal Procedure Code. It held that the proviso to Section 124 is an exception to the corroboration rule and that the two are not mutually exclusive; a conviction supported by both is more reassuring. The complainant's age was proved by birth certificate, identity was undisputed, and her credible testimony was corroborated by medical evidence. The P3 and PRC forms, produced by a witness familiar with the maker's handwriting and admitted without objection, were admissible under Section 77 of the Evidence Act. Sentence severity was held to be a matter of fact outside second-appeal scope. The appeal was dismissed.

Key legal issues

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01

Scope of a second appeal

Holding

The Court's mandate on a second appeal is limited to matters of law under Section 361(1)(a) of the Criminal Procedure Code; it will not disturb concurrent findings of fact unless based on no evidence.

Reasoning

Relying on Section 361(1)(a) and prior decisions including Koingo v Republic, the Court framed the sole question as whether there was evidence on which the courts below convicted. The test on second appeal is whether there was any evidence on which the trial court could find as it did, per Reuben Karasi s/o Karanja v R.

p. 4
02

Relationship between Section 124 of the Evidence Act and its proviso

Holding

The proviso is an exception to the corroboration rule; the two are not mutually exclusive and a conviction may rest on both corroborated victim evidence and the proviso's principles.

Reasoning

The appellant argued that a conviction must be based either on the main provision or the proviso, not both. The Court rejected this, holding that reliance on corroborating evidence in addition to credible victim testimony makes the conviction more reassuring, and agreed with the High Court that the proviso applies where the victim is the only witness, with reasons recorded.

p. 6
03

Admissibility of the medical evidence (P3 and PRC forms)

Holding

The medical documents were admissible; they were produced by PW3 familiar with the maker's handwriting, and no objection was raised at trial by the appellant's counsel.

Reasoning

PW3 produced both forms, stating he had worked with AM (the PRC form's maker) and was familiar with her handwriting, and that he filled the P3 form. The Court held that absent objection from represented counsel, Section 77 of the Evidence Act gave no basis for the trial court to disregard the documents.

p. 6
04

Credibility of the complainant and proof of the ingredients of defilement

Holding

Age was proved by birth certificate, identity was not in issue, and penetration was established by the complainant's credible testimony; the trial court's credibility finding could not be disturbed.

Reasoning

The Court found no contest on age or identity. The complainant gave a detailed, graphic account of sustained abuse. The trial magistrate took caution under Section 124, found her candid, and applied Mohammed v Republic on corroboration not being required where a child of tender years is truthful. Such a finding is only assailable if no reasonable court could make it.

p. 5
05

Sentence on second appeal

Holding

Severity of sentence is a matter of fact and outside the scope of a second appeal under Section 361(1)(a) of the Criminal Procedure Code.

Reasoning

The Court declined to interfere with the 20-year sentence, holding that sentence severity is a factual question, whereas a second appeal lies only on matters of law.

p. 6

Legal principles established

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  • A second appeal is confined to points of law and the Court will not interfere with concurrent findings of fact unless they are based on no evidence
  • The general rule in Section 124 of the Evidence Act (corroboration) and its proviso (sole victim testimony) are not mutually exclusive; a conviction may be based on both
  • Medical documents produced by a witness familiar with the maker's handwriting, without objection by accused's counsel at trial, are properly admissible under Section 77 of the Evidence Act
  • A trial court's finding on the credibility of a complainant can only be disturbed on appeal if no reasonable court could make such a finding, or the finding is clearly wrong

Court orders

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  1. 1.The appeal fails and is dismissed

Authorities

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Legislation

  • Sexual Offences ActSection 8(1) read with Section 8(4)
  • Sexual Offences ActSection 8(3)
  • Evidence ActSection 124 (including proviso)
  • Evidence ActSection 77
  • Criminal Procedure CodeSection 361(1)(a)
  • Oaths and Statutory Declaration ActSection 19

Cases cited (11)

  • Joseph Chirchir Kabutie vs. Republic
    [2019]
  • Pandya vs Republic
    [1957] E.A
  • Joshua Karianjahi Waiganjo vs. Republic
    [2017] eKLR
  • PWN vs. Republic
    [2017] eKLR
  • 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
  • Mohammed vs. Republic
    [2006] 2 KLR 138
  • Republic vs. Francis Otieno Oyier
    [1985] eKLR
On appeal from
High Court of Kenya at Mombasa
Sexual Offence Case No. 3 of 2019 (Shanzu Magistrates Court) on first appeal
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code - second appeal 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, "ADG v Republic (Criminal Appeal 125 of 2022) [2024] KECA 673 (KLR)", Case Analysis (2024). Second Appeal from Sexual Offence Case No. 3 of 2019 (Shanzu, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/673/eng@2024-01-25

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