Enock Kirui Kiprono v Republic

The appellant argued that contradictions in the P3 form and charge sheet left age unproved absent medical evidence. The Court held that the mother produced a birth certificate showing the complainant was born on 26th June 2010, making her barely five at the time of the incident. With a birth certificate on record, both courts below properly found age proved, and the second appeal court could not disturb that concurrent finding.

PW1 gave a direct account of the defilement and PW4's medical evidence showed a torn hymen, bruised vaginal walls and smelly discharge with pus and epithelial cells. The trial of DW2, who sought to controvert PW4, carried no weight since he was neither doctor nor clinical officer and did not prepare the P3 or PRC forms. The Court was satisfied, like the courts below, that defilement was proved.

The burden of proving the falsity of an alibi lies on the prosecution, but it may be discharged either by rebuttal evidence under section 309 of the Criminal Procedure Code or by the court weighing the alibi against the totality of the prosecution case. Here the prosecution left it to the court, and PW1 and PW2 placed the appellant at the scene. His defence, raised late, raised no reasonable doubt.

The complaints about the investigating officer, the doctor who examined the complainant, and the appellant's advocate's absence during PW4's evidence were not raised in the petition of appeal or submissions before the High Court. Since an appeal lies only from a decision on issues actually determined below, the Court was precluded from addressing them, applying Peter Kihia Mwaniki.

Following the Supreme Court's decision in Republic v Mwangi (ISLA), the Court held that Muruatetu dealt only with the mandatory death sentence for murder and did not touch minimum sentences. The sentence imposed was lawful as long as section 8 remains valid, and in any event severity of sentence is a matter of fact outside the jurisdiction of a second appeal.