Lokitesa Lokisa v Republic [2019] KECA 516 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 25-year defilement sentence, confirming a sexual offence victim's testimony alone can justify conviction.
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 appellant was accorded a fair trial
- 2.Whether the charge sheet was defective
- 3.Whether the particulars of the charge of defilement were established and if so whether the appellant was positively identified as the perpetrator
- 4.Whether the sentence of 25 years meted on the appellant was legal
Key legal issues
#Whether the appellant was accorded a fair trial
The ground failed; it was raised for the first time on second appeal and was an afterthought, and the proceedings showed no prejudice.
The complaint of unfair trial was never raised before the first appellate court and was therefore an afterthought. Perusal of the proceedings showed the appellant understood the prosecution evidence, cross-examined witnesses, and was heard in defence. The trial was partly held in camera, justified in the circumstances of a sexual offence against a minor, and the appellant suffered no prejudice.
Whether the charge sheet was defective
The charge sheet was not defective; the ingredients of the offence were established and the conviction was safe.
The prosecution had to establish penetration, that the penetration was deliberately caused by the appellant, and that the victim was a child aged 16. JK's age was proved by her birth certificate, her testimony, and the doctor's estimate. Penetration was established by JK's testimony corroborated by the doctor's findings. The appellant was identified by recognition, and his evidence was corroborated by G's testimony. The inconsistencies were inconsequential and caused no prejudice.
Whether corroboration of the complainant's evidence was required
JK's testimony alone was sufficient to sustain the conviction; corroboration was not necessary as the proviso to section 124 of the Evidence Act permits conviction on the victim's evidence alone where the court is satisfied of its truth.
Under the proviso to section 124 of the Evidence Act, in sexual offence cases the court may convict on the victim's evidence alone if satisfied of its truth and reasons are recorded. G, aged 13, was not a child of tender years under the Children's Act and her sworn evidence required no corroboration; in any event her evidence corroborated JK's. The failure by the first appellate judge to address corroboration caused no prejudice since JK's evidence was corroborated by G and the medical evidence.
Whether the 25-year sentence was legal
The sentence was lawful and within the court's discretion; severity of sentence is a matter of fact outside the scope of a second appeal.
Under section 361(1)(a) of the Criminal Procedure Code, severity of sentence is a matter of fact and not open in a second appeal limited to matters of law. The minimum sentence under section 8(4) of the Sexual Offences Act is 15 years, so a 25-year sentence was lawful. Following settled authority, an appellate court will not interfere with sentence absent manifest excessiveness, a material factor overlooked, wrong material considered, or a wrong principle; none was shown, and the appellant acted in a despicable, beastly and callous manner.
Legal principles established
#- A second appellate court is bound by concurrent findings of fact of the two courts below and may interfere only where there was no evidence at all, or the evidence was such that no reasonable tribunal could base a decision on it
- In a second appeal, severity of sentence is a matter of fact and not open for consideration; the appellate court will not interfere with sentence unless it is manifestly excessive, a material factor was overlooked, wrong material considered, or a wrong principle applied
- In sexual offences, under the proviso to section 124 of the Evidence Act, the evidence of the alleged victim alone may sustain a conviction where the court, for reasons recorded, is satisfied the victim is telling the truth
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The conviction and sentence of 25 years imprisonment are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- High Court Criminal Appeal No. 50 of 2013
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Interference with the sentence of 25 years imprisonment
Severity of sentence is a matter of fact not open in a second appeal; no justification to interfere with the trial court's discretion
Costs
No costs order was made in the judgment.
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.
Accordingly, this appeal has no merit. It is dismissed in its entirety.
We come to the conclusion that the appellant’s conviction and sentence is proper and that the learned judges of the two lower courts cane to the right conclusion.
we are under legal duty to pay proper homage to the concurrent findings of facts by the two courts below and we would only be entitled to interfere if and only if, we were satisfied that there was no evidence at all upon which such findings were based
under section 361(1)(a) of the Criminal Procedure Code, severity of sentence is a matter of fact and therefore not open for consideration in a second appeal where the Court’s jurisdiction is limited to matters of law only.
It is important to bear in mind that in sexual offences the evidence from one witness, even from a minor, would be sufficient to sustain a conviction as long as the court is satisfied with the veracity of the testimony of the complainant.
Issues in the judgment
#The judgment is internally inconsistent on the weight of G's evidence: it states her evidence without corroboration was inconsequential, yet relies on her testimony as corroboration of JK
The judgment states the trial judge exercised her discretion in sentencing, although the first appellate judge was referred to as male ('the learned Judge') and the trial court was a magistrate
The judgment is dated and delivered at Kisumu although the appeal was filed at the Court of Appeal at Eldoret
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lokitesa Lokisa v Republic [2019] KECA 516 (KLR)", Case Analysis (2019). Criminal Appeal No. 64 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/516/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.