Wamalwa v Republic (Criminal Appeal 224 of 2020) [2024] KECA 742 (KLR)

The complainant gave a clear and consistent account of the assault on 24th April 2018. Although PW2 conceded the complainant had previous sexual encounters, his conclusion that she was penetrated stood. Proof of defilement does not depend solely on medical evidence; under the proviso to section 124 of the Evidence Act, the victim's evidence may sustain a conviction if the court, for recorded reasons, is satisfied she is telling the truth. No reason existed to depart from the concurrent findings on her truthfulness, and neither age nor identification was challenged.

The court invoked section 361(1)(a) and restated the settled principle, adopting the formulation in Adan Muraguri Mungara v. Republic: interference is warranted only where findings are based on no evidence at all, on a perversion of the evidence, or where no reasonable tribunal properly directing itself would reach such findings. The appellant's challenge to the quality and credibility of the evidence was a factual matter falling outside the court's mandate.

The second appellate court deals with errors of omission or commission by the courts below; where those courts had no opportunity to consider an issue, interference would be improper. Relying on AT v. Republic, the court declined to address the complainant's alleged reluctance to testify and the article 50(2)(g) and (h) claim, both of which were raised for the first time before it.

Proof beyond reasonable doubt means a high degree of probability, not absolute certainty, and that standard was met. On sentence, the court noted it falls outside its purview unless the sentence violates the law; reviewing the sentencing proceedings, it found the trial court properly exercised its discretion and declined to enter that arena.