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Court of AppealDismissedCriminal Appeal 132 of 2004· [2007] KECA 447 (KLR)

Peter Irungu Mukurathi v Republic [2007] KECA 447 (KLR)

Court of Appeal of Kenya
13 February 2007
2,077 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a witness's status as a child of tender years is judged at trial, not when the offence happened.

What this practically means

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Executive summary

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The appellant was convicted of the murder of a four-year-old child, Githae Kamau, by the High Court at Nyeri (Okwengu J) and sentenced to death. On appeal, his principal ground was that the trial judge erred in relying on the sole evidence of Samuel, an eyewitness said to be a child of tender years, without sufficient corroboration. The Court of Appeal (Tunoi, O'Kubasu and Githinji JJA) held that the test for whether a witness is a child of tender years under section 124 of the Evidence Act is applied at the date of trial, not the date of the offence. Samuel and Stephen were 16 at trial, so the trial judge misdirected herself by applying section 19 of the Oaths and Statutory Declarations Act and section 124 of the Evidence Act to their evidence; they should have affirmed rather than given unsworn testimony. However, the court, reconsidering and re-evaluating the evidence as a first appellate court, found cogent and credible direct and circumstantial evidence against the appellant, who was arrested in possession of a blood-stained panga identified as the murder weapon, and held the irregularity occasioned no failure of justice. The court also rejected the belated insanity plea (presumption of sanity under section 11 of the Penal Code), declined to draw an adverse inference from the prosecution's failure to call three other boys (applying Bukenya v Uganda), and found the trial regularly conducted with two assessors. The appeal was dismissed in its entirety. This interpretation of section 124 now binds the High Court and subordinate courts.

Key legal issues

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01

Age for determining a child of tender years under section 124 of the Evidence Act

Holding

The relevant date is the date of trial, not the date of the offence; a witness aged 16 at trial is not a child of tender years and corroboration is not statutorily required.

Reasoning

The court distinguished the proviso to section 124 introduced by the Criminal Law (Amendment) Act No. 5 of 2006 and the Sexual Offences Act, which permits conviction on uncorroborated evidence only in sexual offence cases. In the absence of statutory definition, a child of tender years is generally one under 14, though the Children Act 2001 defines it as under ten. Since Samuel and Stephen were 16 at trial, the trial judge misdirected herself by applying both section 19 of the Oaths and Statutory Declarations Act and section 124 of the Evidence Act.

p. 3
02

Effect of the irregular reception of the evidence of Samuel and Stephen

Holding

The irregularity did not occasion a failure of justice given the cogent and credible evidence against the appellant.

Reasoning

The court, as a first appellate court, reconsidered and re-evaluated the evidence of Samuel, Stephen, Clement, Francis and the appellant. There was consistent evidence that the appellant was with the deceased before sending Stephen to fetch water, Samuel saw the appellant cutting the deceased with a panga, and the appellant was arrested in possession of a blood-stained panga identified as the murder weapon. The witnesses, though closely related to the appellant, gave credible evidence.

p. 4
03

Adverse inference for failure to call witnesses

Holding

No adverse inference was warranted because the prosecution evidence was not merely barely adequate.

Reasoning

The trial court found that the prosecution failed to call three other boys as witnesses but declined to draw an adverse inference. Relying on Bukenya and Others v Uganda, the Court of Appeal held that such an inference arises only where the evidence supporting the charge is barely adequate, which was not the case here given the direct and circumstantial evidence available.

p. 4
04

Regular conduct of trial with assessors

Holding

The trial was regularly conducted under section 298(1) of the Criminal Procedure Code with the aid of two assessors after the third was discharged.

Reasoning

The appellant challenged nothing specific about the assessor arrangement; the court was satisfied the trial complied with section 298(1) of the Criminal Procedure Code, which permits trial with assessors, and no prejudice was demonstrated.

p. 4

Legal principles established

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  • The relevant time for determining whether a witness is a child of tender years for purposes of section 124 of the Evidence Act is the date of the trial, not the date of the commission of the offence; if not a child of tender years at trial, section 124 does not apply and the evidence does not statutorily require corroboration.
  • A witness who is not a child of tender years but does not understand the nature of the oath should give evidence on affirmation.
  • An adverse inference from the prosecution's failure to call witnesses arises only where the evidence supporting the charge is barely adequate.

Court orders

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  1. 1.The appeal against conviction and sentence is dismissed

Authorities

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Legislation

  • Penal Codesection 203 as read with section 204
  • Penal Codesection 11
  • Evidence Actsection 124
  • Oaths and Statutory Declarations Act (CAP 15)section 19
  • The Criminal Law (Amendment) Act No. 5 of 2006proviso to section 124 of the Evidence Act
  • Sexual Offences ActAct No. 3 of 2006 (proviso to section 124 of the Evidence Act)
  • The Children Actsection 2
  • Criminal Procedure Codesection 298(1)

Cases cited (1)

  • Bukenya and Others vs. Uganda
    [1972] E.A. 549
On appeal from
High Court of Kenya at Nyeri
H.C.CR.C. NO. 114 OF 2003
Jurisdiction invoked
First appeal to the Court of Appeal against a conviction and sentence of the High Court (murder trial), under the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Irungu Mukurathi v Republic [2007] KECA 447 (KLR)", Case Analysis (2007). Criminal Appeal 132 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/447/eng@2007-02-13

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