Tandara v Republic (Criminal Appeal E013 of 2024) [2026] KECA 324 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a 20-year defilement sentence, confirming child witness procedures and proof of penetration were proper.
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 voire dire examination of the complainant, a child of tender years, was conducted in accordance with Section 19 of the Oaths and Statutory Declarations Act and, if not, whether it vitiated the proceedings
- 2.Whether penetration was proved beyond reasonable doubt by the medical and other evidence
- 3.Whether the omission by the trial magistrate to explain to the appellant his right to legal representation violated Article 50 of the Constitution
- 4.Whether the sentence of 20 years was manifestly excessive or unlawful
Key legal issues
#Scope of a second appeal
The Court is enjoined to consider only matters of law and will not disturb concurrent findings of fact unless they are based on no evidence, a perversion of the evidence, or the decision is plainly wrong
Citing Karani v R and Adan Muraguri Mungara v Republic, the Court restated the settled limit imposed by section 361 of the Criminal Procedure Code. It then undertook a brief restatement of the evidence solely to test whether the concurrent findings of the trial court and High Court were plainly wrong. Finding none, the convictions and sentence stood.
Voire dire examination and competency of a child witness
The record showed that voire dire was conducted and the trial court was satisfied the complainant understood the reason for being sworn, so sworn testimony was properly received
Section 19 of the Oaths and Statutory Declarations Act requires an inquiry into a child of tender years' understanding of the oath. The trial record captured the examination and recorded that the minor understood the reasons for being sworn. Further, the complaint of improper voire dire was raised for the first time on second appeal, and the court cited Lomaisia v Republic in support.
Proof of penetration
Penetration was proved beyond reasonable doubt by the complainant's clear and cogent account corroborated by medical evidence of pregnancy; a broken hymen was not the sole basis
The appellant argued that the finding of a broken hymen was insufficient and that DNA evidence was needed. The Court held that the complainant's testimony, together with the medical evidence of pregnancy, established penetration. Corroboration was not even required under Section 124 of the Evidence Act, yet medical corroboration existed here.
Right to legal representation under Article 50
The failure to inform the accused of his right to legal representation was not fatal where he was not incapacitated and suffered no prejudice
Following Owuor v Republic and the Supreme Court's decision in Charles Maina Gitonga v Republic, the Court noted the High Court had found the omission established but non-fatal. On the record, the appellant effectively cross-examined witnesses and advanced his defence, so no miscarriage of justice arose from the lack of representation.
Sentence
The 20-year sentence under Section 8(1) as read with Section 8(4) of the Sexual Offences Act was properly exercised and not manifestly excessive or unlawful
The appellant did not demonstrate that the trial court or the affirming High Court misdirected itself in sentencing, nor that the circumstances of the offence — the detention and defilement of a 13-year-old over an extended period — rendered the lawful maximum sentence excessive. The Court therefore declined to interfere.
Legal principles established
#- On a second appeal under section 361 of the Criminal Procedure Code, the Court of Appeal is confined to matters of law and cannot interfere with concurrent findings of fact unless those findings are based on no evidence, on a perversion of the evidence, or the courts below considered matters they ought not to have, or failed to consider matters they should have, or were plainly wrong
- A first-time ground of appeal (there, the propriety of voire dire examination) raised in the Court of Appeal is disfavoured where the trial record does not support it
- Failure by a trial court to inform an accused of the right to legal representation is not fatal where the accused suffered no prejudice or injustice
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Orders accordingly
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Voi
- Jurisdiction invoked
- Second appeal under Section 361(1) of the Criminal Procedure Code, confined to matters of law
Relief refused
#Setting aside of conviction on the ground of improper voire dire examination
Ground raised for the first time on second appeal and the record shows the complainant was examined and found competent to give sworn testimony
Setting aside of conviction on the ground that penetration was not proved
Penetration was proven by the complainant's testimony corroborated by medical evidence of pregnancy; concurrent findings of fact could not be disturbed
Relief for the alleged violation of the right to legal representation under Article 50
The appellant did not raise the matter at trial, effectively cross-examined witnesses and advanced his defence, and showed no prejudice or injustice
Interference with the sentence of 20 years' imprisonment
No demonstration that the sentence was manifestly excessive or unlawful
Costs
No order as to costs 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.
By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law.
As this court has stated many times before, 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
In conclusion we find no merit in this appeal. The appeal is hereby dismissed in its entirety.
Orders accordingly.
Issues in the judgment
#The judgment does not state the case number of the present appeal or the first appeal, nor a neutral citation
The judgment refers to the corroborative medical evidence as tendered by PW8, but the medical evidence was tendered by PW7, Dr. Joto Nyawa, the Medical Officer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tandara v Republic (Criminal Appeal E013 of 2024) [2026] KECA 324 (KLR)", Case Analysis (2026). Criminal Appeal (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/324/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.