REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NANYUKI CRIMINAL APPEAL NO. 99 OF 2016 JOSEPH LEMERDETE...........................................................APPELLANT versus REPUBLIC............................................................................RESPONDENT (Being an appeal from the original conviction and sentence in Maralal Principal Magistrate’s Court Criminal Case No. 497 of 2015 by Hon. C. N. Ndegwa, Principal Magistrate on 18th day of February 2016). JUDGMENT OF THE COURT 1. JOSEPH LEMERDETE, the appellant herein, was charged before the Principal Magistrate’s Court Maralal with the offence of defilement of a girl aged 8 years contrary to section 8(1)(2) of the Sexual Offences Act. On the alternative charge he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. After trial he was convicted on the main charge of defilement and was sentence to life imprisonment. He now presents this appeal against conviction and sentence. 2. NL an 8 year old girl was on 28 th June 2015 at 1 p.m. in the company of JL who was an 11 years old girl. They were in the forest collecting firewood. As they did so the appellant who was very well known to them, NL described him as a member of the family, got hold of both girls. JL managed to free herself from his grip but NL was unable. NL stated in evidence:“Accused took me into the bush removed my clothes and had sex with me. He also beat me. He tore my T-shirt, skirt and removed my underpants before he had sex with me.” NL was injured by the appellant who she said hit her with his club (rungu). As a consequence NL suffered a fracture on her left hand. 3. JL reported the incident to NL’s grandmother and that grandmother and other women went to the scene screaming. The screaming led to the appellant fleeing. One of those women who went to rescue NL was (PW 5). She said:“I and other women went to look for the child NL ...... We came across the accused. He looked frightened and he had a rungu which I snatched from him. He then ran away and left the rungu with me.” 4. When they found NL they found her naked, unconscious and injured all over her body. Her left hand was fractured. They also found she was bleeding in her private parts. They collected the T-shirt and the
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skirt of NL from the scene. 5. The doctor who examined NL about 4 hours after the attack found that she had cut wound on her forehead, minor soft tissue injuries to the thorax, fractured left hand and bruised on the lower limbs. The doctor also found evidence of rape and concluded there was penetration. Indeed in evidence in chief the doctor said:“The child was seriously defiled” 6. The appellant in his unsworn defence stated that on the day in question he was at his home. He denied having met NL and denied defiling her. 7. In the appellant’s grounds of appeal he faulted his conviction, on evidence of JL who he argued no voir dire examination was done; and on evidence of NL when the trial court did not determine if she understood the meaning of oath. He also argued that the trial court failed to provide an interpreter. That the trial court’s case was conducted by a police officer who was no of a rank of an inspector. And that the exhibits that were marked for identification were not produced in evidence. 8. The obligation of this court as the first appellant court was stated in the case OKENO V R (1972)EA 32 where it was held that:“[The duty of the first appellant court] is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may depending on the facts and circumstance of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 9. On the first ground the appellant stated that the prosecution’s case failed because the evidence of JL, an 11 year old girl, was received without voir dire examination being conducted. The Court of Appeal in the case SAMUEL WARUI KARIMI V REPUBLIC [2016] eKLR extensively considered to whom voir dire exam should be conducted and stated thus:“Section 19(1) of the Oaths and Statutory Declarations Act has something to evidence of a child in the following:- do with receiving “Where in any proceedings before court or person having by law or consent of parties authority to receive evidence, any child of tender years called as 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 is possessed of sufficient intelligence to justice the reception of the evidence, and understand the duty of speaking the truth”.................... Who is a child of tender years is an issue we think requires clarification because the courts have made various conclusions. Section 2 of the Children’s act defines a child of tender years to mean “a child under the age of 10 years.” We have not come across any other statutory definition of a child of tender years other than the above which in our view was perhaps informed by the broad interest of protecting children from criminal responsibility and not as test of competency to give evidence in criminal proceedings. Court decisions regarding the competency of evidence by children of tender years have maintained a higher threshold of 14 years and not 10 years as witnesses of tender years whose evidence must be subjected to voire dire examination ...... In a recent decision of the Court of Appeal sitting in Nyeri the case of Patrick Kathurima v Republic, (2015) eKLR; it was held:“We take the view that this approach resonates with the need to preserve the integrity of the viva
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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 remain a reasonable indicative age for purpose of section 19 of Cap 15. We were aware 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.” The above decision supported the definition of a child of tender years to be 14 years and below and contextualized that definition within the Oaths and Statutory Act and under the Children’s Act. On our part, we have no good reason to depart from this well trodden path, as we are in agreement the purpose of undertaking voire dire examination in a criminal trial is to protect the guaranteed right of a fair trial. Where the witness as in this case was aged 12 years and that essential step was not taken in a criminal trial, that trial becomes problematic. In the circumstances we find the evidence by the complainant was not properly received thus, the conviction of the appellant becomes unsafe to sustain as she was the complainant and not any other witness.” 10. The Court of Appeal in the above case concluded, as it will be noted, that the courts should conduct voir dire exam on a child below the age of 14 years. JL was 11 years old. The trial court did not conduct a voir dire exam on her but her evidence was received under oath. The trial court’s failure to conduct that examination could have led to the setting aside of the appellant’s conviction but for the fact, as will be seen later that there was other overwhelming evidence against the appellant. 11. The other evidence which implicated the appellant was by NL, the grandmother and other women who mounted a search of NL but perhaps the most damning evidence was by NL’s aunt who met up with the appellant as he fled from the scene and who grabbed the appellant’s rungu. It ought to be remembered that the incident occurred in the middle of the day. The witnesses who saw the appellant flee had no difficulty identifying him. Further the aunt who grabbed the appellant’s rungu said that the appellant was her nephew and that he resided in her homestead. That mean her recognition of the appellant was beyond doubt. It is for that reason that, although the evidence of JL will be discounted for failure of the trial court to undertake voir dire on her, there was other more overwhelming evidence which proved beyond reasonable doubt the appellant defiled NL. 12. The appellant erred to argue that the trial court did not determine whether NL understood the meaning of an oath. The trial court conducted voire dire exam of NL. In that examination NL confirmed that she knew the difference between truth and false evidence and NL then stated:“I know I have to tell the truth in court.” That statement in my view sufficed to show that NL knew the importance of telling the truth and therefore knew the implication of taking oath. 13. Although appellant argued the trial court failed to supply an interpreter the fact is that the language used by all witnesses was indicated by the trial court. NL, JL and PW 3 and PW 4 gave evidence in Samburu Language. PW 5 and PW 6 testified in Kiswahili. The appellant cross examined NL, JL and PW 3. He however did not cross examine the lady who was his aunt PW 4. He then cross examined PW 6, the doctor who testified in Kiswahili. Having, as it seems, fully participated in the trial I reject the appellant’s submission that the trial court failed to provide an interpreter. 14. The appellant’s argument that his case was prosecuted by police officer below the rank of inspector is not supported by the proceedings of the trial court. Further the appellant should have raised that issue before the trial court and not wait until the trial is over. That ground is also rejected. 15. The appellant was wrong to say that the exhibit that is the T-Shirt, the skirt and the rungu were not submitted in evidence. The fact is that they were submitted by PW 5 the investigating officer.
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16. In view of the above analysis the appellant’s appeal has no merit and is dismissed. The Appellant’s conviction is upheld and his sentence is confirmed. DATED and DELIVERED at NANYUKI this 4TH day of OCTOBER 2017. MARY KASANGO JUDGE CORAM: Before Justice Mary Kasango Court Assistant: Njue/Mariastella Appellants: Joseph Lemerdete............................. For the State: …......................................................... Language: ................................................................ COURT Judgment delivered in open court. MARY KASANGO JUDGE
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