Kangogo v Republic (Criminal Appeal 65 of 2018) [2023] KECA 28 (KLR)

Section 151 of the Criminal Procedure Code requires every witness in a criminal trial to be examined on oath, subject only to Section 19 of the Oaths and Statutory Declarations Act for children of tender years. The record was silent on whether PW4 was sworn; although recalled on August 31, 2010, PW4 did not testify that day. Following Samwel Muriithi Mwangi v Republic, conviction on possibly unsworn evidence cannot be cured under Section 382, so the evidence was a nullity and was expunged.

Section 200 concerns the situation where a magistrate who has recorded evidence ceases to exercise jurisdiction and is succeeded by another. The operative word is 'evidence'. The record showed Mr Owiti conducted the hearing from December 15, 2009 through to judgment, so the transition provisions and the Section 200(3) duty to inform the accused did not arise.

Section 143 of the Evidence Act requires no particular number of witnesses. Calling witnesses is a matter for the prosecution's discretion, interferable with only on proof of oblique motive. The court must consider the elements of the offence - age, penetration and identity - and assess whether the evidence adduced proved them. The appellant failed to show what the brother's evidence would have reinforced; a five-year-old may not have been capable of useful evidence.

The standard is proof beyond reasonable doubt. Age of 13 was proved by the medical report, birth certificate and PW5's evidence; penetration was corroborated by the medical report and PW2; identity was a matter of recognition of a known neighbour in daylight, corroborated by the bite mark on the appellant's left finger. The proviso to Section 124 of the Evidence Act permits conviction on the victim's evidence alone where the court is satisfied of the victim's truthfulness.

Section 361(1) bars a second appeal on severity of sentence except where the High Court enhanced the sentence or the subordinate court lacked power under Section 7. Neither applied. However, the trial court failed to take into account the period spent in lawful custody as required by Section 333(2) of the Criminal Procedure Code, following Ahamad Abolfathi Mohammed & another v Republic; the court corrected this error.