Musembi Kyengo alias Kyalo Kyengo v Republic

The Appellant’s Advocates, Nduva Kitonga & Company Advocates, canvassed the appeal by way of written submissions dated 10th February 2017, that were filed in Court on 14 th February 2017. It was submitted therein that the trial court while conducting a voire dire examination ought to have recorded whether or not in the opinion of the court, PW2 possessed sufficient intelligence to justify the reception of the evidence and understood the duty of speaking the truth. The decisions in Julius Kiunga Mbirithia v. Republic [2013] e KLR and Fransisco Matove v. Republic [1961] EA 260 were cited on the procedure of conducting a voire dire examination. Further, that since the voire dire examination was not conducted in accordance with the laid down procedure, the evidence given by PW2 which was used to convict him was not credible. The Appellant also submitted that the evidence of PW1 and PW2 was contradictory, in that while PW1 alleged that the Appellant was known to PW2 before the occurrence of the alleged offence, PW1 identified the Appellant as Musembi Kyengo while PW2 identified him as Kyalo which name does not belong to him. He further argued that the uncle alleged to have called PW1 informing her that PW2 had difficulty in passing stool was never called to testify. Further, that PW2 stated that PW1 was in company of about ten (10) other people but none of them was called to testify, and that the assistant chief of Kasinga area and Community police were never also brought to testify yet they were crucial witnesses who would have cleared doubt. He cited Bukenya v. Republic [1970] KLR to illustrate the effect of failure to call a crucial witness. As to whether the elements of the offence were satisfied, the Appellant submitted that the prosecution offered completely inaccurate and inconsistent evidence as to the age of PW2. Further, that there was no age assessment hence the proof of age was wanting. In addition, that although the doctor testified that PW2 had been defiled, he did not tender evidence to prove penetration, and that the evidence of penetration was not linked to the Appellant. The Appellant alleged that the charges were trumped up to fix him due to a longstanding grudge between him and PW1. Lastly, the Appellant submitted that his defence that on the material day he was at a farm with two other adults and did not see the complainant was not considered. Ms Mogoi Lillian, the learned prosecution counsel, filed written submissions in opposition to the appeal dated 21st September 2017, wherein she urged on the issue of voire dire examination, that the minor possessed sufficient knowledge of his surroundings hence could testify in court. Further, that there is no requirement for the trial Court to cite certain express wordings in its findings on whether a minor possesses sufficient knowledge to testify or not. She contended that the essence of a voire dire examination is to determine whether or not a minor can give unsworn or sworn testimony, and that the trial court on appreciating that PW2 did not understand the nature of an oath and the seriousness of the same directed that the minor gives unsworn testimony. It was further submitted by the Prosecution that the offence took place in broad daylight and at an open place hence there was no mistake as to the identity of the offender. There was also no need for identification as the Appellant was known to PW2. Further, that the evidence of PW2 was corroborated by the evidence PW1 to the effect that the Appellant left with PW2 and later PW2 came back with dirty clothes, which was caused by being pressed on the ground by the Appellant as was stated by PW2. In addition, that the findings of PW3 were consistent with the offence committed by the Appellant and thereby corroborated the evidence of PW1 and PW2. On the issue of the complainant’s age, the prosecution submitted that PW4 who was the investigating officer produced a birth notification of PW2 indicating that PW2 was born on 10 th May 2003, confirming that PW2 was eight years old at the time. Further, that the Appellant did not object to the production of the birth notification, and PW2’s age was thereby proved beyond reasonable doubt. Lastly, it was submitted that the Appellant in his unsworn statement confirmed that he was working on the coffee farm on the material day, but that he did not know that PW1 had a son. However, that the

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Appellant contradicted himself by indicating that he did not see PW2 on the material day because he was in school. Further, that his evidence was on his arrest and he avoided the issue before court. Therefore, that the Appellant’s evidence did not shake the prosecution case, and that the trial court considered the Appellant’s defence and reached the same conclusion. The Determination As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial Court, and come to an independent conclusion as to whether or not to uphold the conviction and sentence. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32). The prosecution called four witnesses to prove their case against the Appellant. E N M (PW1) and her son W M (PW2) testified as to the defilements that occurred on 31 st May 2012 while they were at a coffee farm where PW1 was working with the Appellant, and the events that occurred thereafter. Dr. John Muthoka (PW3) who was a doctor at Machakos Level 5 hospital produced the P3 form that was filled by Dr. Loiposha, who he knew. Corporal Lonah K. (PW4) who was stationed at Machakos Police Station and was the investigating officer, testified that the Appellant was taken to the police station on 3 rd June, 2012 by the Assistant Chief of Kasinga and the community policing. Further, that they were in company of a minor who was said to have been defiled by the appellant. On inquiry, PW2 stated that he had been defiled by the Appellant. PW2 was then taken to Machakos Level 5 hospital where he was treated. PW4 testified that she then charged the Appellant. She produced PW2’s birth notification as P. Exhibit 2. The Appellant was put on his defence and gave an unsworn statement. I have considered the grounds of appeal and the arguments made thereon, and I note that the two issues for determination are whether the voire dire examination conducted by the trial Court was proper; and if so, whether the Appellant,s conviction was on the basis of sufficient and satisfactory evidence. On the first issue, the conduct of a voire dire examination and its purpose was explained by the Court of Appeal in Johnson Muiruri vs Republic [1983] KLR 445 as follows: 1. “Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him. 2. It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided. 3. When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood. 4. A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth. 5. The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.”

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In the present appeal, the trial Court record shows that on 2 nd July 2012, the trial magistrate did conduct a voire dire examination and recorded the questions the Court asked PW2 and the answers thereto. The trial Court then made a finding as follows: “Minor though well oriented does not understand the nature of an oath and the serious consequences attached to it. The minor should proceed by unsworn evidence” The finding by the trial magistrate that from the orientation of PW2 he was not possessed of sufficient knowledge to testify on oath is what was material, and the language or expressions used to this effect are largely immaterial. The voire dire examination was thus properly conducted by the trial Court. Coming to the second issue, the ingredients of defilement were highlighted in Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 as follows: “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” E N M (PW1) testified in this regard that she and the Appellant were casual labourers at a coffee farm. Her son W M (PW2) who was unwell accompanied her to the farm on 1 st June, 2012. The Appellant was then sent for sacks and returned drunk. He then called PW2 and went away with him. PW1 stated that she did not object to PW2 going with the Appellant because she did not know the Appellant to be of bad character. PW1 testified that the next day, PW2 complained of stomach ache, and that she administered to him herbal medicine and left him to rest at his uncle’s place. After a short while, the said uncle came for her, stating that PW2 was having difficulty passing stool. She went back home and spent the whole day with PW2. On the following day, she went with PW2 to the farm. There, she noted that PW2 had difficulty moving his bowel. PW2 then told her that the Appellant had sodomised him. He said that he feared telling thinking he would be caned. She immediately took him to hospital. When she reached the hospital, the doctor advised her to first make a report to the police. PW1 was later recalled and clarified that the date of the offence was 31st May, 2012. W M (PW2) evidence, which was given after a voire dire examination, was that on the material day he had gone to the coffee farm with PW1. That he did not know a Musembi Kyengo but stated that he knew the Appellant as Kyalo, and that it is PW1 who had told him the name of the Appellant. He stated that he knew the Appellant prior to the date of the alleged offence. Further, that the Appellant on that day called him and told him that he would buy for him ‘mandazi’. He then went with the Appellant to a place further from where PW1 was, but just within the coffee farm. PW2 testified that the Appellant then told him to undress. He ordered him to lie down and the Appellant then took off his pants and inserted his penis in PW2’s anus. PW2 further testified that the Appellant held him on the ground by pressing onto his back so that he could not escape. He cried for help and the Appellant held him away and bought for him ‘mandazi’. That the Appellant also told him not to tell and promised to give him KShs. 10/-. The Appellant later took him to PW1. PW2 stated that he reported to PW1 on a Saturday because he was in pain. He stated that he was taken to hospital in Machakos. Dr. John Muthoka (PW3) who was a doctor a Machakos Level 5 hospital produced a P3 form that was filled by Dr. Loiposha who he knew. He stated that the P3 form revealed that PW2 was aged 8 years and that he sustained anal injuries. In addition, that blood was oozing from PW2’s anus, he had stool incontinence and his anus was swollen. He produced the p3 form as P. Exhibit 1. The evidence by PW2 as set out in the foregoing established the fact of penetration. Penetration is defined in Section 2 of the Sexual Offences Act to mean:“the partial or complete insertion of the genital organs of a person into the genital organs of another person."

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PW2 was also clear in his evidence that it was the Appellant who penetrated his anus with his penis. He recognized the Appellant who he knew from before as Kyalo, a name of the Appellant which was also indicated in the charge sheet and which he did not contest during the trial. The evidence of PW1 also put the Appellant at the scene of the crime, and she testified that she saw the Appellant take PW2 away on the material day. The evidence of PW2 as to penetration was corroborated by PW3 who provided medical evidence to show that there were laceration of PW2’s anus, it was swollen and bleeding and that PW2 was suffering from stool incontinence. There was therefore evidence that linked the Appellant to the penetration of PW2. On the proof of the age of the complainant PW2’s birth notification was produced by PW4 as an exhibit to ascertain his age. The said revealed that PW2 was 8 years of age. The Appellant however contended that the age was not sufficiently proved since an age assessment was not conducted. While medical evidence is the most preferred proof for age, the said is not the only means of proving age. While medical evidence is the most preferred proof for age, the said is not the only means of proving age, and formal documents showing the age of a complainant are also sufficient evidence as held in Fappyton Mutuku Ngui v Republic [2012] eKLR as follows: “I would be prepared to clarify that “conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean that there has to be a formal age assessment report or the production of a birth certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other case It therefore follows that the prosecution proved all the elements of the offence of defilement to the required standard. The law does not in this regard provide for a particular number or witnesses to be called to prove a fact. What matters is that such witnesses called give evidence sufficient to support the charge which was done in the case at hand. The failure to call additional witnesses by the Prosecution was thereby not fatal. Lastly, on the Appellant’s defence, the Appellant firstly gave an unsworn statement whose probative value is minimal. He stated that he was arrested on 1 st June, 2012. He was first taken to the chief then the police station where he was put in custody. In addition, that PW2 stated that there were many people picking coffee and he never pointed the Appellant out. The Appellant further stated that he was working at Mzee Duva’s farm on the material day, and that he was with two people a man and woman. Further, that they left for home at 4.00 pm, and never saw the child (PW2) since he was at school the whole day. On cross examination, the Appellant stated that he knew PW1 but he did not know PW2. That he never knew PW1 had children. He denied ever seeing PW2 on 31st May, 2012. Weighing the Prosecution’s evidence vis-a-vis that of the Appellant, it is clear and I find that the prosecution case was not shaken by that of the appellant for various reasons. The Appellant confirmed that on the material date he was working at a farm which corroborated PW1 and PW2’s evidence. In addition his account of the events on the material day do not shed any doubt as he did not give particulars of the persons he was with so that they could be investigated or called as witnesses. Lastly, he contradicted himself in his defence by alluding to the fact that on the material day PW2 was in school, indicating his knowledge of the existence of PW2. Lastly, a person who commits the offence of defilement with a child of 11 years or less shall be upon conviction sentenced to imprisonment for life as provided in section 8(2) of the Sexual Offences Act. This court cannot deviate from this minimum sentence. In the circumstances, I find no reason to interfere with the trial magistrate’s findings. I accordingly uphold and affirm the conviction of the Appellant for the charge of defilement contrary to section 8(1) and (2) of the Sexual Offences Act, No. 3 of 2006. The sentence by the trial court of life imprisonment for this conviction is legal and is also affirmed.

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It is so ordered. DATED AT MACHAKOS THIS 4th DAY OF OCTOBER 2017. P. NYAMWEYA JUDGE

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