Nmm v Republic

The Prosecution’s case 4. The Prosecution called 5 witnesses. PW1 was JMM, the Complainant who testified that she was 13 years old and lived with her grandmother JM. Her parents lived in Machakos. She stated that the she went to Mwala in July 2022. Before that she lived with her parents PW2 (Mother) and PW3 (Father). She stated that she knew the Appellant who was her uncle. In 2021, he defiled her. She did not recall the date. He defiled her in the house. He removed her clothes and did sex to her. She was outside. There was no one in sight. They lived in the same boma. He took her to his house where he did not live with anyone. He took her forcefully and removed her clothes in his house. She had a red dress. He removed her underwear and did sex to her on the bed. He made her lie on his bed forcefully. He removed his penis and put in her vagina. He then removed her outside and chased her outside. He told her if she said, he would beat her. She did not tell anyone. He told her not to say anything. He did it several times. Multiple days. On another day, she was home alone. He forcefully took her to his house and defiled her. She never told her parents. Her siblings had been sent by her mother and she was left at home. There are other people living in the boma. Her uncle was living there but he died. She is usually at home alone. She never screamed as he held her mouth. The last one is the one he capped her mouth. For the sex, he did it so many times. She did not tell anyone. Her father was informed by someone about her defilement. She did not know how that person knew. Her father then came and reported. She did not recall when her father reported. Days had gone by. Her father did not ask her, he never even ask her mother. The Appellant was then arrested thereafter. She was taken to Machakos Level 5 hospital by her father. Her mother had gone to the hospital on the day they went to report. She never told her mother. 5. On cross examination, PW1 stated that the Appellant told her not to play with her classmates who are boys. She never used to be bought Mandazis. The Appellant found her with a classmate who is a boy and chased him. The Appellant told her mother but her mother told him to leave her alone. The Appellant was a watchman at their school and would get home at 5.00pm. They used to be left by the teacher in the school. The Appellant never went to look for her. Her father told the Appellant to cane her if she gets naughty. 6. In re-examination she stated that she would get home at 5.00pm and never got home late. She would find the Appellant already at home. She was never in the company of boys from school. 7. PW2, EM was the mother to PW1. She testified that PW1 was her daughter born in 2009. In 2021 she had been admitted in hospital with her last born when the grandmother to PW1 went to see them. She called her outside and told her something was happening between her child and the uncle. She asked what it was and she said that when the girl is leaving for school in the morning, the uncle calls her to the house, thereafter she goes to school. She told the grandmother to investigate. The next week she came and told her it was still going on. PW2 called the father and told him to handle the matter. The father went home and the grandmother did not go again to see her. Finally, she went home but did not ask him immediately. When she finally asked her, she cried and later told the father. The father took her to hospital and the Doctor’s report indicated she had been defiled. They went to the police station with PW1. The day the Appellant was arrested, she insisted she goes to the medical examination with her daughter. At the police station, the uncle had been around with his mother and sister. He declined to tell her when the defilement started. She refused to say for how long. 8. On cross examination, PW2 stated that when the girl was naughty, they gave the Appellant permission to correct her. The Appellant told her PW1 had been given Ksh.25/- which she threw in the toilet, she did not know about mandazi/mahamri PW1 was given in school. She told the Appellant to leave PW1 alone with regard to her getting home at 6.00pm yet she left school at 5.00pm. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 2

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9. In re-examination she stated that she went to school and asked the teacher to investigate about the money she told her she was given but she put the same in the toilet. In the school, they had peer pressure of being with boyfriends. The issue was handled by disciplinary and settled. The case was settled several months before the Appellant defiled the child. 10. PW3 JMM was the father to PW1. He testified that he as a Mason and usually travels outside for work. The Appellant is his brother. He stated that he heard the news from M who told him he heard from people. The Appellant himself told him nothing. He took PW1 to the hospital and the doctor treated her. He asked PW1 and she said there was nothing she was done for. He then took PW1 to the village elder where she revealed what happened. He was present, PW1 said she was done for nothing. The next day she told him it happened. He took PW1 to Machakos General Hospital where she was treated. He saw the doctor filling a form but did not know what it was. He identified the P3 Form-PMFI.1, PRC Form- PMFI.2 and the Treatment Notes-PMFI.3 He did not ask his brother (Appellant). The Appellant brought himself to the police station to confirm if the allegations were true. PW3 stated that the PW1 was born in 2003, he got married in 2002. 11. On cross examination, PW3 stated that the Appellant was not the one. There was someone forcing this. He did not even understand this himself. The mother (PW2) did not tell him. The grandmother did not tell him. It is true they lived in the same house. He was in Wote and was not around. He was told it occurred in 2021. It is what he was told the Appellant did. He never saw it. He was not told by anyone. No one saw the Appellant defiling PW1. He couldn’t say with certainty the Appellant defiled the child herein. There was no re-examination. 12. PW4 was Dr. Abdul Sheft from Machakos level 5 hospital. He testified that he had the Form filled by Dr. Mutunga who was unwell and admitted. He stated that he had known him for 7 years. PMFI.1 was the P3 Form dated 20/7/2021 for PW1 aged 12 years who was defiled by a person known to her. PW1 had changed her clothes between 1/5/2021 -9/9/2022. 13. Upon examination, she was good. No injuries on head and neck. Approximate age of injuries 1 year and seven weeks. Probable weapon-penile shaft…..offence of defilement. Female hymen normal external genitalia, hymen perforated old. HIV test was negative, VDRL-Negative, pus cells 0.4, victim was calm. PW4 produced the P3 Form as PEXt.1, PRC Form PEXt.2, Treatment Notes PEXt.3, the Registration Form filled PEXt.4. 14. On cross examination, PW4 stated that according to the medical report there was no external injury. There was no re-examination. 15. PW5 was No. 25xxx PC Veronica Nduva who testified that on 17/7/2022, she was instructed by the OCS Machakos to investigate this case. PW3 came to the station with PW1 between 2021 -July 2022. She was defiled by the Appellant who was before court. She called PW3 who came with PW1 and PW1 was examined. A PRC Form was filled and she recorded statements. That PW1 said for the period, last day 9/7/2022 the Appellant forced her into his house. He lifted her dress removed her pant, inserted his penis into her vagina and defiled her. Her grandmother was told but she did not report. She told a family member and the family member told the chief. The Chief forced the parents to report. They then arrested the Appellant and charged him. PW1 was 12 years old. They obtained the Birth Certificate but they said it was lost. An age assessment was conducted. She produced the Age Assessment Report dated 16/7/2022 as PEXt.5. She stated further that the Report conducted https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 3

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using the doctor’s records at Machakos Level 5 showed PW1 was 12 years old. She testified that she saw the Appellant in court in the dock. That the Complainant was shaken especially when she calls the Appellant uncle. There was no cross examination. The Prosecution case was closed. The Defence case 16. DW1 was the Appellant who gave sworn evidence. The Appellant testified that he worked in Mombasa and lived in Mumbuni. He sold flowers for a company. He recalls the charges were fabricated. There is a shamba dispute. His brother AM did not want him at home and told him to leave. When he asked why, the brother told him he did not want to know and threw a stick at his ribs. Whenever he washed his clothes his brother’s children would put dirt. They prepared porridge and send the children to bring to him and the child told him they had put broken glasses in it so he didn’t drink it. He went to live in the centre for some time. The brother went and stabbed him with a knife on the head. He went to hospital but he had lost the treatment notes. 17. On cross examination, the Appellant stated that he had lived at home for sometimes. He used to live in Mombasa in 2021 but now he lived at home. He left home in 2022. In January to March, he was at home. 18. In May 2021, he was not in the house. The report before court was not true. In 2021, he came in January and was employed as a watchman. The shamba is for their home. In his shamba he has planted avocados and trees. He knew the Complainant was his brother’s child. In 2022, they all lived together. He went to hospital once when he was stabbed on the head and hit on the ribs. He told MK. His brother (PW3) came when drunk and disturbed him. The Appellant then closed his case. 19. The trial court upon considering the evidence tendered, on the 21st November 2023 it convicted the Appellant and sentenced him to serve a life imprisonment sentence. 20. Being dissatisfied by the trial court’s decision, the Appellant filed the instant appeal challenging both the conviction and sentence. The grounds of appeal raised are as follows: i. That the trial court erred in both point of law and fact by failing to observe that the prosecution's case was marred with inconsistencies and contradictions and hence did not prove their case beyond reasonable doubt. ii. That the trial court erred in both points of law and fact by not finding that the evidence adduced by the prosecution cannot be sustained a conviction iii. That the trial court erred in both point of law and fact by upholding conviction and sentence without observing that the entire prosecution case was impeachable iv. That the trial court erred in law and facts by failing to give the applicant's defence adequate considerations. v. That the trial court erred in both point of law and fact by failing to observe that the prosecution failed to recall crucial witnesses to prove its case against the accused person as provided for in Article 50(2)(c) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 4

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21. 22. Through his written submissions, the Appellant claimed that he filed the petition of appeal before receiving the trial court’s proceedings and judgement making it difficult for him to raise fully informed grounds of appeal and upon receiving the same, he sought to amend the original grounds of appeal and rely on there following amended grounds of appeal: I. That the learned trial Magistrate erred in law and fact by failing to conduct a voire dire examination on the complainant as required under Section 125(1) of the Evidence Act and Section 19(1) of the Oaths and Statutory Declarations Act, before receiving her evidence under oath, thereby rendering her testimony legally inadmissible without corroboration, and fatally undermining the credibility and probative value of her evidence. II. That the learned trial Magistrate erred in law and in fact by convicting the Appellant based on the testimony of the complainant, who was not a credible witness, having given inconsistent, contradictory, and selective evidence that cast serious doubt on her reliability. III. That the learned trial Magistrate erred in law and fact by relying on evidence that was riddled with contradictions, inconsistencies, and discrepancies, particularly in the testimony of the minor, which could not be relied upon without corroboration therefore section 124 of the Evidence Act was inapplicable. IV. That the learned trial Magistrate erred in law and fact in convicting the Appellant where the element of incest namely identification was not established beyond reasonable doubt, thereby rendering the conviction unsafe. IV. That he learned trial Magistrate erred in law and in fact by convicting the Appellant despite the prosecution's failure to avail crucial witnesses, including the alleged first report recipient and other key persons mentioned in evidence, thereby leaving material gaps in the prosecution's case and denying the Appellant a fair trial. IV. That the learned trial Magistrate erred in law and fact by imposing a sentence of life imprisonment that is unconstitutional, as it fetters judicial discretion and violates the Appellant's fundamental rights under Articles 27, 28, 29, and 50 of the Constitution of Kenya, 2010. The Appeal was heard through written submissions. The Appellant’s submissions are dated 14th July 2025 whilst the Respondent’s submissions are dated 13th May 2025 filed by Ms. Abang Agatha, Prosecution Counsel. Those submissions replicate the summary above and I wish not to duplicate the same here Analysis and Determination 23. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: “ An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 5

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findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 24. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 25. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:“ The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 26. In the case of Mwangi vs Republic [2004] klr 28. It was held as follows: “ Any appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate courts own decision on the evidence” 27. Having considered the trial court’s record, the judgement, the amended grounds of appeal and the submissions of the parties, I find the following as issues for determination; a. Whether the prosecution proved the case beyond reasonable doubt b. Whether the sentence should be reviewed a. Whether the prosecution proved the case beyond reasonable doubt 28. It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.” 29. In this case, the Appellant was charged and sentenced for the offence of Incest under Section 20 (1) of the Sexual Offences Act which provide as follows:(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 6

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granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years: Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” 30. The ingredients for the offence of incest can be summarized as follows:i. Proof of the age of the victim ii. Proof of penetration or indecent act iii. proper identification of the perpetrator. iv. Proof that the offender is a relative of the victim, i. Proof of the age of the victim 31. PW1 testified that she was 13 years in the year 2023. PW4 stated that on the P3 Form it was indicated she was 12 years. PW5 conducted an age assessment and produced as PExt.5 which indicated she was 12 years old. 32. The Court of Appeal in Mwalango Chichoro Mwanjembe v Republic (2016) eKLR held that: “ the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documentary evidence such as birth certificate, baptism cars or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardians or medical evidence among other credible forms of proof " 33. The Appellant did not dispute that the victim PW1 was aged 12 years as proved by the Prosecution however he raised an issue concerning the taking of PW1’s testimony by the trial court. The Appellant submitted that no voire dire examination was conducted on PW1. I will consider this issue later in this judgment. ii. Proof of penetration or indecent act 34. On the issue of penetration, the same is defined in Section 2 of the Sexual Offences Act as; “ penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person” 35. PW1, the Complainant testified that in 2021 the Appellant defiled her. She stated that "he did sex to me" The Appellant took her to his house and took her forcefully and removed her clothes in his house. He removed her innerwear and dis sex to her on the bed. PWI testified that the Appellant made her lie on his bed forcefully, removed his penis and put it in her vagina and he thereafter chased her away. She testified that the Appellant did it several times, multiple days. 36. PW4 produced the P3 Form PExt.I and PRC Form PExt.2. He testified that female hymen, normal external genitalia, hymen perforated held. The doctor concluded that there was defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 7

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37. From a careful reading of the record, I entertain doubts as to whether PW1, the complainant was really defiled by the Appellant. From her own evidence, the Complainant stated thatthe Appellant forcefully took her to his house and defiled her. She never told her parents. Her siblings had been sent by her mother and she was left at home. There are other people living in the boma. Her father was informed by someone about her defilement. She did not know how that person knew. Her father then came and reported. She did not recall when her father reported. Days had gone by. Her father did not ask her, he never even ask her mother. The Appellant was then arrested thereafter. 38. PW2, her mother stated that she had been admitted in hospital with her last born when the grandmother to PW1 went to see them. She called her outside and told her something was happening between her child and the uncle. She asked what it was and she said that when the girl is leaving for school in the morning, the uncle calls her to the house, thereafter she goes to school. She told the grandmother to investigate. The next week she came and told her it was still going on. PW2 called the father and told him to handle the matter. The father went home and the grandmother did not go again to see her. Finally, she went home but did not ask her immediately. When she finally asked her, she cried and later told the father. The father took her to hospital and the Doctor’s report indicated she had been defiled. They went to the police station with PW1. PW2 stated further that the Complainant refused to say for how long it had happened and that in the school, they had peer pressure of being with boyfriends. 39. PW3, the father stated that he heard the news from M who told him he heard from people. The Appellant himself told him nothing. He took PW1 to the hospital and the doctor treated her. He asked PW1 and she said there was nothing she was done for. He then took PW1 to the village elder where she revealed what happened. The Appellant brought himself to the police station to confirm if the allegations were true. PW3 stated there was someone forcing this. He did not even understand this himself. The mother (PW2) did not tell him. The grandmother did not tell him. He was told it occurred in 2021. It is what he was told the Appellant did. He never saw it. He was not told by anyone. No one saw the Appellant defiling PW1. He couldn’t say with certainty the Appellant defiled the child herein. 40. PW4 Dr. Sheft testifying on behalf of Dr. Mutunga stated that there were no injuries on head and neck. Approximate age of injuries was one year and seven weeks. Probable weapon was penile shaft. Female hymen normal external genitalia, hymen perforated old. HIV test was negative, VDRL-Negative, pus cells 0.4, victim was calm. 41. PW5, the Investigating Officer stated that PW1’s grandmother was told about the defilement but she did not report. She told a family member and the family member told the chief. The Chief forced the parents to report. They then arrested the Appellant and charged him. She testified that she saw the Appellant in court in the dock. 42. The first question I pause to ask is, how was it then possible for the Appellant to defile the complainant for all that long without other people living in the boma noticing? The alleged manner in which the Complainant’s father was informed by someone about her defilement and that she did not know how that person knew also leaves a lot to be desired. 43. It is also instructive that the grandmother, M who told the father he heard from people, the village elder and the Chief were never called to testify to back up the Complainant’s story. There is no explanation whatsoever why they were or one of them not called to testify. There is no evidence that the grandmother did anything to confront the Appellant or alert anyone when she noticed it was still going as she told the mother at the hospital after a week. As things stand, if the complaint was indeed defiled, then the same happened under the watchful eyes of her grandmother, which to me is incredible. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 8

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44. It is also strange how the mother when she went home from the hospital did not ask the complainant immediately about the allegations, something I believe no mother in her sane mind can hold onto even for a moment particularly for such disheartening news and that when she finally asked her, she cried and later told the father. Why not tell the mother who had asked her?. PW2 stated further that the Complainant refused to say for how long it had happened and that in the school, they had peer pressure of being with boyfriends, could she have had sex with her boyfriend and not the Appellant? 45. From the evidence recorded, PW3, the father to the Complainant stated that he heard the news from M who told him he heard from people. The Appellant himself told him nothing. He asked PW1 and she said there was nothing she was done for. He then took PW1 to the village elder where she revealed what happened. The Appellant brought himself to the police station to confirm if the allegations were true. PW3 stated there was someone forcing this. He did not even understand this himself. The mother (PW2) did not tell him. The grandmother did not tell him. He was told it occurred in 2021. It is what he was told the Appellant did. He never saw it. He was not told by anyone. No one saw the Appellant defiling PW1. He couldn’t say with certainty the Appellant defiled the child herein. 46. PW5, the Investigating officer stated that PW1’s grandmother was told about the defilement but she did not report. She told a family member and the family member told the chief. The Chief forced the parents to report. They then arrested the Appellant and charged him. She testified that she saw the Appellant in court in the dock. 47. The Investigating Officer’s testimony that they arrested the Appellant and charged him but again she states that she saw the Appellant in court in the dock, does not make sense. 48. Strangely enough, as already observed, the alleged M who told PW1’s father about the defilement, the grandmother to Complainant who told her mother at the hospital that something was happening between her child and the uncle and when she returned to hospital after a week and still told the mother the thing was still happening , the village elder who made the Complainant to reveal what happened and what it was, the family member who informed the Chief and the Chief who forced PW1’s parents to report were never summoned to testify. 49. With regard to the evidence of PW4, the clinical officer, he did not personally examine the Complainant but was testifying on a report prepared by another doctor who was said to be sick. He stated that the medical form indicated that upon examination of the Complainant, she was good. No injuries on head and neck. Approximate age of injuries 1 year and seven weeks. Probable weapon-penile shaft…..offence of defilement. Female hymen normal external genitalia, hymen perforated old. The report indicates that there were no injuries but at the same time it shows that the approximate age of injuries was one year seven weeks and the probable weapon as per the medical form was a penile shaft. Further he observed that the only positive finding was a perforated hymen. However, he could not attribute that perforated hymen to sexual assault. He only stated that the offence was defilement. In the absence of such nexus, I do not see how the trial court could have come to the conclusion that the Complainant was sexually assaulted. The perforated hymen could as well have been caused by any other activity other than sexual contact or probably by sexual contact through the peer pressure of being with boyfriends as stated by the Complainant’s mother. 50. On the foregoing, I find that the trial court erred in finding that she was convinced that due to the fact that the Complainant had a perforated hymen, she was defiled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 9

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iii. proper identiffcation of the perpetrator. 51. PW1 knew the Appellant as he lived in the same area as her and her parents. She further testified that the Appellant defiled her severally. PW2 and PW3 confirm the Complainant told them the assailant was the Appellant. PW2 testified she was told by the grandmother that the Appellant would take the Complainant to the house in the morning before she goes to school and she was certain something wrong was happening. Identification was by recognition which was the best form of identification. I agree that the Appellant was correctly identified by recognition but the fact remains that it has not been proved he is the one who defiled the Complainant herein. iv. Proof that the ofiender is a relative of the victim, 52. There was no dispute that the Appellant and the Complainant PW1 are related being uncle and niece respectively. PWI testified that the Appellant was her uncle and the brother to her father. This is corroborated by PW2 and PW3 who refer to the Appellant as the Complainant's uncle. PW3 further confirmed that the Appellant was his brother. The Appellant stated that he knew the Complainant was his brother’s child. There is no doubt that the Complainant and the Appellant were related. Voire Dire Examination 53. Back to this issue, the only person who testified as to the event was the Complainant herself. 54. I have gone through the evidence on the trial court’s record and noted that the Appellant was convicted on the evidence of a single witness aged 12 years. I am not satisfied that her evidence was recorded incompliance with Section 19 of the Oaths and Statutory Declarations Act Cap 15 nor did the Learned Magistrate warn herself of the dangers of convicting on the basis of this evidence. 55. In order for the court to decide whether the Complainant will give sworn or unsworn evidence, the court is required in the case, the victim of the sexual offence to conduct a voire dire on her/him. This is in order for the court to be informed accordingly while making its determination. 56. Voire dire examination is a hearing to determine the admissibility of evidence or the competency or qualification of a witness or juror (See Duhaime, Lloyd. "Voir Dire definition" Duhaime's Legal Dictionary). 57. Subjecting a witness of tender age to voire dire examination is founded under Section 125 (1) of the Evidence Act, and Section 19 (1) of the Oaths and Statutory Declarations Act to enable the court satisfy itself that the child understand the importance of the truth and consequences of lying as was held in the celebrated case of Johnson Muiruri Vs Republic [1983] KLR 445, Madan, Porter JJ & Chesoni ,JA and reiterated in the Court of Appeal decision in the case of Japheth Mwambire Mbitha v Republic [2019] eKLR, Criminal Appeal No. 24 of 2018. See also Joseph Opando V Republic, Criminal Appeal No. 91 of 1999. 58. These provisions require the trial court to satisfy itself that a child understands the nature of an oath and appreciates the importance of telling the truth. This safeguard ensures that only competent, reliable evidence is admitted in serious criminal trials. In the case of Samuel Warui Karimi v Republic [2016] eKLR it was held: “ …voire dire is an examination that serves two purposes; one, it is a test of the competency of the witness to give evidence and two, a means of testing whether the witness understands the solemnity of taking an oath. Thus under the Evidence Act, the test is one of competency as the court is supposed to consider whether the child witness is developmentally competent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 10

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to comprehend the questions put to him or her and to offer reliable testimony in criminal proceedings. It, therefore, follows if the child is not competent to comprehend the evidence, they cannot also give sworn evidence.” 59. In the present case, the minor (PW1) testified under oath, yet the record shows that no voire dire examination was conducted at all. The learned trial magistrate summarily received the child's testimony under oath without first making an inquiry into her intelligence, appreciation of truth, or understanding of the nature of an oath. 60. In her judgement, the trial Magistrate observed that she had no reason to doubt the minor’s testimony. She was satisfied she was telling the truth, PW4’s report from the hospital corroborated the alleged act of defilement. The Learned Magistrate did not state what made her believe the child was telling the truth. 61. In Johnson Muiruri vs Republic [1983] KLR 445, which was confirmed in the Court of Appeal case of Paul Kinyanjui Kimauku v Republic [2016] eKLR, it was held inter alia that: “ If the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth, In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him. " 62. From the above illustration, it is clear that when a child does not understand the importance of telling the truth, the nature of the oath then the accused cannot be convicted without corroboration as provided for Section 124 of the evidence Act. 63. This is because, where a minor has not been subjected to a voire dire examination to assess whether he or she understands the importance of telling the truth, the credibility of that evidence cannot be conclusively established. In the absence of such an inquiry, the child's testimony lacks the necessary foundation to be deemed competent or reliable as was held in Kinyua v Republic [2002] KLR 256, a position later reaffirmed in Cleophas Ochieng Otieno v Republic [2010] eKLR. 64. Additionally, the trial court failed to record any reasons or findings as to whether the minor possessed sufficient intelligence or understood the duty to speak the truth. This omission was a fundamental procedural error. A court cannot presume the competence of a child of tender years without first conducting a formal inquiry and expressly recording its conclusions on the child's capacity to testify under oath. This omission stands in direct contravention of the principle articulated in Johnson Muiruri (supra) where the Court stated thus: “ The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction. " 65. It is my considered view that the evidence of the minor was improperly admitted, as it was received without compliance with the statutory and judicial safeguards governing the testimony of child witnesses. The failure to conduct a voire dire examination rendered her testimony legally inadmissible in the absence of corroboration and, as such, it ought not to have formed the basis for the Appellant's conviction. See the Court of Appeal in Maripett Loonkomok v Republic [2016] eKLR, Criminal Appeal No. 68 of 2015. 66. Therefore, failure to conduct voire dire examination as required by Section 125 (1) of the Evidence Act, and Section 19 (1) of the Oaths and Statutory Declarations Act, with the absence of corroboration, the evidence of PW1 could not be termed credible to warrant a conviction as the learned trial magistrate https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 11

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relied heavily on the same to convict the Appellant and the same could not be cured by Section 124 of the Evidence Act. 67. I therefore find that the learned trial Magistrate fundamentally erred in admitting the sworn testimony of a child of tender years without first conducting a voire dire examination to determine her competency to testify under oath. b. Whether the sentence should be reviewed 68. The Appellant was sentenced to serve life imprisonment. The Appellant in mitigation stated that he was not present and that he was in Mombasa. The prosecution informed the court that the Appellant was a first offender. 69. Section 20 of the Sexual Offences Act, No. 3 of 20026 provides that: “ Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment för a term of not less than ten years: Provided that, (If it is alleged in the information or charge and proved that the female person is under the age of eighteen years. the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.” 70. In Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023, the Supreme Court of Kenya held that the minimum sentences in the Sexual Offences Act were constitutional the courts are bound by the minimum mandatory sentences as provided for by law. Looking at the circumstances of this case, the sentence was legal and proper as prescribed by law. 71. Had I upheld the Appeal, I would have affirmed the Sentence as was imposed by the trial court. 72. Consequently, and for the above reasons, I allow the appeal, quash the conviction and set aside the sentence. I order that the Appellant be set at liberty unless otherwise lawfully held. 73. It is so ordered. JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 9TH OCTOBER 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 9TH OCTOBER 2025 In the presence of: In person................ for Appellant Ms. Agatha Abang.................. for Respondent Millygrace..................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17150/eng@2025-10-09 12

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