Charles & another v Republic
The bottom line
#Kenya's Court of Appeal upheld two 20-year defilement sentences, confirming that minimum sentences under the Sexual Offences Act must be served.
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 prosecution proved the age of the complainant, and in particular whether the two lower courts were entitled to rely on the birth certificate as proof of age
- 2.Whether penetration was proved in view of the 'wrong' P3 form attached to the record of appeal
- 3.Whether charging the appellants with serial defilement as opposed to gang rape was an error which prejudiced the appellants
- 4.Whether the mandatory nature of the minimum sentence was unconstitutional, and whether the sentence was harsh and severe in the circumstances
Key legal issues
#Proof of complainant's age despite unproduced birth certificate
The failure to produce the birth certificate was an error, but age was proved beyond reasonable doubt by the sworn unchallenged testimony of the complainant, her mother, and the medical evidence.
The birth certificate was only marked, never produced, so could not be relied upon. However, age need not be proved by a certificate alone. The 14-year-old complainant stated her age under oath without cross-examination; her mother confirmed it; the medical expert recorded 14 years. This mutual corroboration independently established age.
The 'wrong' P3 form (of one Job Ombuna) in the record
The complaint failed: it was raised for the first time on second appeal, and the original file confirms the complainant's correct P3 form was on file and furnished to the appellant at trial.
The court found the misplaced P3 form was an inadvertent error in compiling the record of appeal, suggesting the correct form was before the first appellate court. Reliance on it was a mischievous attempt to exploit a clerical mistake and did not undermine proof of penetration.
Charging serial defilement instead of gang rape under section 10
Not an error: the ground was unpreserved, and on the facts each appellant defiled the complainant alone and in the absence of the other, so gang defilement ingredients were not established.
The ground was not raised in the High Court and thus not preserved. Substantively, section 10 requires joint action; here the evidence showed each appellant penetrated the complainant sequentially and separately, which constitutes serial defilement, not gang defilement.
Constitutionality of the minimum sentence and whether twenty years was harsh
The Supreme Court's decision in Republic v Joshua Gichuki Mwangi, binding under stare decisis, forecloses any discretion to go below the statutory minimum; the sentence of twenty years stands.
The court accepted the appellants' extenuating circumstances but held itself bound by the Supreme Court's July 2024 holding that minimum sentences in the Sexual Offences Act are constitutional and set the floor for sentencing. Interference was therefore impermissible whatever the court's own views.
Legal principles established
#- On a second appeal, the Court of Appeal will not interfere with concurrent findings of fact by the two courts below unless based on no evidence, misapprehension of evidence, or wrong principles.
- A document marked for production but never produced in evidence does not become evidence on which a court can base its decision.
- Age of a defilement victim may be proved by birth certificate, baptism card, oral evidence of the child, parents, guardian or medical evidence, provided the evidence is credible and reliable.
- Following Republic v Joshua Gichuki Mwangi, the minimum sentences in the Sexual Offences Act are constitutional and trial courts have no discretion to go below the statutory minimum.
- A ground of appeal not first raised in the High Court is not preserved for the second appellate court's jurisdiction.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence of twenty years imprisonment imposed on each appellant by the courts below are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyamira
- HCCRA No. 48 & 49 of 2017
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal, matters of law only)
Relief refused
#1st appellant's challenge to conviction and sentence
Age proved by mutual corroboration of oral, parental and medical evidence; P3 complaint was mischievous; charge correctly framed; sentence bound by Supreme Court precedent
2nd appellant's challenge to sentence and request for discretion below statutory minimum
Supreme Court in Joshua Gichuki Mwangi held mandatory minimum sentences under the Sexual Offences Act are constitutional; binding on the Court
Costs
No costs order appears in the judgment; the judgment ends with 'Orders accordingly.'
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.
It is trite that a document that has been marked for production but not produced in evidence does not become evidence upon which a court can base its decision.
This mutual corroboration established beyond reasonable doubt, without the need to rely on the un-produced birth certificate, that the complainant was, indeed, fourteen years old.
They did not jointly defile the complainant; rather, they serially did so.
This decision is binding on us under the doctrine of stare decisis.
The upshot is that the appeal herein must be dismissed in its entirety, and we hereby do so.
Issues in the judgment
#Court convicts under section 8(2) though charge was section 8(1) as read with 8(3).
Court faults reliance on unproduced birth certificate yet upholds the High Court judgment that relied on it.
Complainant testified to prior consensual intercourse with both appellants; court did not address its evidentiary effect.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Philip Momanyi Omwenga v Republic25 Sept 2026followed
Cite this brief
#Cite this brief
Caselaw, "Charles & another v Republic", Case Analysis (2024). Criminal Appeal 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1902/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.