Lomaisia v Republic (Criminal Appeal 136 of 2018) [2023] KECA 148 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a 20-year defilement sentence, ruling that a missing legal phrase and skipped procedure don't invalidate a 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 charge sheet was defective for omission of the words 'unlawfully and intentionally'
- 2.Whether the failure to conduct a voir dire examination on PW1 rendered her evidence inadmissible
Key legal issues
#Whether omission of the words 'unlawfully and intentionally' from a charge of defilement under section 8(1) of the Sexual Offences Act renders the charge defective
It does not. The words are not ingredients of the offence of defilement; defilement is itself unlawful, and the particulars of the charge matched the statutory definition in section 8(1)
The Court analysed the Sexual Offences Act and found that where Parliament intended the words 'intentional and unlawful' to be invoked, they are prescribed in the statement of the offence, as in rape and attempted rape. The offence of defilement under section 8(1) does not carry those words in its statement. Following Josephat Wanjala Olbai, the Court held the words are only elements of rape and attempted rape, distinguished David Odhiambo (a Penal Code rape case), and found the charge conformed to section 137 of the Criminal Procedure Code.
Whether failure to conduct a voir dire examination on a 15-year-old complainant rendered her evidence inadmissible
It did not. A child of tender years is a child under 14 years; the 15-year-old complainant was not of tender years, so no voir dire was required and her evidence was properly taken
Section 19 of the Oaths and Statutory Declarations Act governs admissibility of evidence of a child of tender years. The definition of 'child of tender years' in section 2 of the Children Act (under 10 years) is not of general application, being intended only to protect children from criminal responsibility, not as a competency-to-testify test. Relying on Maripett Loonkomok, the Court adopted the 14-year threshold, so a 15-year-old need not be subjected to voir dire. Her evidence was also subject to cross-examination.
Whether the prosecution's failure to call the KPR officers who arrested the appellant was fatal to its case
It was not. The appellant could have called the KPR officer as his own witness and did not explain why he did not do so
The appellant alleged a land dispute with the complainant's father but raised it only when put to his defence, never during cross-examination of prosecution witnesses. The Court held it was always open to the appellant to call the KPR officer as his witness, which he failed to do without explanation, so his criticism of the prosecution lacked foundation and the Bukenya principle on failure to call witnesses did not assist him.
Legal principles established
#- A second appellate court is confined to matters of law and must defer to concurrent findings of fact of the two courts below unless they are based on no evidence, a perversion of the evidence, or no reasonable tribunal would reach them
- In offences under section 8(1) of the Sexual Offences Act, the omission of the words 'unlawful and intentional' from the charge sheet does not render the charge defective
- The threshold for voir dire examination is 14 years; a complainant aged 15 years is not a child of tender years and the trial court is not obliged to conduct a voir dire examination
Court orders
#- 1.The appeal is dismissed
- 2.The conviction and sentence of 20 years' imprisonment imposed by the trial court and affirmed by the High Court stand
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Section 362(1)(a) of the Criminal Procedure Code (second appellate court, matters of law only)
Relief refused
#Quashing of the conviction and setting aside of the 20-year sentence
The Court found the charge sheet valid, the evidence of PW1 properly taken without voir dire, and the criticism of the prosecution for not calling the KPR officers unfounded
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.
As this court has stated many times before, it has a duty to pay homage to concurrent findings of fact made by the two courts below unless such findings are based on no evidence at all or on a perversion of the evidence, or unless on the totality of the evidence, no reasonable tribunal properly directing itself would arrive at such findings.
The offence of defilement is unlawful and the absence of the words "intentional" and "unlawful" in the particulars of the charge do not render the charge defective.
It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination.
The upshot of the foregoing is that this appeal is without merit and is hereby dismissed.
Issues in the judgment
#The judgment refers to section 362(1)(a) of the Criminal Procedure Code but omits the word 'section' in the text, and the paragraph numbering skips from paragraph 18 (containing paragraphs 18 and 19 merged) to paragraph 20, with no paragraph 19
The first judge's name is printed as 'F. SICHALE' at the delivery note; the standard rendering of this judge's name is F. Sichale - possible typographical variance in the certified copy
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Oduma v Republic (Criminal Appeal 31 of 2018) [2024] KECA 1434 (KLR)[2024] KECA 1434 (KLR)11 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Lomaisia v Republic (Criminal Appeal 136 of 2018) [2023] KECA 148 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/148/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.