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Court of AppealDismissedCriminal Appeal 165 of 2006· [2006] KECA 336 (KLR)

Samson Oginga Ayieyo v Republic

Court of Appeal of Kenya
24 November 2006
ROR.S.C. OmoloSBS.E.O. BosireJOJ.W. Onyango-Otieno
3,810 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a child victim's truthful testimony alone can sustain a sexual offence conviction, with no corroboration required.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Omolo, Bosire and Onyango-Otieno, JJA) dismissed the appellant's second appeal against conviction for defilement of a girl under 16 years contrary to section 145(1) of the Penal Code. The appeal was argued on two fronts: first, that the trial court's voir dire examination of the 6-year-old complainant was defective because the magistrate made no express finding that she understood the oath or possessed sufficient intelligence; second, that the evidence of an alleged admission made to the complainant's mother was inadmissible under section 25A of the Evidence Act. On the first issue, the court held that a child of tender years, absent a statutory definition, means a child under fourteen, but adopted the Children Act 2001 definition of under ten, so section 19 of the Oaths and Statutory Declarations Act applied to the complainant. Nonetheless, the court found sufficient compliance with section 19: the magistrate's decision to receive the child's evidence after the voir dire permitted an inference that he was satisfied on the required matters. On the second issue, the court held that section 25A does not exclude admissions falling within res gestae under section 6 of the Evidence Act. Finally, the court held that under the proviso to section 124 of the Evidence Act, introduced by Act No 5 of 2003, a court may convict on the uncorroborated evidence of a child victim of a sexual offence if satisfied she is truthful; both courts below were so satisfied, and in any event the sworn evidence of the 12-year-old sister supplied corroboration. The concurrent findings of fact were not disturbed and the appeal was dismissed. The judgment was delivered pursuant to rule 32(2) of the Court of Appeal Rules, not having been signed by Onyango-Otieno JA.

Key legal issues

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01

Meaning of 'child of tender years' under section 19 of the Oaths and Statutory Declarations Act

Holding

Absent a statutory definition, it means a child under fourteen years, but the Children Act 2001 defines it as under ten; the complainant, aged 6, fell within both, so section 19 applied.

Reasoning

The court traced the Kibageny v R formulation of under fourteen years, rooted in the repealed Children and Young Persons Act, then adopted the Children Act 2001 definition of under ten years. Either way the 6-year-old complainant was a child of tender years, triggering the section 19 safeguards before receiving her evidence.

02

Sufficiency of the voir dire examination despite absence of a recorded finding

Holding

There was sufficient compliance with section 19 and general voir dire requirements; the decision to receive the evidence after the voir dire permitted an inference that the magistrate was satisfied.

Reasoning

The record showed the magistrate examined the child on age, schooling and truthfulness before receiving her evidence. Although no express finding was recorded on intelligence or understanding of the oath, the court held the investigation is for the benefit of the presiding officer, and the receipt of the evidence was sufficient material from which to infer satisfaction.

03

Admissibility of the alleged admission to PW3 under section 25A of the Evidence Act

Holding

Section 25A does not exclude admissions falling within res gestae under section 6 of the Evidence Act, so the evidence was admissible.

Reasoning

Section 25A, introduced by Act No 5 of 2003, bars confessions or admissions not made in court. However, the court held that absent an express exclusion, admissions so connected with the fact in issue as to form part of the same transaction remain relevant and admissible under section 6, which codifies the res gestae rule.

p. 7
04

Whether corroboration of the child complainant's evidence was necessary

Holding

No corroboration was necessary in law; under the proviso to section 124 the court could convict on the child's evidence alone if satisfied she was truthful, and in any event PW2's sworn evidence supplied corroboration.

Reasoning

The proviso to section 124, added by Act No 5 of 2003, permits conviction on the sole evidence of a child victim of a sexual offence where the court records reasons for finding the victim truthful. Both the trial magistrate and the first appellate court were satisfied the complainant was truthful, so the concurrent findings could not be disturbed; alternatively, PW2's evidence corroborated the account.

Legal principles established

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  • In the absence of special circumstances, a child of tender years for purposes of section 19 of the Oaths and Statutory Declarations Act means any child of an age or apparent age of under fourteen years, subject to the good sense of the court.
  • Where the trial court conducts a voir dire and then receives the child's evidence, an appellate court may infer the magistrate was satisfied as to intelligence and understanding even absent an express recorded finding.
  • Section 25A of the Evidence Act does not exclude admissions that form part of res gestae under section 6 of the Evidence Act.
  • Under the proviso to section 124 of the Evidence Act, a court may convict on the uncorroborated evidence of a child victim of a sexual offence if satisfied, for recorded reasons, that the victim is telling the truth.

Court orders

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  1. 1.The appellant's appeal is dismissed

Authorities

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Legislation

  • Penal Codesection 145(1)
  • Oaths and Statutory Declarations Actsection 19(1)
  • Evidence Actsection 6
  • Evidence Actsection 25A
  • Evidence Actsection 124
  • Children Act, 2001section 2
  • Children and Young Persons Act (repealed)definition of 'child'
  • Interpretation and General Provisions Actin general
  • Criminal Procedure Codesection 233
  • Court of Appeal Rulesrule 32(2)

Cases cited (6)

  • Kibageny v R
    [1959] EA 92

    Definition of 'child of tender years' as under fourteen years for section 19 purposes

  • Nyasani s/o Bichana v R
    [1958] EA 190

    Procedure of swearing the child once satisfied it understands the oath

  • Sakila v R
    [1967] EA 403

    First duty of the court to ascertain and record whether a witness is a child of tender years

  • Fransisio Matovu v R
    [1961] EA 260

    The voir dire investigation is conducted through questions asked of the child

  • R v Campbell
    [1956] 2 All ER 272

    Whether a child is of tender years is a matter of the good sense of the court

  • R v Sugruor
    [1940] 2 All ER 249

    A voir dire examination is necessary for the benefit of the presiding officer of the court

On appeal from
High Court of Kenya at Kisumu
H.C.CR.A. No. 42 of 2004
Jurisdiction invoked
Second appellate jurisdiction under the Court of Appeal Rules; appeal from High Court on appeal from Senior Resident Magistrate's Court, Nyando

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (24)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samson Oginga Ayieyo v Republic", Case Analysis (2006). Criminal Appeal 165 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/336/eng@2006-11-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.