Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a teacher's defilement convictions because the trial court convicted on a child's uncorroborated testimony without recording reasons for believing her.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court could convict on the sole evidence of each complainant under the proviso to section 124 of the Evidence Act and whether the complainants were shown to be telling the truth
- 2.Whether the medical evidence and the recalled clinical officer's evidence established proof of penetration beyond reasonable doubt
- 3.Whether the appellant was afforded a fair trial, including the opportunity to cross-examine the re-called witness
- 4.Whether the failure of the trial magistrate and the High Court to evaluate the evidence, including the appellant's defence, vitiated the conviction
- 5.Whether the appellant's conduct amounted to the actus reus of attempted defilement under section 9(1) of the Sexual Offences Act
Key legal issues
#Conviction on the sole evidence of the complainant under the proviso to section 124 of the Evidence Act
It was permissible to convict on each complainant's sole evidence only if the court was satisfied, for recorded reasons, that she was telling the truth; the trial magistrate never specifically made such a finding.
Both complainants were the only eyewitnesses to the respective counts. The proviso permits conviction on the victim's evidence alone but conditions it on recorded reasons for believing the victim. The trial magistrate failed to find RJ or any prosecution witness truthful, and the High Court merely scrutinised rather than properly evaluated the evidence, so the statutory precondition was not met.
Fair trial and recall of the clinical officer
The recall and re-examination of the clinical officer, whose evidence contradicted his earlier testimony and was central to proof of penetration, without a recorded opportunity for the appellant to cross-examine, violated the right to a fair trial.
The clinical officer first testified there was no proof of forced sexual encounter and that the complainant was sexually active; on recall he contradicted himself about the bruised hymen. Section 150 of the Criminal Procedure Code permits recall only if the accused is given an opportunity to cross-examine, and no record showed that right was explained and waived.
Actus reus of attempted defilement under section 9(1) of the Sexual Offences Act
The appellant's acts towards the second complainant were too remote to constitute an act which would cause penetration; not every offensive act with a child is attempted defilement, since section 11(1) creates a distinct offence of indecent acts.
Section 9(1) requires an act which would cause penetration. The appellant did not touch the second complainant, remove her underpants or his own clothing, or reach her genital organs. Applying the Mussa s/o Saidi test, the acts were too remote from the intended offence to amount to an attempt.
Duty of the first appellate court to evaluate the evidence
The trial magistrate did not evaluate the evidence including the appellant's defence, and the High Court merely scrutinised without proper evaluation and re-consideration; had it done so, reasonable doubt would have emerged.
The first appellate court must re-evaluate the entirety of the evidence afresh. The High Court accepted the prosecution case before considering the appellant's sworn testimony, which was erroneous. The contradictions in timing, reporting, and medical evidence, plus the possibility that K fabricated the charges, cast reasonable doubt on the prosecution case.
Misdirection and misapprehension of the evidence by the courts below
The finding that other witnesses saw RJ come out of the appellant's office crying was a misdirection, as no witness gave such evidence.
The trial magistrate relied on alleged corroboration that did not exist in the record. M did not see RJ leave the office; K only received a report of attempted, not actual, defilement. The High Court built its finding on this non-existent corroboration, misapprehending the evidence on a critical fact.
Legal principles established
#- A trial court may convict on the sole evidence of a sexual-offence complainant only if, for reasons recorded in the proceedings, it is satisfied the victim is telling the truth.
- The actus reus of attempted defilement is an act which would cause penetration; not every offensive act with a child amounts to attempted defilement.
- Where a trial court recalls a witness under section 150 of the Criminal Procedure Code, the accused must be afforded an opportunity to cross-examine that witness.
- A first appellate court must evaluate and re-consider the whole evidence, including the accused's defence, together with the prosecution evidence, before making findings of fact.
Court orders
#- 1.The appeal is allowed in its entirety
- 2.The conviction in count 1 and count 2 are quashed and the respective sentences set aside
- 3.The appellant shall be set at liberty forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Eldoret
- H.C. Cr. A. No. 102 of 2014
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution and the Criminal Procedure Code over an appeal from the High Court sitting on first appeal from a subordinate court conviction
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the foregoing reasons, the appeal is allowed in its entirety. The conviction in count 1 and 2 are quashed and the respective sentences set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
The main ingredient of the offence of attempted defilement is committing an act which would cause penetration. It is noteworthy that section 11(1) of the Sexual Offences Act establishes a distinct offence of committing an indecent act with a child.
There was reasonable doubt that the appellant committed the two offences.
In the absence of any record that the right of the appellant to cross-examine the recalled witness was explained but waived, the complaint of the appellant is valid.
The High Court merely scrutinised the evidence without proper evaluation and re-consideration.
Issues in the judgment
#The judgment inconsistently records the date of the alleged offences and Keter's reporting date, referring to '6th October 2009' in the particulars but '6th November 2009' in Keter's narration.
The appellate chronology is internally odd: the High Court judgment is stated to have been delivered on 13th July 2015 in H.C. Cr. A. No. 102 of 2014 arising from a 2009 trial, and the present second appeal was filed in 2017, which is a long interval, though not contradictory on the face of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR)", Case Analysis (2019). Criminal Appeal No. 128 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/394/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.