Geoffrey Mwangi Waweru v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CRIMINAL APPEAL NO. 180 OF 2016 GEOFFREY MWANGI WAWERU.............APPELLANT VERSUS REPUBLIC................................................................STATE (Being an appeal from the Judgment of Honourable J. M. Omido Senior Resident Magistrate, delivered on 16 th November, 2016 in Nakuru Chief Magistrate’s Court Criminal Case No. 167 of 2015) JUDGMENT 1. The Appellant was arraigned before the Chief Magistrate’s Court at Nakuru charged with a single count of defilement of a child contrary to section 8(1) as read together with section 8(2) of the Sexual Offences Act. The particulars alleged in the charge sheet were that on diverse dates between July, 2015 and 06/08/2015 at [particulars withheld] Centre in Nakuru North Sub-county, Nakuru County, the Appellant unlawfully and intentionally committed an act by inserting his male genital organ namely penis into the female genital organ (vagina) of one MWA, a girl aged 11 years old, causing penetration. 2. There was also an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. It was alleged that at the same place and time, the Appellant unlawfully and intentionally assaulted MWA by touching her private parts namely breasts, buttocks and vagina with his genital organs, namely penis. 3. After a fully-fledged trial, the Appellant was convicted of the principal count and was sentenced to life imprisonment. He is aggrieved by both the conviction and sentence and has appealed to this Court. 4. The principal complaint raised by the Appellant on appeal is one of defective trial process: that the Learned Trial Magistrate proceeded to swear a child of tender years and relied on her testimony before the Court had satisfied itself that the child understood the meaning of oath. 5. I have perused the Trial Court record. It shows that on 06/09/2016, the Complainant in this case was presented before the Court. The Learned Trial Magistrate records the beginning of her testimony thus: PW1: Female child duly sworn Christian states as follows in Swahili: I am [MWA]. I am 12 years old. I am in [particulars withheld] Primary School….. 6. It is readily obvious that the Learned Trial Magistrate did not conduct voir dire to satisfy himself that the child understood the nature and meaning of taking oath. 7. While the Oaths and Statutory Declarations Act does not define who a child of tender years is, the Courts have held that a child of tender years for purposes of the Oaths and Statutory Act is one the age of under fourteen years (See Kibageny Arap Kolil v R (1959) EA 82; Patrick Kathurima v R Court of Appeal at Nyeri Criminal Appeal No. 131 of 2014). 8. In the present case, MWA was, by her own testimony, twelve years old. She was, indubitably, a child of tender years. 9. The only question, then, is whether the failure to conduct voir dire renders the whole trial a nullity. Our decisional law is unanimous that it fatally vitiates a criminal trial if a witness of tender years is allowed to be sworn and for their evidence to be taken if the Court has not satisfied itself first that the witness understands the nature and meaning of taking an oath. This is by dint of section 19 of the Oaths and Statutory Declarations Act. See Kibageny Arap Kolil v R (1959) EA 82; Patrick Kathurima v R Court of Appeal at Nyeri Criminal Appeal No. 131 of 2014); and Peter Kariga Kiune v Republic (Crim. Appeal No. 77 of 1982). 10. Having reached that conclusion, it follows that the Appeal must succeed on that point alone.

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