Felix Kemei Terem v Republic
The bottom line
#A conviction was overturned because the prosecution failed to prove the case beyond a reasonable doubt, specifically regarding identification and medical evidence.
What this practically means
#Executive summary
#Key legal issues
#Standard of review on a first appeal
The court applied the Okeno directions, re-evaluating the evidence afresh and drawing its own conclusions rather than merely scrutinising the trial court's findings.
The court expressly bound itself by the Court of Appeal's directions in Okeno v Republic, which require a first appellate court to weigh conflicting evidence, make its own findings, and only then decide whether the magistrate's findings should stand, while allowing for the trial court's advantage.
Corroboration of a minor's evidence in a sexual offence
The court found the evidence of PW1 and PW2 untruthful and exaggerated, and held that the minor's evidence ought to have been corroborated, e.g. by calling Mama Nelly.
Applying Section 124 of the Evidence Act, the court noted discrepancies between the mother's and minor's accounts and the clinical officer's findings, the absence of injuries consistent with the alleged penile penetration, and the improbability of the act occurring on a busy road at 7.30 am unnoticed.
Identification of the perpetrator
Identification was unsafe: no identification parade was conducted, the arresting officer was not called, and the minor only identified the appellant at the police station under her mother's insistence.
The court found the possibility of mistaken identity high, noting the appellant's alibi that he was cutting maize at Kapkoi, the unclear circumstances of his arrest, and the absence of evidence of any identification parade.
Legal principles established
#- On a first appeal the appellate court must subject the evidence as a whole to a fresh and exhaustive examination and make its own findings, while making allowance for the trial court's advantage of seeing and hearing the witnesses.
- Where the only evidence in a sexual offence is that of the alleged victim, the court may convict only if satisfied of the victim's truthfulness, with reasons recorded; otherwise corroboration by material evidence is required.
Court orders
#- 1.The appeal is allowed
- 2.The Appellant is set free unless lawfully held
- On appeal from
- Magistrates' Court (trial)
- Criminal Case No. 162 of 2018
- Jurisdiction invoked
- First appeal to the High Court from a subordinate court's criminal conviction and sentence (constitutional/statutory appellate jurisdiction over criminal appeals from magistrates' courts)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Felix Kemei Terem v Republic", Case Analysis (2020). Criminal Appeal No. 85 of 2019. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.