David Otieno Alex Alias Mzee Mkubwa v Republic

As a second appellate court, the Court of Appeal does not re-evaluate evidence afresh. Its mandate is limited to questions of law, and findings of fact by the trial court and first appellate court stand unless it is shown they considered matters they ought not to have considered, ignored matters they should have considered, or were plainly wrong on the evidence as a whole. No such misdirection was demonstrated here.

Section 124 of the Evidence Act ordinarily requires corroboration of a child of tender years, but its proviso allows a court to rely solely on the victim's evidence where the child is the victim of a sexual offence, provided the court records reasons for believing the child is truthful. Here the complainant's direct evidence on penetration and identification was consistent, unshaken in cross-examination, and believed by both lower courts, corroborated additionally by medical evidence.

Defilement requires proof that the victim is a minor and that penetration occurred, partial penetration sufficing. The birth certificate established the victim was six years old, a fact not contested. The complainant's testimony, supported by the teachers, her mother, and the medical evidence of Dr. Oduol, was direct evidence, not circumstantial or hearsay, and the appellant's defence was a bare denial incapable of dislodging it.

The appellant challenged the mandatory life sentence as unconstitutional, a ground not raised before the High Court. Nonetheless, the Court held the sentence lawful, citing the Supreme Court's clarification in Muruatetu as reiterated in Republic v Mwangi (ISLA) that mandatory and minimum sentences under the Sexual Offences Act remain valid, and Republic v Manyeso affirming life imprisonment as a lawful punishment whose duration is a matter for the legislature.