Eric Mwangi Waithaka v Republic

The Court reconsidered the totality of the evidence. The testimony of the complainant, corroborated by PW3 and PW4 who caught the appellant in the act, and the P3 form produced by PW6, established anal penetration. The two courts below made concurrent findings of fact which a second appeal court cannot disturb absent demonstrated error of principle or absence of evidence.

Relying on William Oongo Arunda vs. Republic, the operative trigger for state-funded representation is substantial injustice arising from the complexity or seriousness of the charge or the accused's incapacity. The appellant participated fully in the trial, was represented by Mr. Mongeri when PW1 and PW2 testified, and never raised the issue in the trial court or the High Court, precluding him from raising it on second appeal.

The trial court ordered age assessments: August 2014 approximated the appellant at 17 years, but an April 2017 assessment found him above 18. The appellant produced no document proving his age and did not contest the issue at trial. A second appeal court will not interfere with concurrent findings of fact on age; the burden of proving minority rested on the appellant and the issue cannot be raised casually on appeal.

The Court noted that the appellant did not specifically complain of the constitutionality of the life sentence before the High Court, so the issue was not placed before that court for determination. However, constitutionality of a sentence being a point of law, this Court could interrogate it. On the facts, the complainant's vulnerability and the mandatory minimum prescribed by section 8(2) sustained the life sentence.