AM v Republic (Criminal Appeal 305 of 2013) [2023] KECA 1270 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a 40-year attempted incest sentence appeal, confirming accused persons must object early and recall witnesses when charges are amended.
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
- 2.whether there was failure to call a crucial witness and if so, the effect of such failure
- 3.whether the appellant's right to fair trial was violated
- 4.whether the prosecution discharged its burden of proof on all the elements of the offence
Key legal issues
#Whether the amended charge sheet was defective
The amendment was proper; the trial court complied with section 214 of the Criminal Procedure Code and the appellant, having declined to recall witnesses and fully participated in the trial, was not prejudiced.
Section 214(1) permits amendment or substitution of a charge before the close of the prosecution case, with a fresh plea and an opportunity to recall witnesses. Here the amendment was sought while one witness remained; the appellant objected but then chose not to recall any witness. The court, following Jason Akumu Yongo, held the provisions were strictly observed and that the appellant cannot blame the trial court or prosecutor for his own election. No prejudice was established.
Whether the failure to call the complainant's mother as a witness vitiated the conviction
No. Section 143 of the Evidence Act requires no particular number of witnesses; the mother was not an eyewitness and her evidence would merely have been corroborative. The remaining evidence sufficed.
Following Bukenya v Uganda as stated in Joseph Kiptum Keter and Timothy Kipngetich Kangongo, the court assessed the evidence adduced against the elements of attempted incest. Age of the complainant and the blood relationship were proved by the complainant's evidence, PW1 and the immunization card; identity was by recognition under the proviso to section 124 of the Evidence Act; attempted penetration was corroborated by the doctor's evidence. The omission was therefore immaterial.
Whether the appellant's right to a fair trial was violated by non-supply of witness statements
No violation established. The specific complaint under Article 50(2)(b), (c) & (j) was raised for the first time on second appeal and was an afterthought; no prejudice was shown.
Before the first appellate court the complaint had been framed under Articles 49(f) and 50(2)(g) & (h); the new framing was a shift. In any event, the issue was never raised before the trial court or the first appellate court, the appellant actively participated and cross-examined witnesses, and he knew the charge he faced. The court found no prejudice and declined to found an acquittal on the alleged infringement.
Whether the prosecution discharged its burden of proof on all elements of attempted incest
Yes. Age, blood relationship, identity by recognition, and attempted penetration were all proved to the required standard.
The proviso to section 20(1) of the Sexual Offences Act required proof of the complainant's age, which was established by the complainant's evidence, PW1 and the immunization card, as was the blood relationship. Identification was by recognition of a person well known to the complainant, which the trial court properly relied on pursuant to the proviso to section 124 of the Evidence Act. Attempted penetration was corroborated by PW2's medical evidence. The claim of contradictions was without merit.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law and must respect concurrent findings of fact of the two courts below unless those findings are based on no evidence, a perversion of the evidence, or a misapprehension of the evidence or law.
- Charges may be amended at any time before the close of the prosecution case under section 214 of the Criminal Procedure Code, provided the accused is called upon to plead afresh and offered the right to recall witnesses; where the accused declines to recall witnesses, no prejudice arises.
- The prosecution is not obliged to call any particular number or category of witnesses; the effect of a failure to call a witness is assessed by weighing the evidence adduced against the elements of the offence.
- The elements of attempted incest are the identity of the perpetrator, attempted penetration, and the proximate blood-relation between complainant and perpetrator.
Court orders
#- 1.The appeal is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Section 361(1) of the Criminal Procedure Code (second appeal limited to matters of law)
Relief refused
#Quashing of the conviction and sentence on account of an allegedly defective amended charge sheet
The trial court complied with section 214 of the Criminal Procedure Code and the appellant suffered no prejudice, having opted not to recall witnesses
Acquittal for alleged non-supply of witness statements / violation of fair trial rights
Issue not raised before the trial court or first appellate court; the appellant actively participated in the trial and suffered no prejudice
Reversal of conviction for failure to call the complainant's mother as a witness
Section 143 of the Evidence Act requires no particular number of witnesses; the uncalled witness was not an eyewitness and the remaining evidence was sufficient
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.
The upshot of the foregoing is that this appeal is without merit and is for dismissal. We so order.
This being a second appeal, section 361(1) of the Criminal Procedure Code limits the scope of our mandate to matters of law.
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
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
In the charge of attempted incest, the prosecution is required to prove the identity of the perpetrator, attempted penetration, and the proximate blood-relation between the complainant and the perpetrator.
Issues in the judgment
#The judgment contains no costs order despite the appeal being dismissed; costs are simply not addressed.
The case number of the present appeal and the case numbers of the courts below are not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AM v Republic (Criminal Appeal 305 of 2013) [2023] KECA 1270 (KLR)", Case Analysis (2023). Not stated in the judgment (Criminal Appeal, Court of Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1270/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.