PSM v Republic (Criminal Appeal 203 of 2018) [2023] KECA 429 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a fair-trial violation alone won't overturn a conviction if the remaining evidence is strong enough to sustain it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court can vitiate a superior court decision on the basis of issues that were not raised at the superior court
- 2.Whether the mandatory sentence meted on the appellant is unconstitutional
Key legal issues
#Whether new grounds raised for the first time on second appeal can vitiate the superior court's decision
They cannot; the Court declined to fault the High Court on issues never placed before it, though it went on to consider the grounds as matters of law.
The Court relied on its prior decisions holding that issues sprung up for the first time on second appeal, on which no opinion exists from the two courts below, should not be addressed. The first appellate judge cannot be faulted for failing to address issues never placed before her. Nonetheless, since the grounds raised were matters of law, the Court considered them on their merits.
Whether the failure to afford the appellant an opportunity to cross-examine the minor complainant violated his fair trial rights
Yes, it was a violation, but the remaining evidence was cogent and sufficient to sustain the conviction, so the appeal on this ground did not succeed.
Article 50(2)(k) and section 302 of the Criminal Procedure Code entitle an accused to cross-examine all prosecution witnesses, including a minor giving unsworn evidence. The record showed the appellant was not afforded that opportunity. The Court considered a mistrial, a retrial, or assessing the remaining evidence; it found the evidence of the witnesses who were cross-examined consistent and sufficient to prove age, penetration and identity.
Whether the language used by prosecution witnesses not being indicated on the record violated Article 50(2)(g)-(h)
No violation; the record indicated the appellant's preferred language and he participated fully, including cross-examining witnesses.
The appellant himself told the trial court he understood Kiswahili. His complaint was only that the record did not reflect the language used from PW3 to PW5 or whether an interpreter was present. The Court reasoned that his active participation and cross-examination of witnesses demonstrated he understood the language and followed the proceedings.
Whether the mandatory minimum sentence of life imprisonment under section 20(1) of the Sexual Offences Act is unconstitutional
The mandatory nature of the sentence is unconstitutional, but on the facts the life sentence was commensurate with the offence and the appeal was dismissed.
Relying on South African authority and this Court's decision in Dismas Wafula Kilwake, the Court held that mandatory sentences reduce the court's sentencing function to a rubberstamp and are repugnant. However, the trial court did hear mitigation, and given that the appellant repeatedly preyed on his own very young daughter, the sentence imposed was proportionate to his culpability.
Legal principles established
#- A second appeal is confined to points of law and the Court of Appeal will not interfere with concurrent findings of fact unless they are based on no evidence
- New grounds raised for the first time on a second appeal cannot be the basis for vitiating the decision of the High Court
- An accused person has the right to cross-examine prosecution witnesses whether they testify on oath or without oath, regardless of their age
- The mandatory nature of minimum sentences is unconstitutional, but a sentence may nonetheless stand where it is commensurate with the offence
Court orders
#- 1.The appeal is found to have no merit and is dismissed in its entirety
- 2.The conviction for incest and the sentence of life imprisonment as upheld 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 at Eldoret
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#Vitiation of the High Court decision on grounds raised for the first time on second appeal
New grounds not raised before the trial court or the High Court cannot be the basis for vitiating the superior court's decision
Retrial sought by the respondent in the event the appeal succeeded on the cross-examination ground
The prosecution did not demonstrate that witnesses and evidence remain available after ten years for the Court to form an opinion that a conviction is likely to result
Setting aside the life imprisonment sentence on the ground that it was a mandatory minimum
Although the mandatory nature of minimum sentences is unconstitutional, on the facts the sentence was commensurate with the offence
Costs
No costs order was 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 concurrent findings of fact arrived at in the two courts below unless they are based on no evidence.
Therefore, it is clear that the appellant has the right to cross-examine the prosecution witnesses whether they testify on oath or without oath, regardless of their age.
It is clear therefore, that the mandatory nature of the sentence is what is unconstitutional.
As a result, the appeal is found to have no merit and is accordingly dismissed in its entirety.
Issues in the judgment
#The judgment states the appellant was charged under section 20(1) of the Sexual Offences Act, but in submissions on sentence the appellant and the Court refer to section 8(2) as providing the mandatory minimum life imprisonment sentence, without reconciling the two provisions
The judgment does not state the case number of the appeal or the neutral citation, and the coram gives only initials and surnames for the judges
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PSM v Republic (Criminal Appeal 203 of 2018) [2023] KECA 429 (KLR)", Case Analysis (2023). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/429/eng@2023-04-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.