Odemba v Republic (Criminal Appeal 126 of 2018) [2024] KECA 1613 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a life sentence for defilement, confirming that minor witness contradictions and missing DNA evidence cannot overturn a conviction.
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 two courts below erred in relying on the prosecution's evidence which was marred with contradictions/ inconsistencies.
- 2.Whether the trial court erred in relying on the testimony of PW1 which was not corroborated.
- 3.Whether the trial court erred in failing to consider the appellant's evidence/ defence.
Key legal issues
#Whether contradictions in prosecution testimony rendered the conviction unsafe
No - the contradictions were minor and did not go to the root of the prosecution's case
The Court adopted the reasoning in Philip Nzaka Watu v Republic that human recollection is not infallible and some discrepancies must be expected. The contradictions identified (dates, whether parties were half or fully naked, the haircut charge) were immaterial and did not dislodge the overwhelming evidence that PW1 was defiled by the appellant.
Whether the uncorroborated testimony of PW1 could found a conviction under Section 124 of the Evidence Act
Section 124 was inapplicable because the appellant was not convicted solely on PW1's evidence; other witnesses and medical evidence corroborated penetration
The proviso to Section 124 applies only where the victim's evidence is the sole evidence. Here PW2, PW3, PW4 and PW5 testified, and medical evidence confirmed penetration. The appellant misapprehended the provision.
Whether the trial court failed to consider the appellant's defence
The defence was considered and rightly dismissed as an afterthought
The trial court's judgment expressly addressed the appellant's claim that PW1 never visited the shop and the alleged grudge with PW1's father. Those issues were never put to prosecution witnesses in cross-examination, and the defence did not dislodge the consistent prosecution evidence.
Whether failure to call Nzula, failure to conduct a DNA test, and proof of the complainant's age vitiated the conviction
None of these points had merit
Section 143 of the Evidence Act removes any requirement of a particular number of witnesses; such offences occur in private without eyewitnesses. DNA is not the sole proof of defilement per A M L v Republic. The complainant's age was proved by her mother's evidence and was never challenged in cross-examination.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, a misapprehension of the evidence, or wrong principles
- Failure to call a particular witness is not fatal to the prosecution's case; no particular number of witnesses is required to prove any fact
- DNA evidence is not the only means of proving a sexual offence; the fact of rape or defilement is proved by evidence
- Minor contradictions in prosecution testimony that do not go to the root of the case do not render a conviction unsafe
- A mother's evidence on the age of her child suffices to prove the complainant's age
Court orders
#- 1.The appellant's appeal is dismissed in its entirety
- 2.The appellant's conviction is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- not stated in judgment
- Jurisdiction invoked
- Second appeal under Section 361(1)(a) of the Criminal Procedure Code - matters of law only
Relief refused
#Setting aside of conviction and sentence
Overwhelming prosecution evidence established defilement beyond reasonable doubt; contradictions were minor; defence was considered and dismissed as an afterthought
Costs
No costs order made 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.
Accordingly, the appellant's appeal is without merit and the same is hereby dismissed in its entirety. It is so ordered.
We therefore find and hold that the appellant's conviction was safe and sound, which conviction we hereby uphold and consequently, dismiss the appellant's appeal on conviction.
Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings.
The fact of rape or defilement is not proved by D.N.A test but by way of evidence
Provided that where in a criminal case involving a sexual ofience the only evidence is that of the alleged victim of the ofience, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reason to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
Issues in the judgment
#The complainant's age is stated as 7 years in the charge and particulars, but the testimony record states she was 8 years old at the time of voire dire examination and when her mother testified
The appellant's age at the time of the alleged offence (2008) versus conviction in 2017 and judgment delay is not addressed other than by apology; the judgment was delivered nearly six years after hearing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odemba v Republic (Criminal Appeal 126 of 2018) [2024] KECA 1613 (KLR)", Case Analysis (2024). Criminal Appeal (as stated in the judgment; Notice of Appeal dated 21st February 2018, Memorandum filed 3rd August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1613/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.