Kennedy Mavindu Kyengo v Republic

The Court of Appeal, as a second appellate court, is bound by concurrent findings of fact of the two courts below unless no reasonable tribunal could have reached them. Here the complainant's own account, her mother's observation that she walked with difficulty, and the HVS examination revealing spermatozoa, red blood cells and epithelial cells together established penetration. Absence of external injuries does not negate penetration. No basis was laid to disturb the concurrent finding.

Relying on Kaingu Elias Kasomo v Republic, the Court reiterated that age is a critical component of a defilement charge and must be proved by credible evidence because the sentence depends on the victim's age. It may be established by various forms of evidence, including the testimony of a credible child and her mother, and here the P3 form also placed the age at about 14 years, within the same sentencing band under Section 8(3) of the Sexual Offences Act.

The High Court, relying on Amedi Omurunga v Republic, held that the omission to cite Section 8(1) SOA, the section creating the offence of defilement, did not vitiate the charge where the appellant suffered no prejudice. The Court of Appeal did not disturb that finding, the appeal on conviction being an afterthought raised by supplementary grounds years after the grounds of appeal were filed confined to sentence.

The Court invoked M'Riungu v Republic and Thiaka v Republic to frame its limited mandate: it will not interfere with the decision of the first appellate court unless it is apparent that no reasonable tribunal could have reached that conclusion, and it must accept findings of fact based on acceptable and clear evidence adduced at trial. Within those confines, all grounds challenging conviction failed.