Tarus v Republic (Criminal Appeal 37 of 2018) [2023] KECA 32 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a defilement conviction but cut a mandatory life sentence to 30 years, ruling mandatory sentences wrongly tie judges' hands.
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's rights under Article 25 (c) and 50 (2) of the Constitution were violated
- 2.Whether the trial court contravened the provisions of Sections 214 of the Criminal Procedure Code, 124 of the Evidence Act and 19 (1) of the Oaths and Statutory Declarations Act
- 3.Whether the Judge re-evaluated the evidence afresh to draw his own conclusion that the prosecution had proved its case to the required standard
- 4.Whether the defence raised by the appellant was considered
- 5.Whether the mandatory sentence is Constitutional
Key legal issues
#Standard of interference on second appeal
A second appeal is confined to points of law; concurrent findings of fact will not be disturbed unless based on no evidence.
The court invoked Kavingo vs R and Chemagong vs R to frame its role. It therefore limited itself to whether the two courts below had evidence on which to base their findings on age, identification and penetration, and declined to re-weigh the facts afresh. Finding evidence existed on each ingredient, it declined to interfere with the conviction.
Particularity of constitutional rights violations
Bare allegations of breach of Articles 25(c) and 50(2) without demonstrating which rights were infringed and how must fail.
Following Anarita Karimi Njeru and Matiba vs AG, the court held that the appellant made a sweeping statement without demonstrating which ingredient of fair trial was breached, or how. Article 50(2) enumerates multiple rights; a litigant must identify with particularity the specific right and manner of infringement. The ground collapsed for want of specificity.
Corroboration of victim's evidence under section 124 of the Evidence Act
The proviso to section 124 permits conviction on the sole evidence of the victim where the court, for recorded reasons, is satisfied the victim is truthful; no breach arose.
The court noted defilement is typically perpetrated when the assailant is alone with the victim, which prompted the proviso. The trial court relied on the minor's evidence on identification, which the first appellate court upheld. No violation of section 124 or section 19(1) of the Oaths and Statutory Declarations Act was demonstrated.
Proof of age, penetration and identity; DNA testing
Age proved by immunization card and medical evidence; penetration proved by victim's evidence supported by medical evidence; absence of a DNA test not fatal.
The immunization card and clinical officer's evidence established age; the minor's testimony identified the appellant, corroborated by a month-old injury consistent with a prior assault. Penetration was proved by the victim's evidence and medical findings. The court held the number of witnesses is not cast in stone and failure to conduct a DNA test was not fatal.
Consideration of the accused's defence and burden of proof
Both courts considered the appellant's defence of grudge/framing and found it did not raise a reasonable doubt; the burden never shifted.
Citing Woolmington v DPP, Bhatt v Republic and Abdalla Bin Wendo, the court reaffirmed the prosecution bears the legal burden throughout. The appellant's unsworn testimony of a frame-up over wage arrears was considered by both lower courts and rejected as an afterthought unsupported by tangible evidence. The court found no reason to interfere.
Mandatory life sentence for defilement of a child under section 8(2) SOA
The mandatory life sentence was reduced to 30 years, the appeal being allowed only on sentence.
Relying on the South African decision in S vs Toms, the court agreed that mandatory sentences reduce the sentencing discretion of the court to a rubberstamp and are a undesirable intrusion on the sentencing function. On that basis, and considering the appellant's age and status as a first offender, the court substituted 30 years imprisonment running from the time of incarceration.
Legal principles established
#- A second appellate court is confined to points of law and will not interfere with concurrent findings of fact of the two courts below unless they are not based on evidence.
- Where a party alleges breach of fundamental rights and freedoms, they must state and identify those rights with precision and the manner of infringement.
- Under the proviso to section 124 of the Evidence Act, a court may convict on the uncorroborated evidence of an alleged victim of a sexual offence if satisfied, for reasons recorded, that the victim is telling the truth.
- Proof of a victim's age may be by documents such as a birth certificate, baptism card, immunization records, oral evidence of the child, parents, guardians or medical evidence, provided it is credible and reliable.
- Penetration in defilement need not be complete; partial penetration suffices, and it may be proved by the victim's evidence, with medical corroboration desirable but not an invariable rule; failure to conduct a DNA test is not fatal.
- The legal burden of proof lies throughout with the prosecution, and the accused is under no obligation to prove innocence; an accused who testifies is entitled to have that evidence considered to determine whether it raises a reasonable doubt.
Court orders
#- 1.The conviction of the appellant is upheld
- 2.The sentence of life imprisonment is reduced to 30 years imprisonment, to run from the time of incarceration
- 3.The appeal is allowed only on sentence
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Second appellate jurisdiction under the Court of Appeal's statutory appellate powers (Criminal Procedure Code appellate framework); the judgment records only that this is a second appeal confined to points of law
Relief refused
#Quashing of conviction / acquittal on all grounds other than sentence
The elements of defilement were proved and the fair trial and statutory violation grounds were not demonstrated with particularity
Claim of violation of Articles 25(c) and 50(2) of the Constitution
Sweeping allegations without particularity of which rights were infringed and how
Costs
No costs order 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.
A second appeal must be confined to points of law and this Court will not interfere with the concurrent findings of fact arrived at in the two courts below, unless based on no evidence.
where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify those rights with precision and how they have been, or will be infringed in respect to him or her.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
The infliction of punishment is a matter for the discretion of the trial court. Mandatory sentences reduce the court's normal sentencing function to the level of a rubberstamp.
We agree with the above decision and accordingly reduce the sentence of the appellant to 30 years. The sentence will run from the time of incarceration. In the circumstances this appeal is allowed only on sentence.
Issues in the judgment
#The judgment refers to the complainant variously as five years old in the charge particulars and four years old in witness testimony and the court's analysis, without reconciling the discrepancy.
The case number and the outcome of specific grounds are stated only narratively; the final orders do not restate the upheld conviction expressly, it being implied by 'allowed only on sentence'.
The court does not state its own conclusion on the constitutionality of the mandatory sentence as a declaratory matter, yet reduces the sentence on that footing, leaving the precise ratio of the sentence reduction implicit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tarus v Republic (Criminal Appeal 37 of 2018) [2023] KECA 32 (KLR)", Case Analysis (2023). Second Appeal (Court of Appeal, Eldoret) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/32/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.