Case Metadata |
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| Case Number: | Criminal Appeal 39 of 1980 |
|---|---|
| Parties: | Francis Charo Opo v Republic |
| Date Delivered: | 23 Oct 1980 |
| Case Class: | Criminal |
| Court: | Court of Appeal at Mombasa |
| Case Action: | Judgment |
| Judge(s): | Eric John Ewen Law, Cecil Henry Ethelwood Miller, Kenneth D Potter |
| Citation: | Francis Charo Opo v Republic [1980]eKLR |
| Advocates: | G Dulu State Counsel for the Republic. |
| Court Division: | Civil |
| County: | Mombasa |
| Advocates: | G Dulu State Counsel for the Republic. |
| Case Summary: | Francis Charo Opo v Republic Court of Appeal, Mombasa 23rd October 1980 Law, Miller & Potter JJ A Criminal Appeal No 39 of 1980 Criminal law – evidence – corroboration - what constitutes corroboration -proved opportunity to commit offence falsely denied. The proved opportunity to commit an offence may amount in particular circumstances to corroboration, if the accused has falsely denied the existence of the opportunity. Dictum of Ainsley J in R v Erunasani Sekoni s/o Eria (1947) 14 EACA 74, 76, applied. Case referred to in judgment:
Francis Charo Opo appealed to the Court of Appeal (Criminal Appeal No 39 of 1980) against his conviction and sentence for incest before Kneller J in the High Court, Mombasa, on 30th July 1980. The facts are set out in the judgment of the court. Advocate The appellant was present in person. G Dulu State Counsel for the Republic. |
| History Advocates: | One party or some parties represented |
| Case Outcome: | Appeal dismissed. |
| Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
IN THE COURT OF APPEAL
AT MOMBASA
(Coram: Law, Miller & Potter JJ A)
CRIMINAL APPEAL NO. 39 OF 1980
BETWEEN
FRANCIS CHARO OPO.........................APPELLANT
AND
REPUBLIC.............................................RESPONDENT
(Appeal against conviction and sentence by Kneller J in the High Court, Mombasa, on 30th July 1980)
JUDGMENT OF THE COURT
The appellant appeals from his conviction on a charge of incest under section 166(1) of the Penal Code, and the sentence of six years’ imprisonment passed on him. The complainant was a child of ten years of age at the time, and was admittedly the appellant’s daughter. As Kneller J clearly appreciated, the evidence of the child complainant needed corroboration; and doubly so in this case, as section 124 of the Evidence Act makes corroboration mandatory in the case of the evidence of a child of tender years, and corroboration is, as a rule of practice, required in all cases of a sexual nature involving a female complainant. The judge accepted as true, as we do on our evaluation, the evidence contained in a deposition given at the preliminary inquiry of a witness, Alice Kuvuna, who died before the trial. It is clear from that deposition that on the day of the crime, the complainant had been taken away by her father (the appellant) and was brought back home by him at 9.00 pm, by which time she had suffered the injuries, including the defilement proved by the medical evidence.
At the trial, and before this Court, the appellant’s defence was an alibi: he was at Kibarani, some distance away. We have come to the same conclusion as the judge; his alibi was false. The appellant was with the complainant on the material afternoon and had the opportunity to commit the offence; he has consistently lied in maintaining otherwise; and we think that these falsehoods give to the proved opportunity a complexion such as to amount in the circumstances of this case to corroboration; see R v Erunasani Sekoni s/o Eria (1947) 14 EACA 74, 76. For these reasons we are of the opinion that the appeal against conviction fails; and as regards sentence we do not think that the sentence of six years can possibly be described as excessive in the circumstances of this case. We order that this appeal be dismissed.
Appeal dismissed.
Dated and delivered at Mombasa this 23rd day of October 1980.
E.J.E LAW
……………......
JUDGE OF APPEAL
C.H.E MILLER
……………......
JUDGE OF APPEAL
K.D POTTER
……………......
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR
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