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Court of AppealAllowedCriminal Appeal No. 52 of 2015· [2017] KECA 793 (KLR)

John Kinyua Nathan v Republic

Court of Appeal of Kenya
25 January 2017
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
3,325 words in judgment
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The bottom line

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Kenya's Court of Appeal quashed a defilement conviction because prosecutors never called the child complainant, leaving only hearsay evidence.

What this practically means

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Executive summary

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The appellant, serving a life sentence for defilement of a girl aged three and a half years contrary to Section 8(1) of the Sexual Offences Act, appealed to the Court of Appeal at Nyeri against the concurrent findings of the trial magistrate and the High Court on first appeal. On a second appeal, only matters of law were open under Section 361 of the Criminal Procedure Code. The principal legal issue was the prosecution's failure to call the child complainant, any eye witness, or the neighbour Lydia, and the High Court's ruling that a child of tender years need not testify at all. The Court held that the High Court had misapplied M.M. v Republic by citing a passage out of context: that case concerned a child actually called and stood down after voire dire, supported by direct independent eyewitness evidence from the mother. The Court reaffirmed that a child capable of communicating may testify directly or through a formally appointed intermediary under Sections 31 and 32 of the SOA and Article 50(7) of the Constitution, subject to voire dire under Section 19 of the Oaths and Statutory Declarations Act. Since the child was a necessary witness and no reason was given for her omission, the mother's account was at best hearsay; the circumstantial evidence was tenuous and the defence peremptorily dismissed. The Court allowed the appeal, quashed the conviction, set aside the life sentence, and ordered the appellant's immediate release unless otherwise lawfully held.

Key legal issues

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01

Failure to call the child complainant as a witness

Holding

The child was a necessary witness whose omission, unexplained, undermined the conviction; the mother's report of the child's complaint was hearsay.

Reasoning

The child could identify the perpetrator and indicate vulnerability, both crucial issues. No reason was given for not calling her and the trial court made no finding on it. The High Court misdirected itself by holding a child of tender years need never testify, misapplying M.M. v Republic where the child had in fact been called and stood down after voire dire.

p. 5
02

Competence and compellability of child witnesses

Holding

Section 125 of the Evidence Act renders all persons competent to testify subject to capacity; a child's capacity is tested by voire dire under Section 19 of the Oaths and Statutory Declarations Act, and intermediaries under Sections 31 and 32 SOA require a formal declaration process.

Reasoning

The court re-examined M.M. v Republic in extenso, holding the High Court cited it out of context. The MM passage about miscarriage of justice concerned very young children who cannot speak, not a blanket exemption. The prosecution must ascertain vulnerability and apply for an intermediary appointment before testimony.

p. 5
03

Adverse inference from uncalled witnesses

Holding

Bukenya v Uganda applies: an adverse inference arises only where the evidence called is inadequate or barely adequate; here it was not drawn because the court found the evidence insufficient overall.

Reasoning

The court restated the Bukenya principles and clarified that where evidence tendered is sufficient there is no adverse inference. In this case the omissions, combined with tenuous circumstantial evidence and the uncorroborated portions of PW2's evidence, meant the conviction could not stand.

p. 3
04

Dismissal of the defence

Holding

The peremptory dismissal of the appellant's defence was improper; the defence of a marital grudge was plausible on the cross-examination of PW2.

Reasoning

PW2 admitted sleeping with the appellant on the material night; the investigating officer made no reference to any disappearance; there was no evidence the appellant was not arrested from the same home. The circumstantial evidence of flight under Section 33 SOA was tenuous.

p. 5

Legal principles established

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  • On a second appeal only matters of law fall for consideration and concurrent findings of fact are not interfered with absent misapprehension of evidence.
  • The prosecution need not call a superfluity of witnesses, but where the evidence called is barely adequate the court may infer the evidence of uncalled witnesses would have been adverse to the prosecution.
  • A child of tender years is not automatically relieved of testifying; capacity is determined through voire dire, and a child capable of communicating may testify directly or through a duly appointed intermediary.
  • Where the complainant is a necessary witness and is not called without reason, the mother's account of the child's complaint is at best hearsay.

Court orders

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  1. 1.Conviction of the appellant quashed
  2. 2.Sentence imposed on the appellant set aside
  3. 3.Appellant set at liberty forthwith unless otherwise lawfully held

Authorities

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Legislation

  • Sexual Offences ActSection 8(1)
  • Sexual Offences ActSection 2
  • Sexual Offences ActSection 31
  • Sexual Offences ActSection 32
  • Sexual Offences ActSection 33
  • Sexual Offences ActSection 20
  • Sexual Offences ActSection 22
  • Criminal Procedure CodeSection 361
  • Evidence ActSection 125
  • Evidence ActSection 143
  • Constitution of KenyaArticle 50(7)
  • Oaths and Statutory Declarations ActSection 19
  • Children Actnull
  • Witness Protection Actnull
  • Victim Protection Actnull

Cases cited (4)

  • M. M. vs Republic
    [2014] eKLR

    Child of tender years need not testify; parents' evidence with medical evidence may suffice; intermediary procedure

  • Bukenya & Others v. Uganda
    [1972] EA 549

    Prosecution must call all necessary witnesses; adverse inference where evidence barely adequate

  • Robinson Tole Mwakuyanda V. R.
    H. C. Cr. Appeal No. 227 of 2007

    Example of a child victim aged six months who cannot speak

  • Director of Public Prosecutions, Transvaal versus Minister For Justice and Constitutional Development & Others
    Case CCT 36/08 [2009] ZACC 8

    Comparative reforms protecting child witnesses from traumatic testimony

On appeal from
High Court of Kenya at Embu
H.C. Cr. A. No. 175 of 2012
Jurisdiction invoked
Section 361 of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "John Kinyua Nathan v Republic", Case Analysis (2017). Criminal Appeal No. 52 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/793/eng@2017-01-25

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