Suleiman v Republic (Criminal Appeal 22A of 2022) [2025] KECA 1189 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a defilement conviction appeal, confirming that new arguments cannot be raised for the first time in a second appeal.
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 against the appellant to the required threshold (age, penetration, identification)
- 2.Whether the appellant's 'reasonable' defence was considered by the courts below
- 3.Whether four grounds of appeal raised for the first time on second appeal could be entertained
Key legal issues
#Proof of the victim's age
Age of 14 years was proved by the complainant's own testimony and her Child Health Card showing she was born on 26th June 2002; the evidence was uncontroverted
The complainant, whose intelligence was unchallenged, testified she was 14 and a class four pupil. PW3 produced her Child Health Card indicating her date of birth. Following Edwin Nyambogo Onsongo, the Court reaffirmed that age may be proved by documents or other credible evidence; the health card sufficed and was unchallenged, so the concurrent finding on age stood.
Proof of penetration
Penetration was proved by the complainant's testimony corroborated by the clinical officer's findings on the P3 form
Section 2 of the Sexual Offences Act defines penetration as partial or complete insertion of genital organs. The complainant testified to sexual intercourse over several days; the clinical officer found absent hymen, white discharge and that she had experienced sexual penetration. Citing Sigei v Republic and Bassita v Uganda, penetration may be proved by direct or circumstantial evidence.
Identification of the perpetrator
Recognition evidence from the complainant, her grandfather and neighbour identified the appellant and remained unchallenged
The complainant knew the appellant, who lived in the neighbourhood; PW1 and PW2 traced her to his house. Following Anjononi and Peter Musau Mwanza, recognition is more reliable than identification of a stranger. The recognition evidence was not shaken, and the concurrent finding that the appellant was the perpetrator was not disturbed.
Whether the appellant's defence was considered
Both the trial court and the first appellate court considered and rejected the defence as a mere denial
Pages of the trial judgment and paragraph 17 of the High Court judgment showed the defence was analysed; the High Court expressly found it a mere denial that could not displace the prosecution case. The Court endorsed Effort Mutanda v S on the requirement that a trial court consider and weigh all material evidence, and found the ground to be a general averment without substance.
New points of law raised for the first time on second appeal
Four grounds raised for the first time on second appeal were dismissed as the Court lacked jurisdiction to reopen them
Citing Alwi A Saggaf, Alfayo Gombe Okello and Wachira v Ndanjeru, the Court held that issues not raised at trial or in the first appeal cannot be entertained on second appeal, particularly where they would involve facts never tested, since trial by instalments militates against the administration of justice.
Legal principles established
#- A second appeal is confined to points of law and an appellate court will not interfere with concurrent findings of fact of the two courts below unless based on no evidence
- Points of law not raised at the trial or in the first appeal will not ordinarily be entertained on second appeal where their determination would involve facts not tested below
- A victim's age in a defilement case may be proved by documents, oral evidence of the child, parents, guardian or medical evidence, provided the proof is credible and reliable
- The three ingredients of defilement are the age of the victim (a minor), penetration, and proper identification of the perpetrator, all of which must be established to secure a conviction
Court orders
#- 1.The four grounds raised for the first time on second appeal are dismissed
- 2.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 of Kenya at Mombasa
- Criminal Appeal No. 84 of 2018 (arising from Sexual Offences Case No. 30 of 2017, Chief Magistrate's Court at Kwale)
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal confined to matters of law)
Relief refused
#Interference with conviction
All three ingredients of defilement were proved to the required standard and concurrent findings of fact were not shown to be based on no evidence
Reduction of sentence
Contingent only on conviction being upheld; conviction upheld so no sentence reduction arose
Section 8(5) Sexual Offences Act defence (deception as to age)
Raised for the first time on second appeal and no deception alluded to in the appellant's defence
Costs
No costs order is recorded in the judgment (silent as to costs)
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.
we find that the appeal has no merit and is hereby dismissed in its entirety. Orders accordingly.
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.
the offence of defilement is rooted on three main ingredients, namely: (i) the age of the victim, who must be a minor; (ii) penetration; and (ii) the proper identification of the perpetrator, all of which must be established to secure a conviction
whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable.
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.
the discretion to allow a point of law to be taken for the first time on appeal will not be exercised unless full justice can be done between the parties.
Issues in the judgment
#The judgment does not print the Court of Appeal case number for the instant appeal, only the first-appeal number (Criminal Appeal No. 84 of 2018)
Inconsistent rendering of the same authority's name and citation: Edwin Nyambaso Onsongo v Republic [2016] eKLR when cited by the respondent, and Edwin Nyambogo Onsongo vs. Republic (2016) eKLR when quoted by the Court
The Court of Appeal decision in Anjononi is cited with two different citations, [1980] eKLR and [1980] KLR 59
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suleiman v Republic (Criminal Appeal 22A of 2022) [2025] KECA 1189 (KLR)", Case Analysis (2025). Criminal Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1189/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.