[2014] KEHC 841 (KLR)
The court found that the prosecution failed to comply with its order to conduct an age assessment of the complainant, despite being granted several adjournments over approximately nine months. The only evidence produced was a birth certificate, contrary to the court's direction, and eventually, the complainant could...
Source-derived case information.
- Citation
- [2014] KEHC 841 (KLR)
- Parties
- Appellant: James Ooko Elkana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 24 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Age Assessment, Benefit of Doubt, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ooko Elkana
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecution established the age of the complainant as required by law.
- 2 Whether the benefit of doubt should be exercised in favour of the appellant due to lack of age assessment evidence.
Ratio Decidendi
The court found that the prosecution failed to comply with its order to conduct an age assessment of the complainant, despite being granted several adjournments over approximately nine months. The only evidence produced was a birth certificate, contrary to the court's direction, and eventually, the complainant could not be traced. The appellant's assertion regarding the complainant's age and relationship status was not challenged by the respondent. In these circumstances, the court held that the benefit of doubt as to the complainant's age must be exercised in favour of the appellant, rendering the conviction unsafe. The appeal was therefore allowed and the appellant set free unless...
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The appellant is set free unless lawfully held for another cause.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. 24 OF 2013
JAMES OOKO ELKANA..................................................................APPELLANT
VERSUS
REPUBLIC....................................................................................RESPONDENT
J U D G M E N T
FURTHER ORDERS
When the judgment in this case was delivered on 20-1-2014 the court ordered that age assessment be conducted in respect to the complainant. The state asked for more time severally and the court record clearly shows the time as 4-3-2014, 25-3-2014, 5-5-2014, 12-5-2014, 10-6-2014, 25-6-2014, 7-7-2014, 14-7-2014, 21-7-2014, 31-7-2014, 24-9-2004 and finally on 2-10-2014 the court refused its request. It means that the state was granted an aggregate of about 9 months to simply undertake age assessment of the complainant.
Apparently, on 21-7-2014 they brought in a birth certificate of the complainant but this was not the court's direction. On 31-7-2014 the learned state counsel told the court that the complainant cannot be traced.
From the above observation I respectfully do not think that the respondent is ready in any way to help this court arrive at a fair conclusion of this appeal. The nature of this matter does not warrant this court to arrive at a decision that is to say the least shaky and not anchored on the law.
Consequently, this court is left with no other option but to allow the appeal. There is no certainty as to the age of the complainant. The appellant alleges that she was 21 years and that she was his girlfriend and they were going to marry. This argument was never challengeg or countermanded by the respondent.
I do find that this is a clear case where the benefit of doubt ought to be exercised in favour of the appellant. I do exercise the same and set the appellant free unless lawfully held.
Dated, signed and delivered at Kisumu this 10th day of November, 2014.
H.K. CHEMITEI JUDGE