Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 28 of 2007 (second appeal to the Court of Appeal)· [2009] KECA 435 (KLR)

J.O.O v Republic (Criminal Appeal 350 of 2008) [2009] KECA 435 (KLR)

Court of Appeal of Kenya
9 October 2009
3,835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that a child witness's sworn evidence needs no corroboration, and a missed voire dire won't undo a conviction if other solid evidence exists.

What this practically means

#

Executive summary

#
The appellant was convicted by the Principal Magistrate's Court at Siaya (Criminal Case No. 1149 of 2005) of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, on evidence that he led a gang of robbers into the complainant's house at Ugunja on 31 October 2005. Three young witnesses - C (aged 13), J 2 (aged 15) and A (aged 17) - identified him as the person who opened the door for the gang, in lantern light and during an encounter lasting over 20 minutes, and each identified him at a subsequent identification parade. His first appeal to the High Court (Mwera and Karanja JJ.) was dismissed on 30 July 2008 despite concession by State Counsel. On second appeal, the Court of Appeal dismissed all six grounds. It held there was no violation of section 72(3) of the Constitution as the appellant was produced in court 13 days after arrest, within the 14-day limit. It held that 'child of tender years' has no statutory definition for purposes of section 19 of the Oaths and Statutory Declarations Act, the Children Act definition not necessarily applying in Penal Code cases; J 2 and A were not children of tender years. Corroboration is legally required only for unsworn evidence of a child of tender years; sworn evidence requires no corroboration in law but a warning. Even discounting C's evidence taken without voire dire, the sworn evidence of J 2 and A, together with corroborative evidence of the complainant and the appellant's flight from police, sustained the conviction. The first appellate court's decision was affirmed and the appeal dismissed.

Key legal issues

#
01

Section 72(3) constitutional violation - delay in production in court

Holding

No violation: the appellant was produced in court 13 days after arrest, within the 14-day limit applicable to capital offences.

Reasoning

The arresting officer's estimate placed arrest on or about 15 November 2005; the appellant's own evidence fixed arrest at 16 November 2005 and production in court on 29 November 2005, being 13 days. Section 72(3) permits detention beyond fourteen days only with an acceptable explanation; here there was no delay at all, so the ground was ill-advised and should not have been preferred.

p. 4
02

Definition of a child of tender years under section 19 of the Oaths and Statutory Declarations Act

Holding

There is no statutory definition for purposes of section 19; it is a matter of the good sense of the court, and the Children Act definition (under ten years) does not necessarily apply in Penal Code cases.

Reasoning

The Children Act, 2001 defines a child of tender years as one under ten years, but that definition is for purposes of that Act. Section 19 of the Oaths and Statutory Declarations Act contains no definition. Following Johnson Muiruri v Republic, whether a child is of tender years is a matter of the good sense of the court. On the evidence, J 2 (15) and A (17) were young persons, not children of tender years, and the trial magistrate was properly entitled to treat them as such.

p. 5
03

Effect of sworn evidence of child witnesses and need for corroboration

Holding

Sworn evidence of a child of tender years after voire dire requires no corroboration in law, though the court must warn itself of the danger of convicting without corroboration; unsworn evidence must be corroborated.

Reasoning

Relying on Johnson Muiruri and Kibangeny Arap Kolil, the court held corroboration is legally essential only for unsworn evidence of a child of tender years. Even if C's evidence were ignored for want of voire dire, J 2 and A gave firm sworn identification evidence, being with the appellant for over 20 minutes with lantern light, and identified him at a properly conducted parade. In any event, the complainant's evidence of the direction of attack and the appellant's flight from police corroborated the material aspects.

p. 6
04

Failure to analyse and evaluate evidence by the first appellate court; inconsistencies in identification

Holding

Both grounds failed: no aspect of unevaluated evidence was demonstrated, and no inconsistencies or irregularities in the identification evidence were deciphered.

Reasoning

Counsel did not point to any aspect of the evidence that was not analysed or re-evaluated. On identification, the court found the evidence of J 2 and A - who saw the appellant in lantern light for over 20 minutes and identified him at an identification parade properly organized by I.P. Jack Wafula - concurrently accepted by the trial court and the superior court, was ample and reliable, and nothing was shown to have marred it.

p. 6

Legal principles established

#
  • There is no statutory definition of 'child of tender years' for purposes of section 19 of the Oaths and Statutory Declarations Act; it is a matter of the good sense of the Court.
  • Corroboration of the evidence of a child of tender years is legally required only where the child gives unsworn evidence; sworn evidence after voire dire needs no corroboration in law but the court must warn itself of the danger of convicting without corroboration.
  • The definition of 'child of tender years' in section 2 of the Children Act (under ten years) does not necessarily apply to criminal trials under the Penal Code involving section 19 of the Oaths and Statutory Declarations Act.
  • Failure to conduct voire dire examination of a child witness will not occasion a miscarriage of justice where ample independent evidence, properly taken, still supports the conviction.

Court orders

#
  1. 1.The appeal is dismissed

Authorities

#

Legislation

  • Penal Codesection 296(2)
  • Constitution of Kenyasection 72(3)
  • Oaths and Statutory Declarations Act (Cap 15)section 19
  • Evidence Act (Cap 80)section 124
  • Children Act, 2001 (Act No. 8 of 2001)section 2

Cases cited (3)

  • Johnson Muiruri vs. Republic
    (1983) KLR 445
  • Kinyua v. Republic
    (2002) KLR 256
  • Kibangeny Arap Kolil v. R
    (1959) EA 92
On appeal from
High Court of Kenya (superior court, first appellate court)
Criminal Appeal No. 28 of 2007
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable provisions of the Criminal Procedure Code (appeal from the High Court's dismissal of the first appeal in a capital case)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "J.O.O v Republic (Criminal Appeal 350 of 2008) [2009] KECA 435 (KLR)", Case Analysis (2009). Criminal Appeal No. 28 of 2007 (second appeal to the Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/435/eng@2009-10-09

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