Kossam Ukiru v Republic [2014] KECA 391 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a fraud convict's second appeal, confirming that procedural defects which cause no real prejudice to a represented accused will not overturn a conviction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the charge sheet was defective and whether its defects and amendment occasioned a failure of justice
- 2.Whether there was breach of Articles 25(a), (c), 29(f), 49 and 50(2) of the Constitution of Kenya 2010
- 3.Whether the evidence of PW3, a minor, was properly taken without a voire dire examination under section 19(1) of the Oaths and Statutory Declarations Act
- 4.Whether there was non-compliance with sections 200 and 211 of the Criminal Procedure Code
- 5.Whether the prosecution's failure to call the arresting and investigating officers vitiated the conviction
- 6.Whether the sentence of 3 years imprisonment was cruel, inhuman or degrading punishment
Key legal issues
#Defective charge sheet and amendment
The defects in the charge sheet did not occasion a failure of justice and were curable under section 382 of the Criminal Procedure Code.
The charge sheet misstated the date the appellant was taken to court, was unstamped and was substituted without his knowledge. However, the appellant was represented by counsel throughout, suffered no prejudice, and all that changed on amendment was the figure in the charge sheet upon which evidence had been led. The court therefore agreed with the State that section 382 cured the defects and dismissed this ground.
Evidence of a minor without voire dire
A 16-year-old witness is not a child of tender years under the Oaths and Statutory Declarations Act, and no voire dire was required.
PW3 was 16 years old, a form two student, and his age was established before he testified. The trial magistrate determined he understood the nature of an oath. Under the Children Act, Cap 141, a child of tender years is a child under ten years. There was no improper exercise of discretion, so the ground challenging PW3's testimony was rejected.
Compliance with section 200 of the Criminal Procedure Code
The succeeding magistrate's informing the accused of his rights under section 200(3), coupled with counsel's election to proceed, constituted adequate compliance.
Onginjo (PM) heard all three prosecution witnesses before leaving the station, and Muneeni (PM) took over. The record shows the appellant was informed of the provisions of section 200 and his advocate asked to proceed from where the other court left. The appellant, alone or through counsel, never requested recall of any witness, and the court found his complaint wanting in candour.
Failure to call essential witnesses
Failure to call the arresting and investigating officers did not cause a failure of justice; calling witnesses is a matter for the prosecution's discretion absent ulterior motive.
Relying on section 143 of the Evidence Act and Bukenya v Uganda, the court held that calling witnesses is for the prosecution's discretion unless an ulterior motive is shown or the evidence presented discloses a weak case. Here the complainant, his wife and son proved the ingredients of the offence, the fact of arrest was not in doubt, and adjournments had been granted to avail the officers without success.
Alleged cruel, inhuman or degrading sentence
A sentence prescribed by the statute creating the offence cannot be described as cruel, inhuman or degrading, and severity of sentence is outside second appellate jurisdiction.
The sentence of 3 years was the maximum provided by section 315 of the Penal Code. Because the section itself prescribed the sentence, it could not amount to torture or cruel, inhuman or degrading punishment. Further, under the proviso to section 361(1)(a) of the Criminal Procedure Code, severity of sentence is a matter of fact reserved to the first appellate court.
Compliance with section 211 of the Criminal Procedure Code
Failure to record the exact words of section 211 did not prejudice an accused who was represented and unambiguously elected to give sworn evidence.
The record showed the magistrate noted that section 211 had been complied with and that sworn evidence was given. The appellant, ably represented, elected to give a sworn statement and his counsel then closed his case. The court held he was 'hanging on straws' and that no failure of justice arose from the summary recording.
Legal principles established
#- On a second appeal, only matters of law may be raised, and the severity of sentence is an issue of fact outside the jurisdiction of a second appellate court.
- Whether a witness should be called by the prosecution is a matter within the prosecution's discretion unless an ulterior motive is shown or the witnesses presented disclose a weak case.
- There is no statutory or judicial definition of 'a child of tender years' for purposes of the law of evidence; it is left to the discretion of the judge or magistrate, and under the Children Act it means a child under ten years.
Court orders
#- 1.The appeal is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- HCC No. 15 of 2011
- Jurisdiction invoked
- Section 361(1)(a) of the Criminal Procedure Code (second appeal on matters of law only)
Relief refused
#Quashing of conviction on account of defective charge sheet
Defects did not occasion a failure of justice and were curable under section 382 of the Criminal Procedure Code
Relief for breach of constitutional provisions
Rights of arrested persons under the 2010 Constitution are not retroactive and no fair-trial breach was shown
Exclusion of PW3's evidence for want of voire dire
PW3, aged 16, was not a child of tender years and the trial magistrate determined he understood the nature of an oath
Relief for non-compliance with section 200 of the Criminal Procedure Code
The succeeding magistrate informed the appellant of his rights and counsel elected to proceed
Relief for non-compliance with section 211 of the Criminal Procedure Code
The appellant was represented and unambiguously elected to give a sworn statement; no prejudice arose
Interference with sentence
Severity of sentence is a matter of fact outside the jurisdiction of a second appellate court
Costs
No costs order recorded in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the appeal is not meritorious and must be dismissed in its entirety. It is so ordered.
As this is a second Appeal, only matters of Law may be raised - see Section 361 (I) (a) of the Criminal Procedure Code.
severity of sentence is an issue of fact and is therefore outside our jurisdiction as a second appellate court
whether a witness should be called by the prosecution is a matter within their discretion unless ulterior motive is shown to be the reason for failure to call the witness or unless the witnesses presented disclose a weak case
there is no statutory or judicial definition of the phrase “a child of tender years for purposes of the law of evidence.” It is left to the discretion of the judge or magistrate
the same did not occasion a failure of justice and the appellant, who was represented, suffered no prejudice by reason of the defects
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kossam Ukiru v Republic [2014] KECA 391 (KLR)", Case Analysis (2014). Criminal Appeal No. 266 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/391/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.