Evans Opiyo Esau v Republic

The Court adopted the persuasive reasoning in Paul Otieno Okello v Republic that age is ideally proved by documents such as a birth certificate, birth notification, medical, religious or school documents, but that where such documents are unavailable, the court may rely on observation of the victim or oral admissible evidence. Applying that standard, the medical evidence and the post rape care form sufficiently established that the complainant was a child below twelve years for sentencing under the Sexual Offences Act.

The offence occurred at about 1.00 pm in broad daylight; the complainant knew the appellant by recognition and PW3 saw the appellant in the act. On a second appeal, the Court pays homage to concurrent findings of fact unless based on no evidence or a perversion of evidence. The trial court had the advantage of observing the demeanour of the child witnesses, and the Court had no hesitation in affirming their credibility.

The Supreme Court in Muruatetu held that a mandatory sentence fails to conform to the fair trial tenets under Article 25 of the Constitution. This Court, in Christopher Ochieng and Jared Koita Injiri, applied that reasoning to the minimum mandatory sentences under the Sexual Offences Act. Persuaded by those decisions, the Court found the life sentence imposed by the trial magistrate and upheld by the High Court could not stand, and, considering mitigation and aggravating factors including the misleading probation report, substituted a thirty-year term.