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Court of AppealDismissedCriminal Appeal No E004 of 2023· [2024] KECA 1757 (KLR)

Gona v Republic (Criminal Appeal E004 of 2023) [2024] KECA 1757 (KLR)

Court of Appeal of Kenya
6 December 2024
ASAsike-MakhandiaAMA. K. Murgor
2,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a defilement appeal, confirming second appeals can only question law, not facts or sentence.

What this practically means

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Executive summary

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This was a second appeal by Charo Kenga Gona against his conviction for defilement of a nine-year-old girl and sentence of life imprisonment, imposed by the Senior Principal Magistrate's Court at Kilifi and upheld by the High Court at Malindi (Nyakundi, J.) on 30th December 2021. The Court of Appeal, delivering judgment at Nairobi on 6th December 2024 under rule 34(3) of its Rules as Odunga, JA declined to sign, was guided by section 361 of the Criminal Procedure Code, confining itself to matters of law and treating itself as bound by concurrent findings of fact. Relying on the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, it held that a second appeal on the harshness or excessiveness of sentence falls outside its jurisdiction, describing the sentence ground as a no-go zone. On conviction, the Court found the ingredients of defilement proved: age was proved by the birth certificate; penetration by the complainant's testimony and medical evidence of a ruptured hymen; and identification by recognition, the witnesses knowing the appellant by name. The alibi defence, which imposed no burden of proof on the appellant, was displaced by strong evidence placing him at the scene. The alleged bad blood with the victim's family was rejected as raised for the first time on appeal. The appeal against conviction was dismissed. Notably, the judgment contains no formal disposition orders or costs order.

Key legal issues

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01

Scope of second appeal under section 361 Criminal Procedure Code

Holding

The Court is confined to matters of law and bound by concurrent findings of fact unless shown to be based on no evidence.

Reasoning

Section 361 restricts a second appeal to questions of law. The Court may interfere with findings of fact only where the lower courts considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong on the evidence as a whole. Concurrent findings stand unless shown to be based on no evidence.

p. 1
02

Jurisdiction over sentence on second appeal

Holding

An appeal that a sentence is harsh and excessive falls outside the Court of Appeal's jurisdiction on a second appeal; sentencing parameters are set by Parliament and a statutory sentence can only be struck down upon a declaration of unconstitutionality.

Reasoning

Following the Supreme Court's decision in Republic v Joshua Gichuki Mwangi, sentencing is an exercise of judicial discretion within statutory parameters set by Parliament. Striking down a statutory sentence requires sound legal principles, public interest considerations and, ordinarily, a declaration of unconstitutionality; it cannot rest on sympathy or sentiment. A sentence-based ground on second appeal is therefore a no-go zone.

p. 2
03

Alibi defence and recognition of the assailant

Holding

The alibi raised no reasonable doubt because two credible witnesses who knew the appellant well placed him at the scene; recognition is more reliable than identification of a stranger.

Reasoning

An alibi imposes no burden of proof on the accused and need only raise a reasonable doubt. However, DKK and AK knew the appellant personally, referred to him by name, and had no reason to place him at the posho mill. Recognition based on personal knowledge displaced the alibi.

p. 4
04

Proof of the ingredients of defilement

Holding

Penetration, age and identification were all proved: penetration by the complainant's evidence and medical evidence, age by the birth certificate, and identification by recognition.

Reasoning

The complainant testified she was penetrated and bled from her private parts; medical evidence confirmed a ruptured hymen evidencing defilement. PW4 produced the birth certificate proving the victim was nine years old. The courts below made concurrent findings on all ingredients which this Court had no reason to fault.

p. 4

Legal principles established

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  • On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal considers only matters of law and is bound by concurrent findings of fact of the two courts below.
  • The Court of Appeal on a second appeal has no jurisdiction to entertain an appeal that a sentence is harsh and excessive; striking down a statutory sentence requires a declaration of unconstitutionality based on sound principles.
  • An accused who raises an alibi bears no burden of proving it; it suffices if it introduces a reasonable doubt, but it fails where credible evidence places the accused at the scene.
  • Recognition of an assailant is more satisfactory, assuring and reliable than identification of a stranger.

Court orders

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  1. 1.Appeal against conviction dismissed
  2. 2.Appeal on sentence held to be outside the court's jurisdiction on second appeal

Authorities

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Legislation

  • Criminal Procedure Codesection 361
  • Sexual Offences Actsection 8(1)
  • Sexual Offences Actsection 2
  • Court of Appeal Rules, 2022rule 34(3)

Cases cited (4)

  • Karani v Republic
    [2010] 1 KLR 73
  • Njoroge v Republic
    [1982] KLR 388
  • Republic v Joshua Gichuki Mwangi
    Petition No. E018 of 2023 (UR)
  • Anjononi & 2 Others v Republic
    [1980] eKLR
On appeal from
High Court of Kenya at Malindi
Criminal Appeal No. 8B of 2017
Jurisdiction invoked
Section 361 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, "Gona v Republic (Criminal Appeal E004 of 2023) [2024] KECA 1757 (KLR)", Case Analysis (2024). Criminal Appeal No E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1757/eng@2024-12-06

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