Shekuwe v Republic (Criminal Appeal E047 of 2024) [2025] KECA 291 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a defilement appeal, confirming it can only review legal errors, not re-test facts already decided by two lower courts.
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 prosecution proved the charge of defilement beyond reasonable doubt
- 2.Whether the trial court disregarded the statutory requirements under sections 163 and 164 of the Evidence Act
- 3.Whether the 1st appellate court failed to freshly analyse and re-evaluate the prosecution evidence
- 4.Whether new points of law raised for the first time on second appeal (sections 33, 37, 77 and 79 of the Evidence Act; consideration of the defence; defectiveness of the charge sheet) should be entertained
Key legal issues
#Scope of a second appeal
The Court's mandate on second appeal is confined to matters of law under section 361 of the Criminal Procedure Code and concurrent findings of fact will not be disturbed absent no evidence or perversion of the evidence.
Relying on Karingo v Republic and Adan Muraguri Mungara v Republic, the Court held that it must pay homage to concurrent findings of fact unless they are based on no evidence at all, on a perversion of the evidence, or where no reasonable tribunal properly directing itself could arrive at them. The ground that the prosecution was driven by grudge was a matter of fact and therefore outside the Court's mandate on second appeal.
Raising new points of law for the first time on second appeal
Grounds based on sections 33, 37, 77 and 79 of the Evidence Act, the alleged failure to consider the defence, and the alleged defective charge sheet, raised for the first time on second appeal, were not entertained.
Following Alwi Saggaf, Alfayo Gombe Okello, Sudi Mnalo Mweke and Wachira v Ndanjeru, the Court held that issues not raised at the earliest opportunity in the courts below cannot be taken on second appeal because the parties had no fair notice and the facts were never tested at trial. Trial by instalments militates against the Court's discretionary powers, and the appellant gave no reason for the earlier failure to raise the points.
Proof of defilement beyond reasonable doubt
The three ingredients of defilement - age of the complainant, penetration, and identification of the perpetrator - were proved to the required standard.
Age was conceded on the basis of the certificate of birth; the medical evidence of a broken hymen and vaginal penetration was produced without objection and the concurrent factual findings on penetration could not be disturbed; identification was by recognition, the appellant being a well-known businessman in the complainant's neighbourhood, and recognition evidence of this kind is more reliable than identification of a stranger.
Duty of the first appellate court to re-evaluate evidence
The High Court discharged its duty to freshly analyse and re-evaluate the prosecution evidence, and the appellant did not demonstrate what the first appellate court failed to do or what law it breached.
The Court accepted the respondent's submission that the record shows the High Court re-evaluated all the evidence presented before the trial court and found all ingredients of the offence established. The appellant's blanketing assertion, unsupported by elaboration of the specific failure or the law breached, could not sustain the ground.
Recognition versus identification evidence
For recognition evidence to be relied upon, the witness must establish circumstances showing that the suspect is not a stranger, such as prior acquaintance, relation, friendship or vicinity.
The Court restated the principle from Anjononi and Peter Musau Mwanza that recognition depends on personal knowledge of the assailant and is more satisfactory than identification of a stranger. The appellant was a well-known businessman whom the complainant easily recognised, and the circumstances of the repeated meetings left no doubt as to whom she was meeting.
Abandoned issues on sections 163 and 164 of the Evidence Act
Neither party made submissions on sections 163 and 164 of the Evidence Act, and the issue was presumed abandoned with nothing turning on it.
Section 163 governs the means by which the credibility of a witness may be impeached and section 164 relates to circumstantial questions to confirm evidence. Since both the appellant and the Senior Prosecution Counsel made no submissions on these provisions, the Court presumed abandonment and made no determination on that issue beyond noting that nothing turned on it.
Legal principles established
#- A second appeal to the Court of Appeal is confined to points of law and the Court will not interfere with concurrent findings of fact of the two courts below unless those findings are based on no evidence.
- A party will not ordinarily be allowed to raise a point of law for the first time on second appeal unless the evidence establishes beyond doubt that the facts, if fully investigated, would have supported the new plea.
- Concurrent findings of fact by the trial court and first appellate court may only be disturbed where they are based on no evidence, on a perversion of the evidence, or where no reasonable tribunal properly directing itself would reach them.
- Recognition of an assailant is more reliable than identification of a stranger because it depends on personal knowledge of the assailant.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The judgment of the High Court of Kenya at Garsen (M. Thande, J.) dated 19th July 2024 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garsen
- Criminal Appeal No. E010 of 2024
- Jurisdiction invoked
- Second appeal under section 361 of the Criminal Procedure Code, confined to matters of law
Relief refused
#Quashing of the conviction and setting aside of the 12-year sentence for defilement
The ingredients of defilement (age, penetration, identification) were proved beyond reasonable doubt and the High Court re-evaluated the evidence
Leave to raise new points of law for the first time on second appeal (sections 33, 37, 77, 79 Evidence Act; defective charge sheet; consideration of defence)
A point of law not raised in the courts below will not ordinarily be entertained on appeal
Interference with concurrent findings of fact on the ground of a frame-up or grudge
A matter of factual evidence which a second appellate court cannot address
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 based on no evidence.
In my view, accordingly, the learned judge ought not to have allowed this issue to be raised, or to have decided the appeal on it.
recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.
we reach the inescapable conclusion that the appeal fails and is hereby dismissed in its entirety. Accordingly, the judgment of the High Court of Kenya at Garsen (M. Thande, J.) dated 19th July 2024 is hereby upheld. It is so ordered.
Issues in the judgment
#The judgment does not state this Court's own appeal number; the appeal is identified only through the courts below (High Court Criminal Appeal No. E010 of 2024 and Malindi Sexual Offence Case No. E068 of 2021). The caseNumber field is therefore inferred and not printed in the judgment.
The date of delivery in the body of the judgment (21st February 2025 in the coram clause) differs from the internal reference to the appeal being decided in relation to submissions dated 10th October 2024, and the judgment also contains a typographical error stating PW5 received a call on 7th September 2024 rather than 2021.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shekuwe v Republic (Criminal Appeal E047 of 2024) [2025] KECA 291 (KLR)", Case Analysis (2025). Criminal Appeal No. E012 of 2024 (as per record of appeal; see dataQualityFlags). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/291/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.