Newton Changirwa Alias Chege v Republic

6. The evidence adduced before the trial court was as follows. On the material day, VA (PW 1) and DS (PW 2) were playing outside. PW 1 testified on oath that the appellant called her and asked her to enter his house whereupon he proceeded to sexually assault her. Thereafter she went and reported what had happened to her grandmother (PW 4). PW 4 told the court that on 12 th June 2016, PW 1 returned from school in the evening and went to play. When she came back, she was noted that the child had a foul smell and was not walking properly. Since she was going for a funeral, she did not do anything until the following Sunday when she was called by PW 5 and told that she was with PW 1 who had informed her of the incident. She went to PW 1’s place and confirmed that the child had a discharge from the vagina. PW 1 told her that the appellant had sexually assaulted her. She later took the child to Sabatia Hospital for examination and treatment and reported the matter to the police. 7. PW 5 recalled that when PW 1 came to her house on 14 th June 2016, she was not walking properly. She became suspicious and when she inquired what had happened, PW 1 told her that the appellant had sexually assaulted her. She inspected her private parts and noted that her pants were dirty and had blood stains. She called PW 4 and a village elder to come and they proceeded to the hospital. 8. PW 2 testified on oath that she was called by the appellant to his house and told to remove her pants and lie on his bed. The appellant proceeded to sexually assault her and threatened to kill her if she told anyone. Thereafter, a village elder, PW 7, told the court that she saw PW 2 at a funeral lying on chair. The other children kept away from on the ground that she was smelling. On the next day, PW 2 refused to go to Sunday School. PW 7’s husband called her and told her that he had noticed PW 2 was not walking properly. When he called PW 2 and inquired from her what happened, she opened up and told her what the appellant had done to her when she was with PW 1. On the following day, PW 7 took PW 2 to Sabatia Hospital and later reported the matter to the police. 9. PW 3 told the court on oath that the appellant called her while she was washing dishes at home. He told her to enter a toilet where he joined her and proceeded to sexually assault her. He threatened to kill her if she told anyone else. She later told her aunt about the incident. PW 8, a school teacher at the local primary school, testified that she heard that some children had been defiled. She later learnt that PW 3 had been defiled and when she went back to the school and interviewed her, PW 3 admitted that the appellant had indeed defiled her in a toilet. She took PW 3 for examination and treatment at Sabatia Hospital. 10. A Clinical Officer, PW 9, from Sabatia Hospital examined PW 1 on 15 th June 2015. He noted that her vagina had a discharge with blood spots, the hymen was broken and the labia majora and minora had bruises. He concluded that there was penetration. He also examined PW 2 on 13 th June 2015. He observed that her hymen was broken and there was yellow discharge. A high vagina swab and urinalysis revealed the existence of pus cells. He concluded that PW 2 had been penetrated. PW 9 examined PW 3 on 15th June 2016. Her hymen was broken and urinalysis revealed pus cells. He also concluded that there was penetration of PW 3. 11. The investigating officer, PW 10, gave an account of the investigation. He told the court that the defilement of the three complainants was reported on 15th June 2015 by a teacher who requested that the accused be arrested. Together with another officer they went to Madzuu market where they found the appellant and arrested him. On the same day, he found the complainants and their parents at the police station after they had been treated. He recorded witness statements and decided to charge the appellant. 12. In his sworn defence, the appellant denied the offences. He gave an account of his arrest by the police officers and told the court that when he reached the police station, he found the young children in the company of some women. He maintained his innocence and testified that prior to his arrest, PW 4, had tried to stop him from weeding his shamba and told him to erect a boundary between their farms. They started arguing whereupon, PW 5, who heard the argument, came and started abusing him. They both told him to leave and he obliged as he did not want to quarrel with them. 13. The central issue in this appeal whether the prosecution proved its case beyond reasonable doubt. The

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key evidence implicating the accused was that of three children, aged 10 years and below. The law governing reception of the evidence of a child of tender years is to be found at section 19 of the Oaths and Statutory Declarations Act (Chapter 15 of the Laws of Kenya) which provides: 19(1) Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a 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 understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section. 14. The procedural prerequisite before reception of evidence of child of tender years under section 19 of the Act has been considered by the Court of Appeal in several cased 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 court is satisfied that the child understands the nature of the oath, the court proceeds to swear the child and receives the evidence on oath. But if the court is not so satisfied, the unsworn evidence of the child may be received if, in the opinion of the court, the child possessed of sufficient intelligence and understands the duty of speaking the truth. 15. In order to appreciate the nature of this case, I will set out verbatim the nature of examination conducted by the trial magistrate for PW 1 and PW 2. PW 3 was not examined and gave sworn testimony. PW 1- EXAMINATION (VOIRE DIRE) My name is A. I am six years old. I go to [K] Primary School. I am in Class 1 student. I know the accused Chege. I want to tell the court what really happened. It is the truth. Court- The minor understands the importance of telling the truth; hence I will allow her to testify under oath. PW 2 – EXAMINATION (VOIRE DIRE) My name is DS. I am a student at [RS]. I am in Class one. The accused is called Chege. I usually see him at home carrying grass. I want to say what Chege did to us. I am 8 years old. Court – I have talked to the minor and reached a conclusion that she understands the meaning of telling the truth. I will therefore allow her to give her testimony under oath. 16. Although, it is not necessary to set out the questions and answer in voire dire 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 and which I have set out above, it is clear that although the children were intelligent and could tell the truth. However, the children were not examined on whether they understood the meaning and nature of the oath. Thus, the voire dire examination conducted was defective. 17. PW 3, who was aged 10 years, was a child of tender years. The position established in Kibageny arap Kolil v R [1959] EA 92, and followed in subsequent cases by the Court of Appeal, is that the phrase, ‘a child of tender years’ means a child under the age of 14 years. It remains unchanged despite the definition of a child under the Children Act as the Oaths and Statutory Declarations Act specifically deals with the competence of children to testify rather than the rights of the child (see Samson Oginga Ayieyo v R CA KSM Criminal Appeal No. 165 of 2006 [2006]eKLR). I therefore find and hold that the trial magistrate fell in error by failing to conduct a voire dire examination before taking the testimony of PW 3 on oath.

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18. The consequence of whether testimony is sworn or unsworn is important. Ordinarily sworn evidence does not need corroboration. Section 19 of the Oaths and Statutory Declaration Act had a proviso which stated: Provided that, where evidence admitted by virtue of this Section is given on behalf of the prosecution in any proceedings against any person for any offence, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him. That section was amended and that proviso re-enacted as section 124 of that Evidence Act (Chapter 80 of the Laws of Kenya) and a further proviso added thereto as follows: Provided that where in a criminal case involving a sexual offence the only evidence is that of a child of tender years who is the alleged victim of the offence, the court shall receive the evidence of the child and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the child is telling the truth. 19. What then is the consequence of these errors? The authorities establish that failure to follow the prescribed procedure does not necessarily vitiate the trial. In Patrick Kathurima v Republic CA NYR CR App. No. 131 of 2014 [2015]eKLR, the Court of Appeal observed that; The trial magistrates’ failure to reflect on the record the questions put to H.W. during the voir dire examination was not therefore per se fatal to the prosecution case. The sustainability or otherwise of the prosecutions’ case solely depended on whether the evidence on which it was anchored met the thresh hold of proof beyond reasonable doubt. 20. In Maripett Loonkomok v R CA MSA Criminal Appeal No. 68 of 2015 [2016]eKLR, the Court of Appeal stated; It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that; “In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.” See Athumani Ali Mwinyi v R Cr.Appeal No.11 of 2015 21. Following the statements of principle, I have outlined above, it is clear that the testimony of PW 1, PW 2 and PW 3 was deficient and the proper approach is to consider it as unsworn testimony, evaluate it with the rest of the evidence to see whether a conviction can be sustained. 22. 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.” PW 1, PW 2 and PW 3 clearly described the ordeal they went through with the appellant. They each gave a description of the sexual act which left no doubt that there was penetration. Their not shaken on cross-examination and if corroboration were required, it was readily available from the testimony of other witnesses. The fact that PW 1 was defiled was confirmed by both PW 4 and PW 5 who, not only saw her in a distressed state from the manner she was walking and examination of her genitalia, but also from the medical evidence of PW 9. PW 2’s state after her ordeal was confirmed by PW 7 and by the medical evidence of PW 9 while the testimony of PW 3 was corroborated by the medical evidence of PW 9. 23. The appellant submitted that the medical evidence was inconclusive and could not be relied upon. He suggested that since PW 1 had some infection, it was possible that PW 1 was defiled by someone else as

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he was found not to have any infection when he was examined. I reject this argument as the issue for determination is whether there was penetration. Clearly the medical evidence established penetration, which is the crux of the offence. This argument does not take the appellant’s case any further, as the proviso to section 124 of the Evidence Act entitled the court to convict the accused even without corroborative evidence. In this case, the trial magistrate was satisfied that the children were telling the truth. He held as follows; PW 1, PW 2 and PW 3 were consistent win their testimonies. Their testimonies were subjected to cross-examination and their response to the question put to them were precise. I was equally impressed with their demeanor. The information the minor first gave to the people in authority they first met was the same and remained so through the trial. 24. The appellant submitted that there were inconsistencies in the prosecution case as the children could not recall the dates on which they were sexually assaulted. It is true and understandable that the children could not remember the dates on which the incidents took place. However, the testimony of the other witnesses to whom the children reported and the investigating officer were able to place the incidents on specific dates and the entire evidence formed a seamless series of events. 25. When considered alongside the prosecution evidence, the appellant’s defence that he was being framed could not hold any water as the specific incident he referred to was not put to PW 4 or PW 5 in cross-examination. His testimony did not in any way cast doubt on the facts narrated by each complainant. I therefore find and hold that the prosecution proved the elements of penetration by the appellant beyond reasonable doubt. 26. The final ingredient of the offence of defilement is the age of the child. Proof of age is a question of fact. All the children gave their respective ages and the fact that they were going to primary school was unchallenged. The children ages were assessed by the Clinical officer. PW 1’s age was assessed as 6 years in the P3 form. PW 2’s age was assessed as 7 years while PW 3 was determined to be aged 10 years. There is overwhelming evidence that children were below 11 years old hence within the bracket of the law, that is, section 8(2) of the Sexual Offences Act, which attracts a mandatory life sentence. 27. Before I conclude the judgment, I turn to consider some procedural issues raised by the appellant. He submitted that the charge sheet was defective as it cited an unknown provision of the law to charge him. While it is correct that to state that the Sexual Offences Act does not contain “section 8(1)(2)”, the facts constituting the offence were clearly set out in the charge sheet leaving no doubt that the appellant was facing a charge of defilement. He was therefore not prejudiced as sufficient information was provided in the charge (see Kipkurui arap Sigilai & Another v Republic KRC HCCRA Nos. 8 & 9 OF 2004[2004]eKLR ). 28. The issue of legal representation under Article 50(2)(h) of the Constitution was dealt with by the Court of Appeal in the case of Karisa Chengo and Others v R MLD Criminal Appeal No. 44, 45 & 76 of 2014[2015]eKLR. The provisions states that every accused person has a right: To have an advocate assigned to the accused person by the State and at State expense, it substantial injustice would otherwise result, and to be informed of this right promptly. 29. Whether the right is violated depends on whether substantial injustice would result. In Karisa Chengo (Supra) the court held as follows; Substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise. 30. For an accused to qualify for legal representation under Article 50, it must be evident that such a person charged with a capital offence cannot afford legal representation thereby compromising the trial in

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one way or another. In the instant case, the appellant was charged with the offence of defilement which is not a capital offence. In the circumstances 23. Finally, the trial magistrate held two life sentences in abeyance on the ground that they could not be served concurrently. There is no reason that the sentences could not be served concurrently (see Antony Kiama Muchiri v R CA NYR Criminal Appeal No. 426 of 2009 [2010]eKLR). I accordingly set aside the order holding the sentences in abeyance and direct that the all the life sentences shall be served concurrently. 31. The conviction is affirmed but save to the extent that the life sentences shall run concurrently, the appeal is dismissed. DATED and DELIVERED at KAKAMEGA this 1st day of September 2017. D.S. MAJANJA JUDGE Appellant in person. Mr Ng’etich, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.

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