REPUBLIC OF KENYA IN THE HIGH COURT AT KISUMU CRIMINAL APPEAL NO.35 OF 2016 BETWEEN DICKSON DICK ONG’ONDO............................APPELLANT AND REPUBLIC.................................................... RESPONDENT (Being an appeal from the original conviction and sentence of Hon. B. K. Kiptoo, RM dated 18th May 2016 at Senior Principal Magistrate’s Court at Maseno in Criminal Case No. 108 of 2016) JUDGMENT 1. The appellant, DICKSON DICK ONG’ONDO, was charged with the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. The particulars were that on 24th January 2016, at [particulars withheld] area within Vihiga County, he intentionally caused his penis to penetrate the vagina of AK, a child aged 10 years. He was also faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offence Act based on the same facts. After a full trial, the appellant was convicted of the principal charge and sentenced to life imprisonment. He now appeals against conviction and sentence. 2. In his petition of appeal filed on 16 th September 2016, the appellant contended that the court erred in allowing the evidence of the complainant that was not credible and reliable. He also stated that the case was not proved to the required standard and that the investigating officer was not called as a witness. He contended that the he did not receive a fair trial as Article 50(2)(j) of the Constitution was violated. The appellant lodged amended grounds of appeal in which he stated that the medical evidence relied upon by the prosecution lacked any probative value and that the prosecution relied on hearsay evidence. The appellant also complained that the age of the child was not proved. The appellant supplemented the grounds of appeal with written submissions. 3. The respondent, through Ms Osoro, opposed the appeal and submitted that the prosecution proved every element of the offence of defilement beyond reasonable doubt. 4. This being a first appeal, it is the duty of this court to re-evaluate the evidence adduced so as to reach its own independent conclusion as to whether or not to uphold the appellant’s conviction bearing in mind that it neither heard not saw the witnesses testify (see Njoroge v Republic [1987] KLR 19). 5. After being sworn, the complainant (PW 1) testified that on 24 th January 2014, she was going to fetch firewood when the appellant whom she described as Obieko and whom she knew, grabbed her, took her to a nearby bush and proceeded to sexually assault her. She told the court that her uncle, by the name P
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O, had witnessed the incident. She went home took a shower and left for church. In cross-examination she denied that she arranged to fix the appellant. 6. The child’s father (PW 2), recalled that he was informed in the evening of 24 th January 2014, that PW 1 was required to be taken to hospital. He was told that PW 1 had been defiled by a person called Dishon. He went to hospital with her on the next day and also reported the issue at the police station where he was issued with a P3 form. The P3 form was filled by PW 3, a Clinical Officer at Emuhaya Sub-County Hospital, who testified that he saw PW 1 on 27 th January 2016. He examined her and found that her labia were inflamed and swollen. He concluded that there was penetration. He also produced an age assessment report prepared by another Clinical Officer which showed that PW 1 was aged 10 years. 7. PW 4, the complainant’s cousin, recalled that she was informed that a child had been defiled on the night of 24th January 2016. She went to PW 2’s home where she found PW 1. When interviewed, PW 1 narrated to her the ordeal and identified the appellant as Yuda. She escorted the child to hospital where she was examined. PW 4, who knew the appellant, later assisted in his arrest. PW 5, a police officer at Luanda Police Station, confirmed that the report of PW 1’s defilement on 25 th January 2016 at about 2.35pm. She took the statements and issued the P3 form and thereafter caused the appellant to be charged. 8. The appellant opted to give unsworn testimony in his defence. He denied committing the offence and that on the material day he went to work as usual at 8.00am. At about lunch hour, his supervisor called him to the gate whereupon he was arrested by a police officer in the company of the assistant chief. 9. In order to prove defilement, the prosecution must show that the accused 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. I am satisfied that the prosecution proved penetration. PW 1 gave clear evidence of what took place. She narrated the same to PW 3 and then PW 4. Her testimony was corroborated with the medical evidence presented by PW 3 who examined her private parts and confirmed penetration. 11. The next issue is whether PW 1 identified the appellant as the person who defiled her. In her evidence in chief she stated that the appellant’s name was Obieko. Her father told the court that he was informed that PW 1 had been defiled by Dishon. PW 4 testified that when she spoke to PW 1 on the same night, she identified her assailant as Yuda. PW 4 knew the appellant as Yuda. The evidence of the appellant’s arrest is from PW 4 who testified that when the appellant was arrested he was pointed out by the Assistant Chief who had been told by an informer that Yuda is the one who had defiled PW 1. The investigating officer, PW 5, only stated PW 1 mentioned the appellant by name but did not state what name he was identified by. 12. In as much as the incident took place in circumstances that were conducive to positive identification, there prosecution did not prove that the person referred to as Obieko was the appellant. In fact, other than PW 1, none of the prosecution witnesses mentioned anyone by the name Obieko or related that name to Yuda or the appellant. Although the trial magistrate reached the conclusion that PW 1, PW 2 and PW 4 knew each other, no attempt was made by the prosecution to connect the name Obieko and Yuda as the names of the appellant. Moreover, it is not PW 1 and PW 4 who identified the appellant when he was arrested but an Assistant Chief who was not called as a witness. According to PW 4, the appellant was arrested on the basis of information given to the Assistant Chief by an informer. My doubts as to identity are also buttressed by the failure of the prosecution to call P O who was at the locus in quo and who would have resolved the issue instantly. At the end of the day it was the duty of the prosecution to proof beyond reasonable doubt that the appellant, Yuda and Obieko were one and the same person. 13. Before I conclude the judgment, I will deal with the issue of taking of a child’s evidence. The procedural prerequisites before reception of evidence of child of tender years under section 19 of the Oaths and Statutory Declarations Act (Chapter 15 of the Laws of Kenya) have been considered by the Court of Appeal in several cases 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
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court is satisfied that the child understands the nature of the oath, the court will proceed to swear the child and receive the evidence on oath. But if the court is not so satisfied, it will receive the unsworn testimony of the child if, in the opinion of the court, the child possesses sufficient intelligence and understands the duty of speaking the truth. 14. In this case, the verbatim nature of examination conducted by the trial magistrate was as follows: CHILD - I school at [E] Primary School. Class 3. I am 10 years old. I have come with my father to court. There is a lady who accompanied us and had told me what to say. I have come to tell the court what I saw. I prefer to say what I saw not what I have been told to say. It is not good to lie. I have come to say the truth. COURT – The witness can give sworn evidence as she is of sufficient intelligence and very composed. 15. Although it is not necessary to set out the questions and answers in voire dire examination verbatim, it must be clear from the substance of proceedings that the essential elements of section 19 of the Oaths and Statutory Declarations Act have been complied with (see Johnson Muiruri v Republic (Supra)). From the examination conducted by the trial magistrate, which I have set out above, it is clear that although the child was intelligent and could understand and tell the truth, she was not examined on whether she understood the meaning and nature of the oath. Thus, the voire dire examination conducted was defective. 16. In light of the decision I have reached, the appeal is allowed and the appellant is set free unless otherwise lawfully held. DATED and DELIVERED at KISUMU this 9th day of October 2017. D.S. MAJANJA 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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