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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCriminal Appeal No. 365 of 2012· [2014] KECA 204 (KLR)

Alex Mungai Waweru v Republic

Court of Appeal of Kenya
27 November 2014
2,235 words in judgment
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The bottom line

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Kenya's Court of Appeal overturned a life sentence because the trial court failed to properly examine and record its findings on a child witness before taking her testimony.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (sitting at Nakuru), comprising Visram, Koome and Otieno-Odek, JJ.A., allowed this second appeal against conviction for the defilement of a girl aged 5 1/2 years, contrary to Section 8(1) of the Sexual Offences Act. The single ground decisive of the appeal concerned the voire dire examination of the child complainant, PW3. The trial court had asked the child a few questions, including whether she knew what happens to children who tell the truth, to which she gave no answer, and then simply recorded that she would give an unsworn statement through a Kikuyu interpreter. The High Court (Omondi J.) had accepted that the voire dire did not meet the test under Section 19(1) of the Oaths and Statutory Declarations Act, but upheld the conviction by inferring the child's appreciation of the duty to tell the truth from the circumstances of identification and the detail of her testimony. The Court of Appeal held that this was impermissible: it is the duty of the trial court to be satisfied of a child witness's sufficient intelligence and understanding of the duty to tell the truth and to record its opinion on the record, and no appellate court may surmise that satisfaction from the evidence. The failure to record the opinion vitiated PW3's testimony, rendering it a nullity. The State conceded the appeal and did not oppose a retrial. Applying the Fatehali Manji principles, the court found the case suitable for retrial: the error was not the prosecution's making, only about four years had elapsed, and no prejudice would be occasioned to the appellant. The conviction was set aside and the life sentence quashed, with a retrial ordered before a court of competent jurisdiction other than the original trial magistrate, and directions that the appellant be produced before the Chief Magistrate's Court within 14 days.

Key legal issues

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01

Proper conduct and recording of voire dire examination of a child witness

Holding

The voire dire examination of PW3 did not meet the test under Section 19(1) of the Oaths and Statutory Declarations Act; the trial court failed to record its opinion that the child had sufficient intelligence and understood the duty to tell the truth.

Reasoning

The trial magistrate merely recorded 'witness to give unsworn statement - a kikuyu interpreter to be availed' without any indication of satisfaction as to the child's intelligence or appreciation of the duty to speak the truth. Precedents require the investigation to precede swearing and to appear on the record. Because the child answered nothing when asked about the consequences of telling the truth, and no opinion was recorded, the testimony could not stand.

p. 3
02

Whether a retrial should be ordered

Holding

A retrial was ordered because the original trial was defective, the error was not the prosecution's making, the elapsed time was not excessive and a conviction might result on properly admitted evidence.

Reasoning

Applying the Fatehali Manji principles, the court weighed the defects in the original trial, the approximately four years elapsed since the offence, whether the mistake lay with the prosecution, and whether a conviction might result on admissible evidence. Both counsel and the State did not object to a retrial. The court found no prejudice to the appellant.

p. 4

Legal principles established

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  • In a voire dire examination of a child of tender years, the trial court must itself ascertain and record its opinion whether the child is possessed of sufficient intelligence and understands the duty of telling the truth; an appellate court may not surmise the trial court's satisfaction from the evidence.
  • Failure by a trial court to conduct and record a proper voire dire examination vitiates the evidence of a child witness, rendering the testimony a nullity.

Court orders

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  1. 1.The appeal is allowed and the conviction of the appellant is set aside and the life sentence imposed on him is quashed
  2. 2.The appellant shall be retried before a court of competent jurisdiction other than Honourable P. M. Mulwa, Principal Magistrate
  3. 3.The retrial be conducted expeditiously and the appellant shall be produced before the Chief Magistrate's Court within 14 days of the judgment for appropriate directions
On appeal from
High Court of Kenya at Nakuru
H.C.CR. A No. 290 of 2011
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code (appellate jurisdiction over appeals from the High Court in criminal matters)

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, "Alex Mungai Waweru v Republic", Case Analysis (2014). Criminal Appeal No. 365 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/204/eng@2014-11-27

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