Jacob Mutuku v Republic

consider the facts of a case even where the State has conceded to an appeal to establish if such a concession should be granted. 7. In the case of Mwanguo Gwede Mwarua vs Republic [2015] eKLR,the Court of Appeal made a similar observation when it stated as follows:“The concession notwithstanding, it is still our duty as a second appellate Court to consider the issues of law raised by the respondent as grounds for conceding the appeal in order to determine whether the said concession is merited.”(See NORMAN AMBICH MIERO & ANOTHER VS REPUBLIC, CR.APP.NO.279 OF 2005 (NYERI)).” 8. This court therefore considered the following issues that emerged from the Appellant’s Grounds of Appeal and Written Submissions with a view to establishing whether or not the conceding of the Appeal by the State was justified :1. Whether or not the trial was rendered a nullity for failure by the Learned Trial Magistrate to conduct a voire dire examination; 2. Whether or not the Prosecution proved its case beyond reasonable doubt; 3. Whether or not the sentence was harsh, severe and excessive in the circumstances of the case herein. 9. In the case ofSamuel Warui Karimi vs Republic [2016] eKLR, the Court of Appeal observed as follows:“In the leading case of; Kibangeny Arap Korir v Republic, [1959] EA 92; the Court of Appeal for Eastern Africa while dealing with a determination of the issue, held that tender years means a child under the age of 14 years. In a more recent decision of the Court of Appeal sitting in Malindi in the case of; M K v Republic [2015] eKLR; the court termed as “unnecessary” voire dire examination conducted on a child aged 15 years by the trial court. It was held that voire dire examination is done where a witness is a child of tender years. This postulation of the law on voire dire is not reflected across the board by all courts as our research has led us to numerous decisions of the High Court where the interpretation of “a child of tender years’’ is different. For example, in the case of; J G K v Republic[2015] e KLR; the trial court had received evidence of a girl aged 17 years without conducting voire dire examination.” 10. In the case of Patrick Kathurima vs Republic [2015] eKLRalso referred to in the case of Samuel Warui Karimi v Republic (Supra),the Court of Appeal sitting in Nyeri rendered itself as follows:“We take the view that this approach resonates with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of Section 19 of Cap 15. We are aware that Section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the Oaths and Statutory Declaration Act, Cap 15. We have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes.’’ 11. It therefore followed that it was not necessary for the Learned Trial Magistrate to have conducted the voire dire examination as PW 3 was above fourteen (14) years of age. According to the Birth Certificate that was adduced as evidence before the Trial Court,she was in fact, six (6) days shy of her eighteenth (18th) birthday.This court deemed it necessary to pronounce itself on the issue of voire dire examination as the position of the Court of Appeal has now given guidance on the same.

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12. It is important to point out that the Appellant’s assertions that PW 3’s testimony that she was born in 1999 yet her Birth Certificate showed that she was born on 14 th January 1998 was contradictory was not so material as the penalty for defiling a child aged fifteen (15) years to eighteen (18) years was fifteen (15) years imprisonment. 13. In view of the fact that he did not adduce any evidence to the contrary, this court was satisfied that PW 3 was born on the date shown in the Birth Certificate was therefore for all material purposes was a child within the meaning of the Sexual Offences Act. Further, in the absence of any evidence to the contrary, this court found and held that the named T A C attributed to PW 3 when she testified on 26 th April 2016 and name E T A in the said Birth Certificate also referred to PW 3 as PW 1’s name was in the said Birth Certificate. 14. As was rightly submitted by the State, one (1) of the ingredients of the offence of defilement is penetration and that the same was not proven. It had pointed out that although there were several authorities that demonstrated that medical evidence was corroborative of the victim’s evidence, from PW 3’s oral testimony, she was unsure whether the Appellant had carnal knowledge with her. 15. While this court agreed with the State’s submission regarding the ingredient of defilement, it found that contrary to what it had stated, PW 3 had actually testified that the Appellant engaged in sex with her. It was her evidence that when she woke up, she felt wet in her private parts like she had had engaged in sex, a fact she reiterated when the Appellant Cross-examined her. 16. She told the Trial Court that she was taken to hospital by her mother, F N (hereinafter referred to as “PW 1”) and police officers. Neither PW 1 nor PW 3 stated when the latter was taken to hospital. Suffice it to state that Dr Roy Katisya (hereinafter referred to as “PW 5”) told the Trial Court that PW 3 was sent to the hospital on 9th January 2016 when she was found to have had an infection and syphilis. However, there was no evidence of presence of spermatozoa after a high vaginal swab was done. 17. During his Cross-examination, PW 5 stated that during the secondary stage, syphilis can remain in the body for many years without manifesting itself. He averred that PW 3’s hymen had been broken and she was not a virgin. The State thus argued that the fact that PW 3’s hymen was broken did not prove that the Appellant defiled her as she was found to have had syphilis. 18. The Appellant had also questioned why he was never examined to establish whether or not he was infected with syphilis, a fact this court found to have been pertinent for purposes of establishing if he was responsible for having broken PW 3’s hymen and infected her with syphilis or not. 19. This court entirely agreed with the State and the Appellant and came to the conclusion that the fact that PW 3’s hymen was broken was not proof that he actually defiled her as the presence of a syphilis infection was indicative of the fact that she had had previous sexual engagements which in the absence of any concrete evidence could not be attributed to the Appellant only. 20. It did appear to this court that the Appellant was found in the room with PW 3. However, the circumstances under which he came to be in the same room were hazy as it was his word against that of PW 3. Her evidence did not appear to have been consistent. Her assertion that she got to the gate at her home but did not get in and instead she found herself in the lodging room naked feeling as if she had had sex appeared incredulous. 21. This is because during her Cross-examination she did also state that the Appellant called her on her phone but she did not know where he got her number from.From her testimony, they seemed to have had some sort of contact in the course of the day but she seemed to suggest that certain powers led her to the lodging without her knowledge. 22. Notably, she never mentioned of the Appellant having gone close to her as she passed his butchery. The circumstances under which she found herself in the lodging thus remained hazy. It did also appear from the Appellant’s sworn evidence that he was related to PW 1 and PW 3, a fact the two (2) witnesses

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never alluded to. In the absence of any evidence to the contrary, this court was persuaded to accept the Appellant’s evidence and that of his witness, William Ndungani Ivoyra (hereinafter referred to as “DW 2”). 23. Accordingly, having considered the Appellant’s and State’s submissions and bearing in mind the gaps and missing evidence to link the Appellant to PW 3’S defilement on the material date, this court was persuaded to find, as the State and the Appellant had contended, that the Prosecution had not proved its case to the required standard, which was, proof beyond reasonable doubt. This court therefore found and held that the State was justified in conceding to the Appeal herein. DISPOSITION 24. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 8th June 2017 was successful and same is hereby allowed as was conceded to by the State. 25. The doubts that were raised in the mind of this court led it to give the Appellant benefit of doubt that led to hereby quash the conviction and set aside the sentence that was meted upon him by the Trial Court as it would be clearly unsafe to confirm the same. The court hereby orders that the Appellant be set free forthwith unless held or detained for any other lawful reason. 26. It is so ordered. DATED and DELIVERED at VOI this 1st day of November 2017 J. KAMAU JUDGE In the presence of:Jacob Mutuku-Appellant Miss Anyumbafor State Josephat Mavu– Court Clerk

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