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Court of AppealDismissedNot stated in the judgment

Adiya v Republic (Criminal Appeal 87 of 2021) [2023] KECA 751 (KLR)

Court of Appeal of Kenya
22 June 2023
2,527 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal upheld a defilement conviction and 30-year sentence, confirming that second appeals can only raise questions of law, not facts.

What this practically means

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Executive summary

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The appellant, Levis Mabare Adiya, was convicted by the trial court of defilement contrary to section 8(1)(2) of the Sexual Offences Act, the complainant being a 10-year-old girl (aged 9 by the Court's computation), and sentenced to life imprisonment. On first appeal, the High Court (Kimaru, J) on October 16, 2019 affirmed the conviction but reduced the sentence to 30 years' imprisonment. On second appeal, the Court of Appeal (Asike-Makhandia, Murgor and ole Kantai, JJ.A) reiterated that its mandate under section 361(1)(a) of the Criminal Procedure Code is confined to matters of law. Framing four issues - proof of the offence to the required standard, non-calling of crucial witnesses, proof of the complainant's age, and consideration of the defence - the Court found no merit in any ground. The complainant's testimony was forthright, an eyewitness teacher placed the appellant at the scene, and medical evidence of a broken hymen corroborated defilement. Age was proved by the father's testimony, a church card and Form B1 under the Births and Deaths Registration Act. Citing section 143 of the Evidence Act and Suleiman Aziz v Republic, the Court held the prosecution was not obliged to call the neighbours who apprehended the appellant, as no particular number of witnesses is required and the evidence called was adequate. The alibi defence was properly rejected as evasive, and the High Court had duly re-evaluated the evidence. The appeal was dismissed in its entirety, leaving the conviction and the 30-year sentence intact.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the offence of defilement was proved to the required standard
  2. 2.Whether crucial witnesses were not called by the prosecution
  3. 3.Whether the age of the complainant was proved
  4. 4.Whether the appellant's defence was considered by the courts below
  5. 5.Whether the High Court on first appeal re-evaluated the evidence as required by law

Key legal issues

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01

Scope of second appellate jurisdiction

Holding

The Court's mandate on a second appeal is limited to matters of law only under section 361(1)(a) of the Criminal Procedure Code.

Reasoning

The Court cited its earlier decision in Michael Ang'ara Paul v Republic, adopting the formulation that on a second appeal it must not re-evaluate facts tried by the trial court and re-evaluated on first appeal unless the findings were unsupported by evidence, based on misapprehension of the evidence, made on wrong principles, or perverse. It then framed the matters of law arising and confined itself to those questions.

p. 1
02

Proof of defilement and identification

Holding

The offence was proved to the required standard; the complainant's testimony, the evidence placing the appellant at the scene, and corroborative medical evidence established defilement beyond reasonable doubt.

Reasoning

The complainant gave a forthright account of the assault; PW2 found the appellant at the scene surrounded by a crowd, displacing the appellant's claim of arrest at his house. Clinical examination confirming redness of the genitalia and a broken hymen corroborated the complainant's evidence. The appellant was known to the victim as a neighbour, so identification was not in issue.

p. 4
03

Proof of the complainant's age

Holding

The complainant's age was adequately proved by her father's testimony, a church card and Form B1 issued under the Births and Deaths Registration Act, showing she was 9 years old at the material time.

Reasoning

The father testified the child was born on June 17, 2007, which was confirmed by a church card from African Divine Church and by Form B1 issued under the Births and Deaths Registration Act, both produced in evidence. The Court concluded the child was therefore 9 years old when defiled, answering the appellant's complaint that age was not adequately proved.

p. 4
04

Failure to call crucial witnesses

Holding

The prosecution discharged its burden without calling the neighbours who apprehended the appellant; no particular number of witnesses is required, and the evidence called was more than barely adequate.

Reasoning

Relying on section 143 of the Evidence Act and Suleiman Aziz v Republic, the Court held that the prosecution must call all necessary witnesses but is not bound to call a plurality; an adverse inference arises only where the evidence called is barely adequate and a withheld witness was important and readily available. Here the complainant, her father, an eyewitness teacher and medical evidence sufficed.

p. 5
05

Consideration of the appellant's defence and re-evaluation by the first appellate court

Holding

The alibi defence was properly displaced as evasive, and the High Court adequately re-evaluated the evidence as required on first appeal.

Reasoning

The appellant claimed he was at a construction site all day and was arrested in his house. The High Court found this displaced by the evidence of the complainant, PW1 and PW2, and evasive. On the re-evaluation complaint, the Court found the High Court identified the charge, set out the evidence and defence, framed issues, analysed each, and reached conclusions, leaving no merit in the ground.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined by section 361(1)(a) of the Criminal Procedure Code to matters of law only and does not extend to re-evaluation of facts, unless findings were not backed by evidence, based on misapprehension of the evidence, made on wrong principles, or are perverse.
  • The prosecution is not bound to call a plurality of witnesses; under section 143 of the Evidence Act no particular number of witnesses is required to prove a fact, and an adverse inference for failure to call a witness arises only where the evidence called is barely adequate.

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The conviction by the trial court and its affirmation by the High Court stand
  3. 3.The sentence of 30 years' imprisonment imposed by the High Court on first appeal stands

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Not stated in the judgment
Jurisdiction invoked
Section 361(1)(a) of the Criminal Procedure Code - second appeal on matters of law only

Relief refused

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Quashing of the conviction and setting aside of the sentence

No merit in any of the grounds of appeal; the offence was proved to the required standard, age was proved, and the defence was properly considered

p. 5

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We have found no merit in any of the grounds of appeal raised by the appellant. The appeal has no merit and we accordingly dismiss it.
p. 5Disposition - appeal dismissed
our mandate on second appeals is limited by Section 361(1)(a) of the Criminal Procedure Code to a consideration of matters of law only
p. 1Scope of second appeal
First, under section 143 of the Evidence Act, in the absence of a provision of law requiring a specific number of witnesses, no particular number is required to prove any fact.
p. 4Number of witnesses required
The High Court identified the charge which the appellant faced; it set out the evidence that was presented and the defence; it set out issues for determination and proceeded to analyze each of those issues and reached conclusions on them.
p. 4Duty of first appellate court to re-evaluate evidence
The child was therefore 9 years old when she was defiled.
p. 4Proof of complainant's age

Issues in the judgment

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minor

The judgment contains two paragraphs numbered 3 (the jurisdiction paragraph and the paragraph beginning 'We shall now look at the evidence'), so internal numbering is inconsistent.

minor

The case number and neutral citation of this appeal are not stated anywhere in the judgment copy provided.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Adiya v Republic (Criminal Appeal 87 of 2021) [2023] KECA 751 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/751/eng@2023-06-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.