Kasungu Kalama Jefwa v Republic [2019] KECA 533 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 20-year defilement sentence, confirming that DNA tests and sworn witnesses are not always required for 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 a minor
- 2.whether the evidence of prosecution witnesses who testified without taking an oath was admissible
- 3.whether the exhibits were produced in court
- 4.whether a DNA test on the complainant's child was necessary to connect the appellant with the offence
- 5.whether the sentence was harsh and excessive
Key legal issues
#Whether the appellant was a minor entitled to protections under Article 53(1) of the Constitution and section 190(1) of the Children's Act
The ground fails; the appellant was an adult aged 20, as shown by his own testimony, mitigation statement and possession of a national identity card.
The issue was raised for the first time in the Court of Appeal, but the court considered age a matter of law fit for determination. On the record, the appellant testified he was 20, told the trial court at mitigation that he was 20 and fended for his family, and the Prosecutor stated he had a national identity card which he did not deny. There was nothing to show he contested his age or claimed minority at trial. The claim was therefore an afterthought and uncontroverted.
Whether evidence of witnesses who testified without taking an oath was admissible
PW2 was duly affirmed after a voire dire examination; the record's silence on the oath for William Karisa and Patrick Bashishi was a curable mistake since their evidence was corroborated by PW2 and AKN.
The trial court conducted a voire dire on the 17-year-old PW2 and satisfied itself of his intelligence and understanding of an oath before affirming him. For the two other witnesses, the record did not show they were sworn, which the court accepted was a mistake by the magistrate. However, unsworn statements are not strictly evidence and have no probative value unless supported by other evidence; here the sworn evidence of PW2 and AKN provided sufficient corroboration, so the conviction could stand.
Whether the exhibits (P3 form, treatment notes, age assessment report) were produced in court
Although the exhibits were not included in the appellate record, the trial proceedings showed they were produced and referred to by three witnesses, and the conviction was independently supported by the testimonies of AKN and PW2.
The omission of the exhibits from the record was not fatal because the proceedings showed PW3, Sgt. Jacob Okongo and Patrick Bashishi all referred to Exhibits 1, 2 and 3, and the trial judgment recorded the age assessment placing the complainant at fifteen years. Quite apart from the exhibits, PW2 caught the appellant in the act and AKN testified credibly to repeated defilement, so the conviction was safe. The victim's age could also be proved by means other than medical evidence.
Whether a DNA test under section 36 of the Sexual Offences Act was necessary to connect the appellant to the offence
Section 36 is discretionary; a DNA test was not required where the complainant's evidence, that of PW2 who caught them in the act, and the clinical officer's evidence proved the offence beyond reasonable doubt.
Section 36 of the Sexual Offences Act permits, but does not oblige, a court to direct samples for forensic testing including DNA. Following Geoffrey Kionji, medical examination of the accused is not mandatory or the only basis for conviction. The cogent and reliable evidence of AKN and PW2, accepted by both courts below, established guilt beyond reasonable doubt, so there was no reason for DNA tests to be undertaken.
Whether the 20-year sentence was harsh and excessive
The sentence was fitting and the Court declined to interfere, notwithstanding Muruatetu.
The trial court imposed 20 years' imprisonment after conviction. The appellant relied on Muruatetu, which held the mandatory death sentence unconstitutional, but the Court found that having regard to the circumstances of the case the sentence was proportionate to the offence of repeated defilement of a 15-year-old relative, and saw no reason to interfere with it.
Legal principles established
#- In a second appeal, the Court of Appeal's jurisdiction is confined to questions of law only.
- Unsworn evidence has no probative value on its own but may be relied upon where corroborated by other evidence in the case.
- A DNA test or medical examination of the accused is not mandatory for a conviction in defilement; a court may convict where the evidence proves the offence beyond reasonable doubt.
- A trial court may convict in sexual offences on the evidence of the complainant alone if satisfied the complainant is truthful, per the proviso to section 124 of the Evidence Act.
- Apart from medical evidence, the age of a victim may be proved by birth certificate, the parent or guardian's evidence, and by observation and common sense.
Court orders
#- 1.Dismissal of the appeal against conviction
- 2.Dismissal of the entire appeal as unmerited, upholding the conviction and the 20 years' imprisonment sentence
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCRA No. 152 of 2015
- Jurisdiction invoked
- Second appeal confined to questions of law (Court of Appeal's appellate jurisdiction over appeals from the High Court exercising first appellate jurisdiction in criminal matters)
Relief refused
#Interference with the 20-year sentence on the ground that it was harsh and excessive
The sentence was proportionate to the offence notwithstanding Muruatetu
A finding that the appellant was a child whose rights were violated
Evidence, including the appellant's own admission, showed he was aged 20 and an adult
A direction that a DNA test was necessary to connect the appellant to the offence
Medical examination of the accused is not mandatory; the complainant's and PW2's evidence sufficed
Costs
No order as to costs appears 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.
As such, the appeal is unmerited, and is hereby dismissed. It is so ordered.
In this second appeal, the jurisdiction of this Court is confined to questions of law only.
for unsworn evidence to be admissible, there must be other evidence to corroborate the unsworn evidence
the medical examination of the accused is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement
Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement.
having regard to the circumstances of the case, and notwithstanding the Supreme Court’s decision in Muruatetu (supra) we consider the sentence to befitting of the offence herein and we see no reason to interfere with it.
Issues in the judgment
#The judgment misdescribes the appellant's DNA ground as concerning 'the complainant's child' and then 'the deceased', an internal inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasungu Kalama Jefwa v Republic [2019] KECA 533 (KLR)", Case Analysis (2019). Criminal Appeal No. 18 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/533/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.