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Court of AppealDismissedCriminal Appeal No. 79 of 2014

Charles Enose Makokha v Republic [2016] KECA 495 (KLR)

Court of Appeal of Kenya
27 May 2016
1,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a defilement conviction appeal, confirming that second appeals only examine legal errors, not the facts already settled by lower courts.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal at Kisumu (Maraga, Musinga and Gatembu Kairu, JJ.A) against the dismissal by the High Court (Chemitei, J) of the appellant's first appeal against conviction for defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, for which the trial Magistrate's Court at Homa Bay sentenced him to 15 years' imprisonment. The appellant, who was unrepresented, argued that penetration and the age of the complainant were not established and that he was not positively identified. The Court reiterated that under Section 361(1) of the Criminal Procedure Code its mandate on a second appeal is restricted to questions of law, and that it must pay homage to concurrent findings of fact of the two courts below unless such findings are based on no evidence or a perversion of the evidence. The Court found concurrent findings that the appellant, an Administration Police officer, took the 17-year-old complainant to his house at the camp and defiled her twice, findings supported by consistent, unshaken testimony of PW1, PW2 and PW3 and by medical evidence of fresh lacerations establishing penetration. All the necessary ingredients of the offence, including age and penetration, were held proved. The appeal was dismissed in its entirety on 27th May 2016.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the offence of defilement was proved to the required standard, including the ingredients of penetration and the age of the complainant
  2. 2.Whether the appellant was positively identified as the perpetrator of the offence
  3. 3.Whether, on a second appeal restricted to questions of law, the Court may interfere with the concurrent findings of fact of the two courts below

Key legal issues

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01

Scope of a second appeal under Section 361(1) of the Criminal Procedure Code

Holding

The Court is confined to questions of law and must pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence or a perversion of the evidence.

Reasoning

Relying on M'Riungu v R and Adan Muraguri Mungara v R, the Court held that where a right of appeal is confined to questions of law, an appellate court must accept findings of fact of the lower courts and resist treating findings of fact as holdings of law. Interference is justified only where the decision is bad in law, that is, where no reasonable tribunal properly directing itself would have reached those findings on the totality of the evidence.

p. 3
02

Sufficiency of proof of the ingredients of defilement (penetration and age)

Holding

The prosecution established the complainant's age of 17 years and penetration through the complainant's evidence, the P3 form and treatment notes, and the clinical officer's evidence of fresh lacerations.

Reasoning

The complainant stated she was born in 1993, making her 17 at the time of the offence. The clinical officer who examined her on 13/12/2010 recorded this in the P3 form and treatment notes and found fresh genital lacerations on the basis of which he concluded there had been forcible sexual intercourse and penetration. The Court found all the necessary ingredients of the offence proved and no basis to disturb the concurrent findings below.

p. 3
03

Identification of the appellant as the perpetrator

Holding

The testimony of PW1, PW2 and PW3 remained consistent and unshaken under lengthy cross-examination, supporting the concurrent findings that the appellant committed the offence.

Reasoning

The only material difference between the appellant's account and that of the witnesses was his claim that he locked them up and went to sleep. PW1, PW2 and PW3 each gave consistent accounts of the arrest, escort to the camp and the events in the appellant's house. The Court found the decisions of the two lower courts well founded and supported by the evidence and bad in law they were not.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal's mandate is restricted to questions of law and it will not interfere with concurrent findings of fact of the lower courts unless they are based on no evidence or a perversion of the evidence.
  • An appellate court confined to questions of law must accept the findings of fact of the lower courts and may only interfere where no reasonable tribunal could have reached that conclusion on the evidence.

Court orders

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  1. 1.The appeal fails in its entirety and is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisumu
HCCRA No. 84 of 2012
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal confined to questions of law)

Relief refused

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The appellant's prayer to have the conviction for defilement quashed on grounds that penetration, age and identification were not established

The two courts below made concurrent findings of fact supported by the evidence; all the necessary ingredients of the offence were proved

p. 3

Costs

No costs order recorded in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

By reason of Section 361(1) of the Criminal Procedure Code, our mandate on a second appeal is restricted to questions of law.
p. 2Scope of second appeal
Pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings.
p. 3Concurrent findings of fact
The result is that the appeal fails in its entirety and is hereby dismissed. Orders accordingly.
p. 3Final orders

Issues in the judgment

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minor

The judgment states it was 'Dated and delivered at Kisumu this 27th day of May, 2016' while the case number is 'Criminal Appeal No. 79 OF 2014'; the dateOfJudgment has been taken from the delivery date clause. No contradiction found between the date and any other passage; the appeal record also dates the High Court judgment as 20th January 2014 consistently.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Enose Makokha v Republic [2016] KECA 495 (KLR)", Case Analysis (2016). Criminal Appeal No. 79 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/495/eng@2016-05-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.