A A M v Republic [2016] KECA 146 (KLR)
The bottom line
#Kenya's Court of Appeal quashed a 15-year conviction because the trial judge never properly examined the child witness before hearing his evidence.
What this practically means
#Executive summary
#Key legal issues
#Alleged violation of Section 214 of the Criminal Procedure Code
The complaint failed because the appellant did not show any variance between the charge and the evidence or any defect in the charge inviting amendment or substitution.
Section 214 deals with variance between the charge and evidence and with amendment or substitution of a charge. The appellant's written submissions did not state that the prosecution evidence was at variance with the charge or that the charge was defective in substance or form. The court therefore agreed with the State that the ground had no merit and dismissed it.
Proof of the complainant's age
Age was not a particular to be proved for the offence under Section 162(a) of the Penal Code; proof of age is only a prerequisite for offences under the Sexual Offences Act such as defilement.
The particulars of the charge were that the appellant had carnal knowledge of the complainant against the order of nature; age was not part of the particulars. The court held the appellant was confusing the offence with defilement or rape under the Sexual Offences Act and that the authority of Kaingu Elias Kasomo relied upon was irrelevant because it concerned the Sexual Offences Act.
Failure to conduct voire dire examination of the child complainant
Voire dire examination is mandatory before receiving the evidence of a child of tender years; the trial court's casual ruling, without recording questions and answers, was in flagrant disregard of Section 19 of the Oaths and Statutory Declarations Act, vitiating the complainant's evidence and the conviction.
The purpose of voire dire is to establish whether the child understands the nature of the oath and the duty to tell the truth, and the inquiry must be recorded in question-and-answer form. The trial court merely observed that the child obviously did not understand the nature of an oath, without any recorded examination. The High Court misdirected itself by asking whether the magistrate relied on the evidence rather than whether the procedure was followed. With no independent corroborating evidence, the conviction could not stand.
Whether the prosecution case was a frame-up and whether the appellant's defence was considered
The court was satisfied that the criminal proceedings were designed to achieve ulterior motives by PW2 and PW3 to settle scores after the relationship soured; the complainant was used as a pawn.
The appellant's sworn evidence that PW2 had earlier framed him with a defilement complaint and threatened retribution was never challenged in cross-examination. PW3 arrested the appellant before medical results were known. The complainant himself said nobody did anything to him, PW2 never alluded to the appellant doing anything untoward, and the clinical officer's evidence and the P3 form were inconclusive on sodomy. This supported the ulterior-motive conclusion.
Legal principles established
#- Voire dire examination of a child of tender years is a mandatory requirement before his or her evidence is received, and the record must show how it was conducted; failure to comply is fatal to the conviction absent other independent evidence.
- On a second appeal the Court considers matters of law only and will not disturb concurrent findings of fact unless based on no evidence, on a perversion of the evidence, or on findings no reasonable tribunal properly directing itself would make.
- Proof of the age of the complainant is a prerequisite for offences under the Sexual Offences Act such as defilement, but not for the offence of carnal knowledge against the order of nature under Section 162(a) of the Penal Code.
Court orders
#- 1.The appeal is allowed
- 2.The conviction is quashed
- 3.The sentence imposed is set aside
- 4.The appellant should be set at liberty unless otherwise lawfully held
- On appeal from
- High Court at Mombasa
- Criminal Appeal No. 422 of 2010
- Jurisdiction invoked
- Section 361 of the Criminal Procedure Code (second appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "A A M v Republic [2016] KECA 146 (KLR)", Case Analysis (2016). Criminal Appeal No. 11 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/146/eng@2016-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.