Alex Mungai Waweru v Republic

Do you go to school.... I am in class 1 at [Particular Witheld] Primary School. Do you go to Sunday school ........... I do, my teacher is Esther Ben. What are you told will happen to children that tell the truth........ Nil Do you know the significance of an oath............ I don't know. 4. Upon conducting the above examination, the trial court ruled that PW3 should give unsworn statement. The appellant was tried, convicted and sentenced to serve life imprisonment. His appeal to the High Court was dismissed, hence this second appeal to this Court. 5. The thrust of the appeal is that the learned Judge erred in law in upholding the conviction of the appellant on evidence of PW3 who was a minor whereas the voire dire examination of PW3 did not establish her capacity to tell the truth; that the learned Judge erred in law by holding that the issue of the complainant's capacity to speak the truth was not a condition precedent to reception of her evidence but a condition that could be inferred/founded in the circumstances and conditions available for identification and prevailing opportunity or from the complainant's testimony; that the learned Judge erred in law by holding that the prosecution had proved its case beyond reasonable doubt. 6. At the hearing of the present appeal, learned counsel, Mr. J. N. Njuguna represented the appellant while the State was represented by the Senior Prosecution Counsel, Mr. Joel Omari. 7. Noting that the core of this appeal is the competence and admissibility of the testimony of the complainant, PW3, a child of tender years, we refrain from reproducing the facts and evidence tendered before the trial court till the admissibility of her testimony has been determined. Counsel for the appellant submitted that the voire dire examination that was conducted before PW3 testified was defective. It was submitted that the High Court properly found that the voire dire was improper but erred in failing to vitiate the testimony of PW3. 8. The learned Judge on the issue of voire dire examination expressed himself as follows: “From the record, voire dire examination was carried out and from the question and answers recorded, what the court established was the child's intelligence. When it came to the question of telling the truth, she offered no response. The trial magistrate did not record her assessment of this witness and only directed that she gives unsworn evidence - certainly this did not meet the test under Section 19 (1) of the Oaths and Statutory Declarations Act.... Would this alone justify quashing of the conviction? ....How did the trial magistrate determine that the child was telling the truth even about the identification when the child had been mum on the test regarding the duty to tell the truth? The answer is found in the circumstances and conditions available for identification and the prevailing opportunity... The child was very detailed in her evidence in court as to what happened. It was not very clear whether she was as detailed when she spoke to the police officer or whether the police officer decided to summarize what she said in one word ... that the child claimed to have been defiled.” 9. Counsel for the appellant, submitted that from the above quotation, it is clear that the learned Judge was alive to the requirement of voire dire examination and the duty of a child to speak the truth. However, the learned Judge erred in failing to appreciate that the duty of the child to speak the truth is a condition precedent before the minor can be allowed to testify; the inquiry and examination as to whether the minor can speak the truth should be conducted before taking the evidence of the minor; that in the present case, the learned Judge erred in upholding the conviction by the trial court when the record shows that the voire dire was improper. Counsel submitted that the case of Jotham Mugendi - v- R- H.C.CR.A No. 86 of 2008 was cited before the High Court wherein the court correctly held that before a minor can testify, the trial court must examine the minor to determine whether he/she understands the meaning of an oath or duty of telling the truth and his/her level of intelligence. That the learned Judge erred in failing to follow the decision in Mohammed - v- R 2 KLR (2005) where it was held that:

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“In conducting a voire dire, Section 9 (1) requires of the court to establish two matters, firstly, whether the child understands the nature of an oath, if the court comes to that conclusion, then it proceeds straight away to swear or affirm the child and record the evidence. Secondly, if the court is not satisfied on the first test, it should express its opinion not only that the child is possessed of sufficient intelligence to justify reception of the evidence, but also understands the duty of telling the truth, before proceeding to record the child's evidence.” 10. On the merits of the appeal, counsel for the appellant submitted that the learned Judge erred and failed to discharge the duty expected of the first appellate court to re-evaluate and analyse the evidence on record and to independently arrive at its own conclusion; that the High Court erred in failing to reevaluate and take into account the defence testimony. Counsel submitted that due to the improper voire dire examination, a retrial of the appellant should be ordered by this Court. In support of the submission, counsel cited the cases of Yusuf Sabwani Opicho - v- R, Nakuru Criminal Appeal No. 208 of 2008 and Robert Bob Okello - v - R, Kisumu Criminal Appeal No. 376 of 2008. 11. The State conceded the appeal on the ground that the voire dire examination was not proper. This Court was urged to order a retrial of the appellant. 12. We have considered the submission by the appellant and the State and we are of the view that the key issue in this appeal is whether the voire dire examination conducted by the trial court on PW3 was proper. In Nyasani s/o Gichana (1958) EA 190 it was stated that the duty of the Court under Section 19 of the Oaths and Statutory Declarations Act is to ascertain, first whether a child tendered as a wtiness understands the nature of an oath and if the finding of this question is in the negative, to satisfy itself that the child is possessed of sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth. In Kabangeny arap Kolil - v- R (1959) EA 92, it was stated that investigation of whether a child understands an oath or the duty to speak the truth should precede the swearing. In Kinyua - v- R (2002) 1 KLR 256 it was emphasized that the court should first ascertain whether the child understands the nature of an oath and such an investigation must be done by the court immediately the child witness appears in court; that if the child does not understand the nature of the oath, he or she is not necessarily disqualified from giving evidence; the court may still receive the evidence if it is satisfied upon investigation that the young person is possessed of sufficient intelligence and understands the duty of speaking the truth. This investigation must be done and when done, it must appear on record. 13. In John Muiruri - v- R, {1983} KLR 445, there was nothing in the record to show the manner in which the child was examined or the questions asked of the child and his response thereto. The learned trial magistrate simply recorded "I have examined the child. He is intelligent and speaks well though shy. He is understandable and eloquent. He will testify without giving oath but through the court clerk.” This Court held that this was a flagrant breach of the requirements of Section 19 of the Oaths and Statutory Declarations Act and a retrial was ordered. 14. In the instant case, the trial magistrate simply recorded "witness to give unsworn statement - a kikuyu interpreter to be availed." We have examined the record on the voire dire examination, it does not indicate if the trial court was satisfied that the minor, PW3, was a child possessed of sufficient intelligence and or understood the duty of speaking the truth. There was no response from PW3 when asked if she understood what will happen to children who tell the truth. The reason or basis upon which the trial court arrived at the decision to let PW3 give unsworn evidence is not indicated in the record. We concur with the conclusion by the learned Judge that the voire dire examination conducted by the trial court did not meet the test under Section 19 (1) of the Oaths and Statutory Declarations Act. Neither did the trial court express its opinion whether PW 3 was possessed of sufficient intelligence to justify reception of the evidence nor if PW 3 understood the duty of telling the truth. The record must reflect the opinion of the trial court; it is not open for the High Court or any appellate court to analyze the evidence on record to surmise if the trial court was satisfied that the minor had sufficient intelligence or understood the duty to tell the truth. It is the duty of the trial court to be satisfied and to record its opinion. We hold that the failure by the trial court to record its opinion vitiated the evidence of PW3 and consequently, the testimony given by PW3 was a nullity.

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15. PW3 is the complainant in the instant case and having found that the testimony of PW3 was a nullity we consider whether it is in the interest of justice to order a retrial of the appellant. Counsel for the appellant as well as the State had no objection to the retrial of the appellant. We indicated earlier that we refrain from analysing the merits of the appeal to determine whether the learned Judge erred in reevaluating the prosecution evidence and in considering the defence testimony. In view of the transgression in the procedure for the voire dire examination, we are minded of the general principle that a retrial will be ordered only when the original trial was illegal or defective and we must consider the defects in the original trial, the length of time that has elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction was entirely the prosecution's making or not and whether on a proper consideration of the admissible evidence or potentially admissible evidence, a conviction might result (see Fatehali Manji - V - R (1966) EA 343). 16. Taking all the foregoing factors into account, we note that the alleged offence was committed on 20th January, 2011 which is approximately four years ago. On the facts of this case, this is not a very long period of time; the mistake in the original trial is not the making of the prosecution and we see no prejudice occasioned to the appellant if a retrial is ordered. For these reasons, we are of the considered view that this is a case suitable for retrial. 17. We allow the appeal and set aside the conviction of the appellant and quash the life sentence imposed on him. The appellant shall be retried before a court of competent jurisdiction other than Honourable P. M. Mulwa, Principal Magistrate. As the appellant has been in custody since 23 rd November, 2011, we direct that the retrial be conducted expeditiously and to this end, the appellant shall be produced before the Chief Magistrate's Court within 14 days of this judgment for appropriate directions. Those shall be our orders. Dated and delivered at Nakuru this 27th day of November, 2014. ALNASHIR VISRAM ...................................... JUDGE OF APPEAL MARTHA KOOME ..................................... JUDGE OF APPEAL J. OTIENO-ODEK ..................................... JUDGE OF APPEAL I certify that this is a true copy of the original.

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DEPUTY REGISTRAR

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