The Court of Appeal has declined to reopen the case of Samson Mburia Gakono, leaving in place his life sentence after he failed to convince the judges that the conviction for defiling two minors was based on faulty evidence.
A three-judge bench sitting in Nairobi, comprising Justices Patrick Kiage, Rachel Ngetich and Stephen Radido, dismissed Gakono’s appeal after finding no legal reason to overturn the decisions made by the lower courts.
Gakono, who appeared before the appellate court in person, disputed the evidence that led to his conviction on two counts of defilement.
His main challenge was directed at the evidence given by the two minors, whose credibility he questioned during the appeal.
He claimed the minors had taken alcohol on the night in question, arguing that this affected their ability to identify the person responsible and understand what had taken place.
“According to the appellant, the minors’ mother and grandmother also acknowledged that the minors had informed them they had been given alcohol,” the court heard, with the appellant arguing the minors’ testimony was not credible.
The appellant also raised concerns about the evidence given by the minors’ mothers, pointing to the period between when the alleged incidents were reported and when the children were taken for medical attention.
“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.”
Gakono further argued that the prosecution had not provided enough evidence to support the conviction.
He also asked the court to reconsider the punishment imposed on him, arguing that life imprisonment was too severe for a person facing his first conviction.
He maintained that the sentence was harsh and excessive and went against constitutional provisions and the principles that courts are required to follow when sentencing offenders.
The Director of Public Prosecutions opposed the appeal and told the court that the High Court had correctly dealt with the requirements needed to prove the two defilement charges.
The prosecution also defended the sentence handed to Gakono, saying there was no reason for the appellate court to change it.
“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,” court records show.
After considering the arguments, the Court of Appeal said Gakono had not pointed to any error of law that would justify overturning the earlier decisions.
The judges said the lower courts had properly dealt with the main issues surrounding the charges, including identification, penetration and the credibility of the witnesses.
The bench also pointed out that Gakono was before it on a second appeal. This meant the judges were restricted to questions of law and could not simply revisit the facts of the case as if hearing the matter for the first time.
The court relied on precedence in explaining the limits placed on it when dealing with findings of fact made by the lower courts.
Citing precedence, the bench reiterated it cannot interfere with the decision of the superior court on facts unless demonstrated that the trial court and the first appellate court considered matters they ought not to, failed to consider matters they should have considered or were wrong in their decision.
The judges found that Gakono had not established that any of those circumstances applied to his case.
His appeal was therefore dismissed, meaning the conviction on the two counts of defilement and the life sentence remain in force.