Simon Lovone v Republic

Following Edwin Nyambogo Onsongo, the Court reaffirmed that age may be proved by documents or by credible oral evidence of the child, parents, guardians or medical evidence. Whatever form of proof is preferred, it must be credible and reliable. The testimony of PW1, PW3 and PW5 together with the P3 form met that standard, so there was no basis to fault the concurrent findings of the two courts below.

Although the record did not clarify whether the child understood the word 'defile', her account that the appellant took her to the bush and removed her clothes, corroborated by the clinical officer's findings of bruises, a broken hymen and epithelial cells, left no doubt. Relying on Bassita v Uganda, penetration may be proved by the victim's evidence corroborated by medical or other evidence sufficient to prove the case beyond reasonable doubt.

Applying J.J.W. v Republic, a High Court hearing a first appeal has power under section 354(3) of the Criminal Procedure Code to enhance sentence; the safeguard is that the appellant be made aware, before or at the commencement of the hearing, that the sentence may be enhanced. That warning was given on 14th October 2013, satisfying the requirement even though no cross-appeal was filed.

Following Joshua Gichuki Mwangi and Athanus Lijodi, the Court held that minimum or mandatory sentences under the Sexual Offences Act may still be imposed where, on a proper exercise of sentencing discretion and consideration of the facts, the sentence is deserved or merited. The defilement of a four-year-old child, with no remorse shown by the appellant, was heinous and the life sentence warranted no interference.