EMK v Republic (Criminal Appeal 23 of 2017) [2023] KECA 1548 (KLR)
The bottom line
#Kenya's Court of Appeal freed a man serving 20 years for defilement because weak, contradictory and delayed evidence left doubt about his guilt.
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 learned trial magistrate erred in law by misdirecting himself in permitting the trial to be conducted by police inspectors who were unauthorized persons contrary to Article 157 of the Constitution
- 2.Whether the learned judge erred in law in failing to note that DNA was not conducted
- 3.Whether the learned judge erred in law in failing to note that the appellant's defence was not considered
- 4.Whether the learned judge erred in law in failing to consider the time spent in remand by the appellant prior to conviction and sentence as provided under Section 333(2) of the Criminal Procedure Code
Key legal issues
#Legality of prosecution conducted by police inspectors under Article 157 of the Constitution
The ground failed because there was no evidence of a notice issued by the DPP under Section 57(1)(c) of the ODPP Act terminating the inspectors' appointments as public prosecutors.
The trial commenced in October 2013, after the ODPP Act came into force on 16th January 2013. Section 57(1)(c) provides that public prosecutors appointed under the Criminal Procedure Code or other law cease to be prosecutors upon a notice issued by the Director. The record contained no such notice, so the appellant's contention that the inspectors were unauthorized persons was unsupported, and the ground was dismissed in its entirety.
Whether the prosecution proved the charge of defilement beyond reasonable doubt given the failure to conduct a DNA test, discrepancies in witness testimony, and delay in medical examination
The charge was not proved to the required standard; credibility problems with PW1 and PW3, the unexplained two-month delay in examination, and the unavailability of DNA evidence left the court in doubt as to the appellant's culpability.
PW1 testified the defilement occurred twice (17th August and 17th October 2013), while PW3 said PW1 reported it happened once. PW1 was not medically examined until two months after the alleged offence, so the medical evidence had little probative value, and the pregnancy was terminated so no DNA test was possible. The State conceded on the credibility of the prosecution witnesses. The court found the charge unproved and gave the appellant the benefit of the doubt.
Legal principles established
#- A second appellate court under Section 361 of the Criminal Procedure Code deals only with matters of law and will not interfere with concurrent findings of fact unless based on no evidence, a misapprehension of the evidence, or wrong principles.
- Where there is no notice issued by the Director of Public Prosecutions under Section 57(1)(c) of the ODPP Act terminating appointments of prosecutors appointed under prior law, prosecutors retain authority to prosecute and a challenge under Article 157 fails.
- Where an appellate court entertains doubt as to an accused person's culpability, the benefit of the doubt must be given and the conviction quashed.
Court orders
#- 1.The conviction is quashed
- 2.The sentence is set aside
- 3.The appellant is to be released forthwith unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Naivasha
- 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
#Consideration of the remaining grounds of appeal (defence not considered; Section 333(2) remand time)
The court found it unnecessary to consider the remaining grounds once it entertained doubt as to the appellant's culpability
Costs
No costs order made
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.
This being a second appeal we are reminded of our primary role as a second appellate court, namely to steer clear of all issues of facts and only concern ourselves with issues of law
there is nothing to show that there was a notice issued by the Director pursuant to which Inspectors Nyambache, Muniko and Mutua ceased to be prosecutors.
In our view, the evidence of this particular witness was really of no probative value especially due to the fact that PW1 was examined two months after the commission of the ofience.
Consequently, the conviction herein is hereby quashed and the sentence set aside. The appellant is to be released forthwith unless he is otherwise lawfully held.
Issues in the judgment
#The judgment contains inconsistent dates for the alleged offences and the dates of the decision under appeal; at one point the alleged offences are stated as occurring in 2023 rather than 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "EMK v Republic (Criminal Appeal 23 of 2017) [2023] KECA 1548 (KLR)", Case Analysis (2023). Not stated in the judgment (Criminal Appeal from Naivasha; High Court Cr. Appeal against Naivasha Chief Magistrate's Court conviction). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1548/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.