Athman v Republic (Criminal Appeal E081 of 2023) [2025] KECA 54 (KLR)

The complainant testified to sexual relations with the appellant on different occasions and became pregnant, which medical evidence corroborated. The appellant was well known to her, and recognition is more reliable than identification of a stranger. The trial court found her credible and relied on the proviso to section 124 of the Evidence Act; the High Court independently re-evaluated and reached the same conclusion. Concurrent findings were therefore not disturbed on second appeal.

Applying Tanzanian and Kenyan authority, the court held that contradictions must be assessed in the totality of the evidence to determine whether they create a doubt as to guilt. Here the complainant consistently identified the appellant once the threat ceased, the trial court found her cogent and believable, and the High Court upheld that finding, rendering the alleged inconsistencies inconsequential.

Because the complaint about the words 'intentional' and 'unlawful' in the charge sheet had never been raised in the trial court or the first appellate court, determining it would exceed the jurisdiction under section 361 of the Criminal Procedure Code. The Court therefore declined to address it, without expressing any view on its merits.

Following the Supreme Court's decision in Republic v Mwangi; ISLA (Amicus Curiae), the Court held that section 361(1) explicitly bars the Court of Appeal from hearing issues relating to matters of fact, including the severity of sentence, except where the High Court has enhanced a sentence. The appellant's 20-year sentence was the statutory minimum prescribed by law, and the complaint fell outside the Court's purview.