Ishmael Sewe Ouko v Republic

and when she asked her, PW 1 told her that she had left them in the appellant's house. PW 2 reported the matter to Maseno Police Station thereafter. 5. PW 3, a clinical officer, produced the medical report (P3 form) filled by another officer. According to the report, the officer examined PW 1 on 24th March 2008. He examined PW1's private parts and noted that the vagina was swollen with lacerations and there was a white discharge. The clinical officer opined that the lacerations and swollen vagina suggested forceful penetration. 6. PW 4, an administration police officer, confirmed that PW 2 reported that PW 1 was missing at 10.30pm at Nyahera AP Post and that she returned the following day at 11.00pm to confirm that PW1 had been found. When he went to arrest the appellant, he was accompanied by PW 1 and PW 2 who showed him the place and identified the appellant. While at the house, he recovered black panties under the appellant's bed which PW 1 identified as hers. 7. The appellant elected to give an unsworn statement. He denied the charges and stated that although he knew PW 1, who used to sell sugarcane at the market, he did buy sugar cane from her or defile her. He stated that on the material night he went home after work to sleep and was arrested the following day by AP officers after he was identified by PW 1 and PW 2. 8. The learned magistrate was convinced that the appellant had committed the offence and convicted him. Counsel for the respondent, Ms Osoro, supported the conviction and sentence and urged that the prosecution had proved all the elements of the offence of defilement. She submitted that the appellant was a person well known to PW 1 hence there was no case of mistaken identity. 9. To prove its case under section 8(1) of the Sexual Offences Act, the prosecution must show that the appellant did an act that amounted to penetration of a child. “Penetration” under section 2 of the Act means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 10. In his submissions, the appellant contended that the trial was vitiated as the learned magistrate did not conduct a voire dire. It is true that the Court did not conduct a voire dire but the law is that this does not necessarily render the trial a nullity. The law governing reception of the evidence of a child of tender years is to be found at section 19 of the Oaths and Statutory Declarations Act (Chapter 15 of the Laws of Kenya) which provides: 19(1) Where, in any proceedings before any court or person having by law or consent of 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, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, 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 (Cap. 75), shall be deemed to be a deposition within the meaning of that section. 10. Since PW 1 was estimated to be aged 11 years, she a child of tender years. The procedural prerequisite before reception of evidence of child of tender years under section 19 of the Act has been considered by the Court of Appeal in several cased among them Johnson Muiruri v Republic [1983] KLR 445 and Kinyua v Republic [2002] 1 KLR 256. The authorities show that if, after the voire dire examination, the trial court is satisfied that the child understands the nature of the oath, the court proceeds to swear the child and receives the evidence on oath. But if the court is not so satisfied, the unsworn evidence of the child may be received if, in the opinion of the court, the child possessed of sufficient intelligence and understands the duty of speaking the truth. 11. The authorities go further and establish that failure to follow the prescribed procedure does not necessarily vitiate the trial. In Patrick Kathurima v Republic CA NYR CR App. No. 131 of 2014 [2015]eKLR, the Court of Appeal observed as follows;

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The trial magistrates’ failure to reflect on the record the questions put to H.W. during the voir dire examination was not therefore per se fatal to the prosecution case. The sustainability or otherwise of the prosecutions’ case solely depended on whether the evidence on which it was anchored met the thresh hold of proof beyond reasonable doubt. 12. Following the principles, it is clear that since the voire dire examination was not carried out, I hold that the proper approach is consider PW 1’s testimony as unsworn testimony, evaluate it with the rest of the evidence to see whether a conviction can be sustained. 13. In this case, apart from PW1's unsworn testimony, there was other sufficient corroborating evidence to confirm that the appellant defiled PW 1. She went missing on the material night and when she returned home, not only did she narrate to PW 2 her ordeal but showed her the appellant’s house. A medical examination conducted that very night, confirmed that PW 1 has been sexually assaulted. Additionally, when PW 1 and PW 2 went with PW 4 to arrest the appellant, PW1's black panties were found under the appellant's bed. All this evidence leaves no doubt that there was penetration. Moreover, the appellant was well known to PW 1. The appellant had approached her a few days before he lured her to his place under the guise of paying her for the sugar cane he had purchased. PW 1 also identified him after he was arrested in the house where the incident took place. The appellant, in his unsworn statement put him at the scene of his incident and he confirmed that he knew her. The appellant's denial was, considering the prosecution evidence, mere moonshine. 14. The appellant raised other procedural issues in his submissions. His complaint that section 200 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) was not complied with has no basis as the case started de novo before Hon. Ongeri. He also complained that he was not given witness statements yet the record shows that before the trial an order was made directing that the appellant be provided with witness statements. He did not raise the issue further before the Court to show that the order was not complied with. 15. The final issue is that of age of the complainant. In Moses Nato Raphael v Republic NRB CA Criminal Appeal No. 169 of 2014[2015]eKLR the Court of Appeal held that; As long as there is evidence that the victim is below 18 years, the offence of defilement will be established. The age, which is actually the apparent age, only comes into play when it comes to sentencing. The contradictions in respect of the child’s age cannot therefore assist the appellant avoid criminal culpability. 16. It is not in doubt that the PW 1 was a child hence the offence of defilement was committed. The issue then is what was the apparent age of the child for purposes of sentence. The charge sheet stated that PW 1 was aged 11 years old while in her testimony, she stated she was 13 years which means she was 12 years when the offence took place. The age assessment in the P3 form stated that she was 12 years. The learned magistrate did not make a finding on the issue of age given the variation between the charge sheet and the evidence. The learned magistrate therefore imposed a life sentence based on the charge sheet. 17. I give the appellant the benefit of doubt and hold that there is sufficient evidence that PW 1 was 12 years old at the time the offence was committed. Under section 8(3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than 20 years. 18. I affirm the conviction but reduce the sentence to 20 years’ imprisonment running from the date of the conviction. DATED and DELIVERED at KISUMU this 30th day of November 2016 D.S. MAJANJA

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JUDGE Appellant in person. Ms Osoro, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.

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