REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A HIGH COURT CRIMINAL APPEAL NO. 3 OF 2012 GEORGE MAINA MWANIKI………………………..APPELLANT VERSUS REPUBLIC ………………………………………….RESPONDENT (Being an appeal from a conviction and sentence of the Senior Resident Magistrates Court Criminal Case No. 367 of 2009 at Kangema (Hon. D. Orimba) dated 11th March, 2010) JUDGMENT The appellant was charged in the Kangema Magistrates’ Court Criminal Case No. 367 of 2009 with the offence of defilement of a girl under the age of 11 years contrary to section 8(1) (2) of the Sexual Offences Act, No.3 of 2006. According to the particulars of the offence, on the 5 th November 2009 in Murang’a District within central province, the appellant defiled M N M a girl under the age of eleven years. In the alternative, the appellant was charged with the offence of indecent assault contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. It was alleged that on the 5th November, 2009 in Murang’a District within Central Province the appellant intentionally and unlawfully “did indecent at (sic) MNM by touching her private parts namely vagina breasts(sic).” After the trial the appellant was convicted of the main charge of defilement and sentenced to serve life imprisonment. The appellant has appealed to this court against the judgment of the learned magistrate challenging both the conviction and sentence; his grounds of appeal in his amended petition dated 13th October, 2012 are that the learned magistrate:1. erred in law by failing to hold that the appellant’s constitutional rights had been violated; 2. erred in law and in fact by failing to observe that PW1 and her brother could not be able to identify the assailant; 3. erred in law by failing to hold that the medical evidence was not conclusive; 4. erred in law by failing to hold prosecution evidence on record was contradictory; 5. erred in law by failing to hold PW1’s brother never testified. In order to appreciate the appellant’s grounds of appeal and by extension, whether the learned magistrate arrived at the correct decision, it is necessary to evaluate the evidence, in its entirety, as presented at the trial court. As always, this court, as the first appellate court, is under a legal obligation to reconsider the evidence, evaluate it and come to its own conclusions bearing in mind that in arriving at its decision, the
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magistrates’ court had the advantage, which this court does not have, of hearing and seeing the witnesses. In the case of Okeno versus Republic (1972) EA 32 the Court of Appeal had this to say on this issue:“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrates’ findings can be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”(See page 36). I shall proceed on this footing. From the learned magistrate’s record, it is clear from the complainant’s testimony that, the complainant, MNM (PW1) who was then aged 9, her younger brother Waithaka and her father, were all in their house on the night of 5th November, 2009. Her father asked her to go to sleep; she obliged and did go to sleep with her brother Waithaka. Sometimes after going to bed, she heard what the learned magistrate noted in the record as a “commotion on the roof”. Later, it is not clear after how long, somebody removed her inner wear and inserted something into her vagina. The complainant testified she felt pain and she cried. Initially, the complainant testified, she did not know the person but after her brother Waithaka flashed a torch she saw and identified the appellant as the person who must have inserted something in her vagina. She said that the appellant was a person known to her before because he was their neighbour. The appellant, the complainant testified, jumped out of the window when her father came back to the house. She said that she is the one who opened the door for her father whom she described as drunk and therefore took no action even after the complainant reported to him what had happened to her that night. The complainant’s mother was living separately from her father but she happened to have been working in the same school where the complainant was learning. According to the complainant, when she reported to school the following day, she told her mother what had happened. Her mother took her to Kihoya police station where she reported the matter and was issued with a P3 form. Upon cross-examination, the witness testified that when the appellant broke into the house through the window, her father was not there. She said that her brother flashed the torch on the appellant’s face. The following morning, her father prepared breakfast and took her to school. The complainant’s mother, HWM (PW2) gave evidence that she has three children of whom the complainant is the eldest. She also confirmed that she worked at Kanini Annex Academy where the complainant was as a pupil in class 3. The school was next to her husband’s house. According to HWN (PW2), on 10th November, 2009 she sent her son JW to go back home to find out whether her husband was there; W obliged and came back to report to her mother at school that her husband was not at home. She then sneaked to the house and quickly noticed that its window was open and some of her utensils were missing. She went back to school and took the children home. It is then that she suspected that there is something wrong with the complainant. Upon interrogating her, she opened up and informed her mother that the appellant had defiled her. This witness checked her daughter and noticed that her private parts were swollen. She reported the matter to the police and took the complainant to the hospital. She confirmed that the accused was arrested on 11th November, 2009. When she was cross-examined by the Appellant, HWM (PW2) said that she had been informed that on the material day, the appellant and her husband initially went out to drink together; they later came back, had meals together at her husband’s house and though her husband escorted the appellant away the appellant is alleged to have come back and defiled the complainant. The witness testified her husband was also arrested and locked up in the police cell in connection with the offence for which the appellant was
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charged and convicted. Corporal Simon Ngare (PW3), who was attached to Kihoya Administration Police post, testified that on the 10th October, 2009 he received a report from the complainant who was then accompanied by her mother, HWM (PW2) to the effect that she had been defiled by the appellant on 5 th November 2010. The learned magistrate must have erroneously recorded the date of 10th October, 2009 as the date the witness received the report since the offence was committed was much later. Nevertheless, this witness said that he gave the complainant a letter to go for treatment. On her part, Police Constable Joyline Opanga (PW4) attached to Kangema police station stated that she was on duty on 10 th November, 2009 when Corporal Simon Ngare came accompanied by the appellant along with the complainant and the mother. She booked the appellant and issued the complainant with a P3 form. Although this witness said that she took a statement from the complainant’s brother, he never testified. The statement itself is marked as “exhibit 3” but there is nothing on record to suggest that it was admitted as an exhibit. The clinical officer who examined the complainant was only referred to in the proceedings as Madam Lucy; she did not testify but the P3 form which she filled and was admitted in evidence as part of the exhibits was produced by Njoroge Martin Waweru (PW5). This witness was based at Kangema subdistrict hospital and he confirmed that Madam Lucy was his colleague at work and that he was familiar with her handwriting. According to her findings, there was laceration on the part of the complainant’s private parts, her hymen was broken and had a blood vaginal discharge. There was evidence of vaginal penetration but there was no sign of spermatozoa or infection of HIV Aids. On cross-examination the witness said that a victim of sexual offence ought to be treated immediately though the complainant was examined six days after the alleged sexual attack. The appellant gave a sworn testimony and testified that he is a barber and that he was arrested and locked up in the police cells on 9th November, 2009; later one M, the father of the complainant was also detained with him in the cells though he was later released under circumstances which the appellant could not understand. The appellant said that he knew M because he was his client; he also confirmed that the complainant knew him since he had also shaved her on several occasions. He denied having ever been at M’s home or having been with him on the material evening as alleged. The complainant’s evidence was obviously critical in convicting the appellant and being that critical, this evidence either on its own or in combination with the testimony of other witnesses must have weighed heavily on the learned magistrate’s mind for him to have concluded that the charge against the appellant had been proved beyond reasonable doubt. This explains the learned magistrate’s remarks while convicting the appellant that:“The father of the complainant too drunk was informed what transpired but could not taken (sic) any action. It was the evidence of the complainant that her younger brother flashed the torch and they were able to identify the accused person. In evidence adduced I have not come across anything to suggest why the complainant and her brother would implicate the accused.” The record indicates that only the complainant testified; her brother’s evidence was never taken. In the premises, it is a clear case of misdirection for the learned magistrate to suggest in his judgment that he relied on the complainant’s brother’s evidence when such evidence was not admitted. The complainant herself was only 9 years old; she was a child of tender years as defined in the case of Kibangeny Arap Kolil versus Republic (1959) EA 92 where the court held that though there is no definition of a child of tender years in the Oaths and Statutory Declarations Act, such a child, could for purposes of section 19 of the Act be taken to mean, in the absence of any special circumstances, any child of any age or apparent age of under fourteen years. Section 19 of the Oaths and Declaration Act, provides the guidelines in taking the evidence of a child of tender years. It provides as follows:-
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“19. (1) Where in any proceedings before any court or person having by law or consent of the parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court , or such person as aforesaid, understands the nature of an oath, his evidence may be received, though not given upon oath, if , in the opinion of the court or such other person as aforesaid, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code, shall be deemed to be a deposition within the meaning of that section.” Section 233 of the Criminal Procedure Code has since been repealed but the essence of section 19(1) of the Oaths and Statutory Declarations Act, is that before a court admits the evidence of a witness of tender years it must first examine the witness to satisfy itself that either the witness understands the nature of an oath or, in the absence of such an understanding, the witness is possessed of sufficient intelligence and understands the duty of speaking the truth. This is the voire dire examination. In the case of Sakila versus Republic (1967) EA 403 the court said at page 406 that:“It is well established that before evidence of a person of tender years is admitted, a voire dire examination should be carried out in order that the court may satisfy itself that the witness is possessed of sufficient intelligence and that he understands the duty of speaking the truth in order to justify the reception of his evidence. And further that where it is clear that he understands the nature of the oath, his evidence may then be received on oath or affirmation. Where this procedure is not carried out and the evidence of a person of tender years is of a vital nature, it may be that that omission may occasion a miscarriage of justice.” There is no doubt from the record that the learned magistrate appreciated the requirement of a voire dire examination before admitting the complainant’s evidence; however, the manner in which he conducted the examination left a mark of doubt as to whether he succeeded in establishing that the witness was possessed of sufficient intelligence and that she understood the duty of speaking the truth to justify the admission of her evidence or whether she understood the nature of an oath or affirmation. The following conversation between the learned magistrate and the complainant illustrates the point I am making:Court: what is your name? Complainant: My name is MNM Court: How old are you Complainant: I am 9 years. Court: Which school do you attend? Complainant: I attend Kamini Annex Academy standard 3. Court: Do you know where you are? Complainant: I am in court for a case. Court: The complainant can be affirmed. Can one conclude, without any shadow of doubt, that after this short conversation the learned magistrate was clear in his mind that the complainant was possessed of sufficient intelligence and that she understood the duty of speaking the truth? Or, having chosen to affirm her was the learned magistrate satisfied from this conversation that the complainant understood the nature of an oath or an affirmation? I cannot discern any basis upon which I can answer any of these questions in the affirmative and possibly
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come to the same conclusion that the learned magistrate came to. None of the questions asked and neither is any of the answers given reveal that the complainant understood the nature of an oath or affirmation for that matter. The learned magistrate himself never made such a finding. In the case of Nyasani s/o Bichana versus Republic (1958) EA 190 the court intimated that where a judge receives unsworn evidence of a child, he must record in his notes that “the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth”. Similarly I would suppose that when the court choses to take evidence of a child on oath, the court must record that “the child understands the nature of an oath or affirmation” after the voire dire. The form or nature of a voire dire examination takes was also discussed in the case of Kibangeny Arap Kolil versus Republic (supra) the court said:“But the first duty of the court where the evidence of a child of tender years is sought to be given was made clear, namely to ascertain whether the child understands the nature of an oath, and to swear him only if he does. In the present case the learned trial judge, so far as appears from the record, made no such investigation before affirming either of the two boy witnesses. Such an investigation need not be a lengthy one, but it must be made, and when made, the trial judge ought to record it. His only note of any relevance upon the record was one written after the conclusion of the evidence of the elder of the two boys, and before calling the younger boy, that:“the witness appears to a boy of twelve to fourteen but answers intelligently” That is not enough. The investigation should precede the swearing and the evidence and should be directed to the particular question whether the child understands the nature of an oath rather than to the question of his general intelligence.” (underlining mine). Where this procedure is not strictly followed and the evidence of the child of tender years is of a material nature it may not be safe to convict in the absence of any other evidence. In Sakila versus Republic (supra) the court said at page 406 the court said:“Where this procedure is not carried out and the evidence of a person of tender years is of a vital nature, it may be that omission may occasion a miscarriage of justice…where there is no evidence other than that of the child of tender years who has not been properly examined the conviction cannot be sustained.” It has been demonstrated that there is little doubt that the complainant’s evidence was of a vital nature without which the appellant could not have been convicted. Having been admitted without due regard to rules on reception of evidence of a child of tender years the conviction cannot be sustained without occasioning a miscarriage of justice. Even assuming that the complainant was duly subjected to a proper voire dire, questions still linger on the credibility of the complainant’s evidence either on its own or in combination of the testimony of other witness. The complainant testified that after she was sexually attacked on the night of 5 th October, 2009, she reported to her father the same night; according to her, the father was too drunk to understand her or take any action on her allegations that night. She, however, confirmed that her father prepared breakfast and took her to school the following morning. One may legitimately ask why she did not remind him of what had happened to her that morning now that he appeared sober. Again, though she said that she reported the attack to her mother the day following the evening of the alleged attack, which would be the 6th November, 2009, her mother’s testimony contradicted this statement. According to her she noticed something unusual about her daughter on 10th November, 2009 and that it is only after she questioned complainant that she told her that the appellant had defiled her. The mother also told the court that she had been told the appellant had joined her husband for supper in his house on the night that the complainant was attacked but the complainant testified that it is only herself, her brother and her father who had shared a meal that evening; she never mentioned the presence of the appellant. These
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inconsistencies would, in my view, create a reasonable doubt as to whether the alleged attack took place on 5th November, 2009 or on the 9th November, 2009 and, more importantly, whether the appellant was the villain. In my humble view, the appellant should have been given the benefit of this doubt. The complainant’s mother’s evidence and the evidence of the clinical officer certainly corroborated the complaint’s evidence, assuming it was properly admitted, that she had been defiled. What that evidence did not corroborate, in my view, was that the appellant was the author of this crime. All that the complainant’s mother said about the appellant is what she was told which would not, for all intents and purposes, amount to corroboration. It is also quite curious that the complainant’s father in whose care the complainant and her brother had been left and therefore whose evidence would have shed some light on the events of the evening of 5 th November, 2009 was never called to testify. All we hear about him in the case against the appellant was that he was arrested and put in custody together with the appellant in connection with the attack on the complainant. The appellant testified and his evidence was not controverted that the complainant’s father was later released without any charges preferred against him. The complaint’s father could only have been arrested because he was a suspect because under the circumstances in which the complainant was defiled, there was opportunity and possibility that this man could have turned against his own daughter. This possibility would again, in my view, create a reasonable doubt as to whether it is the appellant that defiled the complainant. In the absence of any evidence to link the appellant with the offences for which he was charged and convicted and in the absence of corroboration of the available evidence against the appellant I am inclined to find that the conviction of the appellant is unsafe. Accordingly, I find that grounds 2, 3, 4 and 5 are merited of the appeal are merited. As for ground 1 of the appeal there is nothing on record to suggest that the delay in charging the appellant had any influence in the decision appealed against. That ground is unmerited. For the reasons have given, I would allow the appeal, quash the conviction and set aside the sentence. Accordingly, I order that the appellant be set free forthwith unless he is lawfully held. Signed, dated and delivered in open court this 1st day of November, 2013 Ngaah Jairus JUDGE
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