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Court of AppealPartially AllowedCriminal Appeal No. 313 of 2018

B W v Republic [2019] KECA 659 (KLR)

Court of Appeal of Kenya
6 June 2019
AMAsike MakhandiaPKPatrick KiageFOFatuma Otieno-Odek
2,695 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 upheld a rape conviction but reduced a mandatory life sentence to 20 years, confirming past relationships never imply consent.

What this practically means

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Executive summary

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This was a second appeal against conviction for rape under Section 3(1)(a)(b) of the Sexual Offences Act and against a mandatory minimum life sentence, arising from the dismissal of the appellant's first appeal by the High Court at Bungoma (H. A. Omondi J.) on 16th June 2017. The prosecution case rested on the testimony of the 18-year-old complainant, her 15-year-old sister who witnessed the act, and a clinical officer who recorded torn pants, broken hymen and semen on the vulva. As a second appellate court, the Court of Appeal confined itself to matters of law under Section 361 of the Criminal Procedure Code, applying the settled principle that it will not interfere with concurrent findings of fact unless based on no evidence or a perversion of the evidence. It found no error of law in the identification of the appellant by recognition, and held that the evidence of strangulation, threats, faint screams and a torn panty supported the concurrent finding of absence of consent; prior sexual encounters between the parties did not negate rape on the latter occasion. On sentence, invoking the Supreme Court's decision in Muruatetu and this Court's decisions in Christopher Ochieng and Jared Koita Injiri, the court held the mandatory minimum life imprisonment excessive and set it aside, substituting a term of 20 years' imprisonment from 17th July 2015, while upholding the conviction. The appeal therefore succeeded only in part. Notably, the judgment records delivery under Rule 32(2) of the Court of Appeal Rules with Kiage JA having refused to sign it, though no separate opinion by him appears on the record.

Questions the Court framed

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

  1. 1.Whether there was an error of law in the identification of the appellant as the person who committed the offence
  2. 2.Whether the complainant consented to sexual intercourse with the appellant
  3. 3.Whether the sentence of life imprisonment was excessive and harsh in the circumstances of the case

Key legal issues

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01

Scope of a second appeal

Holding

The appeal is confined to matters of law; the court will not disturb concurrent findings of fact unless they are based on no evidence, a perversion of the evidence, or no reasonable tribunal properly directing itself could reach them.

Reasoning

By dint of Section 361 of the Criminal Procedure Code, a second appeal lies only on points of law. The court applied the Karingo v R and Adan Muraguri Mungara formulations, re-examining the record only to ascertain whether an error of law was disclosed in the High Court judgment.

p. 3
02

Identification of the appellant

Holding

There was no error of law: the appellant was identified by recognition, being known to both the complainant and PW2 prior to the offence, and was positively placed at the scene.

Reasoning

The complainant and PW2 knew the appellant before the incident; the offence occurred at 5.00 pm in broad daylight with close body contact, leaving no room for mistaken identity or recognition. The concurrent findings of the two courts below were therefore deferred to.

p. 4
03

Consent

Holding

The evidence of strangulation, threats, faint screams and a torn panty led to the inference that the complainant did not consent; prior sexual encounters between the parties did not negate rape on the later occasion.

Reasoning

The court weighed the torn underpants, the faint screams, and testimony of strangulation and threats against the admission of prior sexual intercourse. It held that consent can be withdrawn and that previous encounters do not negate rape where consent is absent on the latter occasion, deferring to the concurrent findings on absence of consent.

p. 4
04

Legality and propriety of the mandatory minimum life sentence

Holding

The life sentence imposed on the basis of the mandatory minimum under Section 8(1) of the Sexual Offences Act was excessive and could not stand; it was set aside and substituted with 20 years' imprisonment.

Reasoning

Guided by the Supreme Court's decision in Muruatetu on the unconstitutionality of mandatory sentences and persuaded by this Court's decisions in Christopher Ochieng and Jared Koita Injiri, the court held that a mandatory life sentence deprives courts of legitimate sentencing discretion. Considering that the encounter was not the first between the parties, the sentence was found excessive and reduced to a determinate term of 20 years from the date of the trial sentence.

p. 4

Legal principles established

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  • A second appeal is confined to matters of law and the second appellate court will not interfere with concurrent findings of fact unless based on no evidence, a perversion of the evidence, or where no reasonable tribunal properly directing itself would arrive at such findings.
  • A mandatory minimum sentence under the Sexual Offences Act, by depriving courts of sentencing discretion, is vulnerable to constitutional challenge on the reasoning in Muruatetu, and an appellate court may interfere with such a sentence where it is excessive in the circumstances of the case.
  • Previous consensual sexual encounters between a complainant and an accused do not negate rape on a later occasion, as consent can be withdrawn; absence of consent may be inferred from evidence such as strangulation and torn underpants.

Court orders

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  1. 1.The life sentence meted upon the appellant is set aside
  2. 2.Life imprisonment substituted with imprisonment for a term of 20 years with effect from the date of sentence by the trial court on 17th July 2015
  3. 3.The conviction of the appellant for the offence charged is upheld

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

AM
majority

Wrote the judgment

PK
majority
FO
majority
On appeal from
High Court of Kenya at Bungoma
HC Cr. Appeal No. 135 of 2015
Jurisdiction invoked
Second appeal under Section 361 of the Criminal Procedure Code, confined to matters of law

Relief refused

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Impugning the conviction on identification and on lack of analysis of evidence

Concurrent findings of fact by the two courts below that the appellant was identified by recognition and that there was no consent were not disturbed; no error of law disclosed

p. 4

Costs

No costs order is recorded in the judgment; being a criminal appeal, none was made.

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.

A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence.
p. 3Scope of second appeal
We are alive to the fact that consent to sexual intercourse can be withdrawn and the fact that previously the duo had engaged in sexual encounters does not negate that rape can be committed if no consent has been given on a latter occasion.
p. 4Consent in rape prosecutions
We intervene and hereby set aside the life sentence meted upon the appellant.
p. 4Sentence - final orders
We substitute the term of life imprisonment with an imprisonment for a term of 20 years with effect from the date of sentence by the trial court on 17th July 2015. Otherwise, we uphold the conviction of the appellant for the offence charged.
p. 4Disposition - final orders

Issues in the judgment

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material

The judgment states it is delivered under Rule 32(2) with one judge of the coram having refused to sign it, yet no separate dissenting or concurring opinion by that judge appears in the judgment; the record also omits Kiage JA's signature block, leaving the precise position of that judge and the effective bench composition unclear.

minor

The judgment inconsistently refers to the clinical officer as both PW4 and PW3 when recounting her evidence.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "B W v Republic [2019] KECA 659 (KLR)", Case Analysis (2019). Criminal Appeal No. 313 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/659/eng@2019-06-06

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