The Court of Appeal in Nairobi has dismissed a man's bid to overturn his conviction and life sentence for defiling two minors.
Justices Patrick Kiage, Rachel Ngetich and Stephen Radido found no basis to interfere with the concurrent findings of the trial court and the High Court, which convicted Samson Mburia Gakono on two counts of defilement.
Gakono, who appeared in person, challenged the credibility of the minors' testimony, arguing that they had been intoxicated on the material night and were therefore unable to identify the perpetrator or comprehend the offence.
“According to the appellant, the minors’ mother and grandmother also acknowledged that the minors had informed them they had been given alcohol,” the judgment states, with the appellant arguing that the minors' testimony was not credible.
Gakono also challenged the sufficiency of the evidence presented.
“In this respect, the appellant asserted that the testimonies of the mothers of the minors were unreliable because of the lapse of time from when the minors reported to them and when the minors were taken for medical treatment and the fact that he (the appellant) was not subjected to medical examination despite the minors being found with infections.”
He also argued that the life sentence was harsh and excessive for a first-time offender and inconsistent with constitutional provisions and sentencing principles.
The Director of Public Prosecutions opposed the appeal, submitting that the High Court had properly addressed the three elements of the offence of defilement.
On sentence, the prosecution argued that the punishment imposed was lawful.
“The respondent urged the court not to interfere with the sentence because it was legal and proper and noted that different benches of the court had reached different conclusions on the question of life imprisonment,” the judgment states.
The Court of Appeal held that Gakono had failed to demonstrate any error of law that would justify interfering with the findings of the lower courts on identification, penetration and the credibility of the witnesses.
Delivering the judgment, the bench noted that it was hearing a second appeal and could therefore only determine matters of law, not fact.
Citing precedent, the judges reiterated that they could not interfere with concurrent findings of fact unless it was shown that the trial court and the first appellate court considered matters they should not have considered, failed to consider matters they should have considered, or otherwise reached the wrong decision.
On identification and penetration, the judges observed that both were primarily questions of fact and that the minors' testimony was corroborated by medical evidence.
“It is clear from the record that the subordinate court and the superior court made concurrent findings of fact that the appellant was identified by the minors,” the judges stated.
The court also found no basis to interfere with the lower courts' findings on witness credibility and the evidence.
On sentence, the judges held that the issue had already been settled by the High Court.
“Consequently, the appellant's ground of appeal that his sentence was harsh and excessive was not one that the Court of Appeal could lawfully determine as it fell outside the Court of Appeal's jurisdiction.”
The appeal was dismissed in its entirety, with the court finding it devoid of merit.
