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Court of AppealDismissedCriminal Appeal No. 70 of 2013· [2017] KECA 168 (KLR)

Jacob Odhiambo Nyangwara v Republic [2017] KECA 168 (KLR)

Court of Appeal of Kenya
20 July 2017
2,058 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a defilement appeal, confirming that technical mistakes in charges do not defeat convictions where the accused knew the offence faced.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A) dismissed a second appeal by Jacob Odhiambo Nyangwara against his conviction for the defilement of a seven-year-old girl and sentence of life imprisonment, as upheld by the High Court at Homa Bay (E.N. Maina, J) on 21st March 2013. The Court confined itself to questions of law, following Joseph Njoroge vs Republic. On the alleged defective charge sheet, which cited only section 8(2) of the Sexual Offences Act without section 8(1), the Court held the charge sufficient under section 134 of the Criminal Procedure Code because the offence and particulars adequately informed the appellant of the charge, and any omission was curable under section 382 without prejudice or miscarriage of justice. The Court found on the record that voire dire examination was properly conducted on the two child witnesses in accordance with section 19(1) of the Oaths and Statutory Declarations Act and the Nyasani line of authority, satisfying the trial court as to their intelligence and understanding of the duty to tell the truth. The complaint of a violated right to silence under Article 50 failed because the appellant voluntarily remained silent during the prosecution case, waived cross-examination, and testified only in his own defence. Finally, the age assessment report was properly produced: under section 77 of the Evidence Act the appellant could have summoned the doctor but neither applied nor objected, and the medical evidence, read with the eyewitness testimony, disclosed no contradictions. The appeal was dismissed in its entirety.

Key legal issues

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01

Whether omission of section 8(1) from a charge citing only section 8(2) of the Sexual Offences Act renders the charge defective

Holding

No. The charge was sufficient under section 134 of the Criminal Procedure Code because it stated the specific offence and gave adequate particulars, and any omission was curable under section 382 without prejudice or miscarriage of justice.

Reasoning

Section 134 requires a statement of the specific offence together with particulars giving reasonable information as to its nature. The offence of defilement was specified and the particulars sufficiently communicated its nature, so the appellant knew the charge he faced. Even if the omission of section 8(1) was a defect, section 382 cures errors that do not occasion prejudice or a miscarriage of justice, none of which was demonstrated here.

p. 3
02

Whether voire dire examination was conducted on the child witnesses FO and CA

Holding

Yes. The trial court, having established they were children of tender years aged 7 and 8, questioned them and satisfied itself as to their intelligence and understanding of the duty to speak the truth in line with section 19(1) of the Oaths and Statutory Declarations Act.

Reasoning

Section 19(1) of the Oaths and Statutory Declarations Act governs the receipt of evidence of children of tender years, and decisions such as Nyasani s/o Gichana require the court first to ascertain understanding of the oath and, failing that, sufficient intelligence and appreciation of the duty to tell the truth. The record showed the trial magistrate conducted exactly that inquiry, and the children's answers satisfied the court. The complaint was therefore unfounded.

p. 3
03

Whether the trial court violated the appellant's right to silence under Article 50 of the Constitution

Holding

No. The appellant voluntarily elected to remain silent throughout the prosecution case, waived cross-examination, and testified in his defence of his own volition.

Reasoning

Article 50 protects the right to remain silent and not to testify during proceedings, but it is a right belonging to the accused to exercise or waive. The appellant never indicated to the trial court that he wished to remain silent; he simply did not participate beyond giving his defence. That conduct was a voluntary exercise of choice, not a violation by the court.

p. 4
04

Whether the age assessment and medical reports were contradictory and improperly produced by an unqualified person

Holding

No. Section 77 of the Evidence Act permits such reports to be used in evidence, the appellant could have summoned the doctor but did not, and considered with all the witness evidence the reports contained no contradictions.

Reasoning

Section 77(1) of the Evidence Act allows reports of medical practitioners and like experts to be used in evidence, and section 77(3) allows the court to summon the maker if the accused applies. The appellant neither applied nor objected to production by PC Ombogo. On the substance, the injuries recorded in the medical report were consistent with the eyewitness accounts, and the trial and High Courts had found as a matter of fact that defilement occurred.

p. 4

Legal principles established

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  • Second appeals to the Court of Appeal lie on questions of law only
  • A charge that specifies the offence and gives particulars sufficient to inform the accused of the nature of the offence is not rendered defective by omission of a section that must be read with the one cited, and any such defect is curable under section 382 of the Criminal Procedure Code
  • Where an accused wants the maker of a medical or age assessment report to testify, he must apply to summon that maker; production of such a report by a police officer is lawful absent an objection

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The life imprisonment sentence and conviction as upheld by the High Court stand

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006Sections 8(1), 8(2), 11(1)
  • Criminal Procedure CodeSections 134, 214, 382
  • Constitution of KenyaArticle 50
  • Oaths and Statutory Declarations ActSection 19(1)
  • Evidence ActSections 77(1), 77(3)
  • Police Standing OrdersNot specified

Cases cited (3)

  • Joseph Njoroge vs Republic
    [1982] KLR 388
  • Nyasani s/o Gichana vs Republic
    (1958) EA 190
  • Fransisio Matovu vs Republic
    [1961] EA 260
On appeal from
High Court of Kenya at Homa Bay
H.C. Cr. A. No. 1 of 2013
Jurisdiction invoked
Second appeal on questions of law only under the Court of Appeal's appellate jurisdiction; see Joseph Njoroge vs Republic [1982] KLR 388 as cited in the judgment

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, "Jacob Odhiambo Nyangwara v Republic [2017] KECA 168 (KLR)", Case Analysis (2017). Criminal Appeal No. 70 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/168/eng@2017-07-20

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