Joseph Karaimu Muhumuki v Republic

9. The appellant prayed that the appeal be allowed. RESPONDENTS SUBMISSIONS 10. In response; that it was true that no ‘voire dire’ examination was conducted because at that time the complainant was not a child of tender years; the court considered her age and concluded that she could take an oath; 11. Insufficient evidence: that the complainant disappeared from and went to live at the appellants home as her husband from 1/04/2013 to 24/05/13 a total of 54 days; there was a confession that they were living as husband and wife; 12. The complainant knew the appellant as they lived in the same locality until when he finished school; she finished school after the appellant and therefore there is no truth in the assertion that he did not know that she was underage; he took advantage of the situation until he was arrested. 13. Medical evidence: it was confirmed that the hymen was broken which was an indication that the complainant was sexual intercourse; the only other evidence was that she was living with the appellant 14. That the trial court did not mis-direct itself and it is allowed to analyze all the evidence tendered including that of the appellant so as to reach a justified decision; the appellant had full knowledge that the complainant was a minor; he did no due diligence to enquire why complainant came to his place; the complainant was under the age of 18 years and lacked capacity to give consent; 15. Counsel prayed that the appeal be dismissed; and the conviction and sentence be upheld. ISSUES FOR DETERMINATION; 16. After taking into consideration the submissions of both the Appellant and Respondent this court finds the following issues for determination; (i) Whether failure to conduct a ‘voire dire’ examination invalidated the conviction; (ii) Whether the prosecution proved its case to the desired threshold; (iii) Whether the appellant reasonably believed the complainant to be of marriageable age; whether the trial court disregarded the appellants defence without giving sound reasons. ANALYSIS 17. This court being the first appellate court it is incumbent upon it to re-evaluate and re-assess the evidence on record and arrive at its own independent conclusion bearing in mind that this court did not have the opportunity or benefit of hearing and seeing the witnesses as they testified. Refer to the case of Okeno vs Republic (1972) EA 32. Whether failure to conduct a ‘voire dire’ examination invalidated the conviction 18. This court notes from the record that the trial court did not conduct a ‘voire dire’ examination to ascertain the competence of the child to give evidence; the appellant submits this was fatal to the reception of her evidence as it was unlawfully received; this court has had occasion to peruse the authority cited by the appellant in support of his submissions; this court opines that the holding of that appellate court was that provided the conviction was not dependant entirely on the evidence of the child then the omission to ascertain the competence of the child did not invalidate the conviction; 19. In this instance the trial court based the conviction on the evidence adduced by the PW6 the doctor who examined the complainant; the doctor produced the P3Form which was marked as PExb.1 therein the age of the complainant was estimated as being 16years; the evidence went to prove the age of the complainant; the doctor also testified to a broken hymen but there were no physical signs of injuries evident; the trial court stated; “Like stated earlier, the only issues here are penetration and age; It was not put to the complainant directly whether they had sex during the almost 2 months of co-habitation but the accused himself admitted in cross-examination that they had sex. The P3 shows that hymen was broken. There were no other injuries evident. There could not have been other injuries if the sex was consensual. The issue of consent being immaterial too.” 20. The trial court also relied on the evidence of the appellant given under cross-examination that he had sex with the appellant and was satisfied that this evidence established penetration; 21. This court is satisfied that the conviction did not depend entirely on the evidence of the child and that the omission to ascertain the competence of the child did not invalidate the conviction; 22. This ground of appeal is found lacking in merit and is disallowed.

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Whether the prosecution proved its case to the desired threshold; 23. The appellant was charged with the offence of defilement; the key ingredients of the offence are identification, age and penetration; 24. On identification: the evidence on record is that the complainant went to the appellants’ house out of her own free will; the trial court puts it this way in its judgment; “The complainant, whom the court accepts as a truthful and reliable witness testified that she “left home for Nairobi to live with the accused as her husband.” 25. And that the co-habitation was for almost two (2) months therefore the appellant was a person the complainant had known for a considerable time; upon re-evaluation of the evidence on identification this court is satisfied that appellant was a person well known to the complainant and that identification was by way of recognition; 26. This court is satisfied that the appellant was positively identified. 27. On age; The Charge Sheet reads sixteen (16) years and in her testimony PW1 states her age as being sixteen (16) years; her father PW2 gave her age as sixteen (16) years; her mother PW3 stated that PW1 was born on the 3/8/1996 and produces PW1’s Birth Certificate which was marked as PExb.2; the evidence of PW6 the Doctor who testified and produced the medical evidence was that PW1’s estimated age was sixteen (16) years at the time when the examination was carried out. The P3 Form tendered in evidence indicates the age of the Complainant as sixteen (16) years. 28. The age of the victim is a crucial factor as it determines the sentence to be imposed. Age can be proved by medical evidence and it can also be proved by either a Birth Certificate or a Notification of Birth. 29. This court has had occasion to peruse the Birth certificate and the P3 Form and confirms that the age of the Complainant indicated therein as being sixteen (16) years. 30. This court is satisfied that the Birth Certificate (PExh.2) and the medical evidence tendered by PW6 was sufficient proof of the age of the Complainant. 31. On Penetration;The doctor (PW6) who examined the complainant confirmed that the complainants hymen was broken which means that the complainant was sexually active; the report indicates that there were no physical signs of injuries on the complainants private parts; which then is supportive of the fact that there was no evidence of forceful vaginal penetration or otherwise. 32. PW6 made a further finding in the P3 Form that the ‘hymen broken. Old”; it is this courts considered view that since there were no injuries found and that the only evidence was that of an old broken hymen which in itself cannot be evidence of defilement as it could not have been ascertained when or where it was broken; 33. It is noted that the trial court based its finding on penetration based on the evidence of the appellant which came out as an admissioncum- confession that the two had sex during the period of cohabitation; this court concurs with the submissions of the appellant that the general principle is that all matters probative of the guilt of the accused should be adduced as part of the prosecution’s case; and that it wrong for a trial court to shift the burden of proof to the appellant and to hold that a statement made by the appellant inculpates him; 34. This court is satisfied that the statement is of no evidential value; the complainant whom the trial court found to be a truthful witness stated in her evidence that what was in the charge sheet was false; and in the absence of cogent medical evidence this court finds that there is no evidence to corroborate and therefore no proof of the key ingredient of penetration. 35. Therefore the prosecution is found to have failed to prove the key ingredient of penetration. Whether the appellant reasonably believed the complainant to be of marriageable age; whether the trial court disregarded the appellants defence without giving sound reasons 36. From the evidence adduced the trial court ought to have considered that the defence set out in Section 8(5) of the Sexual Offences Act was available to the appellant; that he had reasonable belief that the complainant was of age; and that the complainant may have held out to the appellant as being of age; the complainant also confirmed in her evidence that was not attending school and that she left home on her own accord and came to live with the appellant whom she referred to as her husband; 37. After re-evaluating the evidence on record it is this courts considered view that the trial court ought not to have disregarded the appellants defence by failing to take it into consideration; and by casually dismissing it arrived at an incorrect conclusion; 38. This ground of appeal that the trial court disregarded the appellants defence is found to have merit and is hereby allowed. FINDINGS 39. In the light of the forgoing this court makes the following findings;

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(i) This court finds that an omission to conduct a ‘voire dire’ examination does not invalidate a conviction; (ii) The prosecution is found to have failed to prove its case to the desired threshold as it failed to prove a key ingredient of the offence of defilement, namely penetration; (iii) The trial court ought to have considered the applicants defence. (iv) This court finds that the appellants had good reason to believe the complainant was of age; and finds that the conviction to be unsafe. DETERMINATION 40. The appeal is found to be meritorious and is hereby allowed. 41. The conviction is hereby quashed and sentence is hereby set aside. 42. The appellant be set at liberty forthwith unless otherwise lawfully held. Orders accordingly. Dated, Signed and Delivered at Nyeri this 12th day of October, 2017. HON.A.MSHILA JUDGE

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