Biruri v Republic (Criminal Appeal 4 of 2018) [2025] KECA 375 (KLR) (28 February 2025) (Judgment)

Facts

The appellant, Michael Makaya Biruri, was charged with attempted delement under section 9(1) of the Sexual Offences Act. The charges were amended to delement under section 8(1) of the Sexual Offences Act. The appellant pleaded not guilty and was convicted and sentenced to 30 years' imprisonment. The High Court upheld the conviction but enhanced the sentence to life imprisonment.

Issues

1. the High Court failed to properly analyze the evidence as the ingredients to the charges preferred against him were not proved beyond reasonable doubt
2. the evidence of the complainant failed to meet the threshold set out in section 124 of the Evidence Act
3. the first appellate court failed to consider his defence
4. the conviction upheld by the High Court was unsafe as it was marred with inconsistencies and contradictions
5. the learned judge incorrectly and improperly enhanced the sentence meted out to the appellant without a notice of enhancement and without a cross appeal being filed by the respondent

Reasoning

The court found that the High Court failed to properly analyze the evidence and that the sentence was enhanced without proper notice and without a cross appeal being filed by the respondent.

Outcome

The appellant is acquitted and released from custody.

Authorities cited