Albert Nyaga Ndaru v Republic

5. The appeal is premised on the grounds that: 1. That the trial magistrate erred in law and in fact in convicting the accused on unsatisfactory and contradictory evidence between the victim and her witnesses; 2. That the trial magistrate erred in law and in fact in convicting the appellant when there was no evidence to prove the case beyond any reasonable doubt; 3. That the Learned trial magistrate erred in Law and Fact when she failed to conduct voire dire Examination on the Victim who was a Child of tender years as stated in the Judgment; 4. That the trial court erred in law and fact by failing to consider the Appellant's Defence especially the defence of alibi; 5. That the trial Magistrate failed to comply with the law by not giving reasons for believing the Victim's evidence especially since no one else witnessed the ofience apart from the said Victim; 6. That the trial magistrate erred in law and fact by failing to consider the defence by the appellant and his witnesses without giving good reasons for its rejection; 7. That the decision of the trial court was against the weight of evidence on record; 8. That the Learned trial Magistrate erred in Law and Fact when she failed to consider that the charges against the Appellant were not supported by the medical evidence; 9. That the Learned trial Magistrate erred in Law and Fact in sentencing the Appellant to the minimum sentence under the law without considering the Appellant's mitigation; and 10. That the judgment by the trial Magistrate never met the requirements under Section 169 of the Criminal Procedure Code on contents of a judgment. Summary of the Evidence in the Trial Court 6. PW1 was the victim, FWM. She testified that the appellant, a neighbour, called her from her home and asked her to follow him to his house to do ‘bad manners’. When they got there, he undressed her and himself and then inserted his penis into her vagina as she lay on his bed. She stated that she felt pain and she was bleeding. She did not scream because the appellant threatened to cut her into pieces and throw the pieces in the forest. 7. Afterwards, the appellant gave her Kshs.5/= and a ring and he did not tell her what they were for. She went home and told her aunt about the incident after 1 day. Her aunt took her to the hospital and they reported the incident to the police. In cross-examination, she stated that she used the Kshs.5/= given to her by the appellant to buy a sweet on her way home. That no one saw the appellant defiling her but he was summoned to the chief and village elders after the matter was reported. 8. PW2 was PW1’s aunt. She testified that on 26th August 2023, she had visited PW1 and when she was leaving PW1 came and told her that she had been defiled by the appellant, who afterwards, gave her Kshs.5/= and a ring. That the incident occurred on 18th July 2023. That the appellant had threated to cut her into pieces if she told anyone about the incident. PW2 called PW1’s mother who was away in Meru, and she came back on 28th August 2023. It is then that they took PW1 to the hospital for examination, and the matter was then reported at Kiritiri Police Station. 9. She stated that the appellant had been working at a neighbour’s compound but by the time the incident was reported, he had left. PW2 identified the appellant in the dock. In cross-examination, she stated https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1201/eng@2026-02-04 2

page 2 of 8

that PW1 told her that the appellant had defiled her 7 times but she did not tell her mother out of fear. That when the matter was reported, the appellant’s employer was also informed and he helped with tracing him. 10. PW3 was PW1’s mother. She testified that on 26th August 2023, she had traveled to Meru when she was called by PW2 telling her that she had something serious to discuss. She travelled back home the following day and PW2 informed her that PW1 had been defiled by the appellant. On 28th August 2023, she took PW1 to the hospital and the matter was reported at Kiritiri Police Station. She said that PW1 told her that the appellant said he would cut her body into pieces if she told anyone about the defilement. 11. The appellant’s former employer assisted to track and trace the appellant since he had stopped working for him. After about 1 year, the appellant was arrested and charged with the ofience. In crossexamination, PW3 stated that PW1 was defiled on 18th July 2023 and the matter was reported on 28th August, 2023 at which time PW1 was also examined. 12. PW4 was PC Jeremiah Njeru, the Investigating Officer in the case. He stated that on 29th August 2023, PW1, PW2 and PW3 reported the matter at Kiritiri Police Station. They said that the incident occurred on 18th July 2023 and that the appellant is the person who defiled PW1. He obtained a copy of PW1’s birth certificate to ascertain her age. He traced the appellant for a long time before arresting him and charging him with the ofience. 13. PW5 was Christine Ngari, a clinical officer at Kiritiri Health Center. She testified on behalf of her colleague Harriet Ireri who examined PW1. She produced the P3 form in which the examination indicated that PW1’s hymen was missing, and the injuries were about 6 weeks old. She also produced the PRC form and treatment notes and stated that PW1 was treated for an infection related to defilement. She stated that from the examination, it was apparent that PW1 was defiled. 14. DW1 was the appellant who gave an unsworn statement. In his defense, he denied committing the ofience. He stated that between 15th June 2022 and 2nd July 2023, he was at Kindaruma working, thus he was not around the scene. He stated that he was being accused falsely. 15. DW2 was Kelvin Muturi Muringi who stated that the appellant worked as his employee between 15th June 2022 and 2nd July 2023 before he left and said he was going home to look for work elsewhere. That on 3rd July 2023, the appellant returned to collect his clothes and he returned again on 6th January 2024. He said that he did not know whether the appellant defiled a minor while he was working at his farm. In cross-examination, he stated that when police officers came looking for the appellant, he cooperated with them and the appellant was arrested at Karura where he was working. Parties’ submissions on the appeal 16. In his submissions, the appellant argued that PW1’s testimony was recorded before a voire dire examination was conducted, hence it is not credible evidence. He relied on the cases of Samuel Warui Karimi v Republic [2013] KEHC 1483 (KLR), Sammy Ngetich v Republic [2018] KEHC 330 (KLR) and Abdi Abdiraham & another v Republic (2013) eKLR where the courts held that evidence of minors recorded before conducting voire dire was moot. On that basis, he argued that the testimony of PW1 on identification of her assailant could not stand in light of section 124 of the Evidence Act. That the trial court itself stated that PW1 was a child of tender years yet failed to conduct a voire dire as required. The appellant urged the court to dismiss the appeal. 17. In its submissions, the respondent relied on sections 2 and 8(1 &2) of the Sexual Offences Act, Rule 4 of the Sexual Ofiences Rules 2024 and the cases of Hadson Ali Mwachongo v Republic [2016] KECA https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1201/eng@2026-02-04 3

page 3 of 8

521 (KLR) and Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR). It stated that the ofience was proved beyond reasonable doubt and that the trial court considered the age of PW1 and regarded her as a credible witness. 18. It cited section 19 of the Oaths and Statutory Declarations Act and the case of Mkala Nduria v Republic [2019] KEHC 3215 (KLR) where the court relied on the Court of Appeal’s decision in Maripett Loonkomok v Republic [2016] KECA 520 (KLR) it argued that PW1 was able to understand the case and what was required of her. As such, that no prejudice was sufiered by any party without voire dire. Further reliance was placed on the cases of Republic v GNK [2017] KEHC 3441 (KLR), Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2021] KESC 31 (KLR) and section 354(3)(b) of the Criminal Procedure Code. The respondent urged the court to dismiss the appeal. Issues for Determination 19. The issues for determination are as follows: 1. Whether failure to conduct voire dire with respect to PW1’s evidence renders the appellant’s conviction unsafe; 2. Where or not the ofience was proved beyond reasonable doubt; 3. Whether or not the sentence should be set aside. Analysis and Determination 20. In determining the appeal, the role of this Court is to re-evaluate the evidence adduced before the trial court and make its own decision. In the case of Kiilu & Another v. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “ An 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 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 a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 21. The first issue is whether the trial court’s failure to conduct a voire dire examination renders the conviction unsafe. Section 19 of the Oaths and Statutory Declarations Act provides that: “ (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 ofience, 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1201/eng@2026-02-04 4

page 4 of 8

(2) 22. Where a person or child of tender years is to testify, the trial court was required to give its opinion on whether that child understood the proceedings, the meaning of an oath and whether she was possessed of intelligence to testify under oath. This was the case in respect of PW1’s evidence. PW1 gave sworn evidence but the trial court did not conduct and record a voire dire examination prior to placing the witness under oath. However, in its judgment, the trial court went on to state as follows regarding PW1’s testimony: “ 5. 23. If any child whose evidence is received under subsection (1) wilfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an ofience and liable to be dealt with as if he had been guilty of an ofience punishable in the case of an adult with imprisonment.” When PW1 appeared before this court, an assessment of her outward appearance was that of a child of tender years. Her demeanour was that of a child and she appeared genuine as she did not portray any lying tendencies. Therefore, this court is opined that her testimony was truthful...” The appellant’s contention is that the trial magistrate referred to PW1 as a child of tender age, hence it would have been required that a voire dire examination be conducted. In essence, he is challenging competency of the witness to testify. Section 125(1) of the Evidence Act provides: “ All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.” 24. It must be noted here that although Section 125 of the Evidence Act, cited herebefore, provides that all persons are competent to testify, it also, makes an exception for persons of tender years, extreme old age and those ailing in mind or body. For these categories of persons, other consideration apply before competency is presumed. 25. In the case of Maripett Loonkomok v Republic [2016] KECA 520 (KLR), the Court of Appeal discussed who is a child of tender years, given that the Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on the matter. The court stated: “ The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R, Criminal Appeal No.137 of 2014 and in Samuel Warui Karimi v R Criminal Appeal No.16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honored 14 years remains the correct threshold for voire dire examination. It follows from a long line of decisions that voire 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1201/eng@2026-02-04 5

page 5 of 8

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 voire dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.”” 26. A voire dire examination, is required for the taking of evidence of a child of tender years. However, there is no specific formula for conducting it. Discretion is left to the trial court to determine how it will satisfy itself as to the competency of a child witness. In this case, the trial court did not so satisfy itself prior to taking PW1’s evidence, but after taking the evidence it observed in its judgment that the child was of tender age and concluded that the child was truthful. Courts have long taken the position that before recording the testimony of a child witness, whether under oath or not, it is preferred that a trial magistrate records reasons why he/she thinks the witness is competent to testify under oath. In the case of Julius Kiunga M’birithia v Republic [2013] KEHC 546 (KLR), the court stated: “ …it is desirable that the magistrate records specifically that he is satisfied that the child understands the duty of telling the truth. Nonetheless, the trial magistrate fully complied with the requirements of section 19 of Cap 15 of the laws of Kenya by making a specific finding on the matter before receiving the evidence of the complainant.” [Emphasis added] 27. 28. In the present case, the trial court received the evidence of PW1 without conducting a voire dire examination prior to recording the evidence, and without indicating at the time of taking the evidence, the observation as to understanding, demenour, appearance or genuineness and so on for the parties to be aware. In her judgment, the trial magistrate did indicate her reasons for believing the testimony of PW1 even though she was a child of tender years. This acknowledgement by the court came after the fact that: (a) the evidence of PW1 had already been received and considered for purposes of both finding a case to answer and the judgment; and (b) the same evidence was critically used to identify the appellant as the victim’s assailant in line with section 124 of the Evidence Act. It is important that the observation of the court on competence of the child witness be recorded before taking the actual probative evidence of such a witness. This enables the accused to know how to predicate their defence. It was held in the case of Samuel Wahini Ngugi v Republic [2012] KECA 180 (KLR) as follows: “ From the above, it is clear to us that the complainant in this appeal was a child of tender age and the court had to comply with the provisions of section 19 of the Oaths and Statutory Declaration Act (Chapter 15, Laws of Kenya) before receiving his evidence. How does the court ensure that it complies with the provisions of that section? The answer to this question is found in this Court’s judgment in the case of Johnson Muirui vs. R (1983) KLR 445, when this Court stated on pages 448 – 449 as follows:“We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are tendered as witnesses. In Peter Kiriga Kiune, Criminal Appeal No. 77 of 1982 (unreported) we said:“When in any proceeding before any court, a child of tender years is called as a witness, the court is required to form an opinion, on voire dire examination, whether the child https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1201/eng@2026-02-04 6

page 6 of 8

understands the nature of an oath in which event his sworn evidence may be received. If the court is 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 (section 19, Oaths and Statutory Declarations Act Cap 15). The Evidence Act (section 124, Cap 80). It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided, and not be forced to make assumptions.”” 29. In the present case, the charge clearly indicated that the victim, PW1, was aged 11 years. This announced to the world both the tenderness of age, the cruelty of the ofience, and the seriousness of the penalty upon the criminal standard of proof and conviction for the ofience charged. PW1 merely took the stand, was sworn in and testified and was cross examined. There was no indication that PW1 understood what an oath was (such as the one she took) or what telling lies or the truth meant. There was no caution taken by the trial Court to ensure the sanctity and propriety of the evidence received against the accused. 30. It appears that it was only towards the end of his judgment - four paragraphs before conviction – that the learned trial magistrate discovered that he had to make mention of the question of the competency of the evidence of PW1, the child of tender years. He then commented on her demeanor and genuineness, and opined that her testimony was truthful. Even then, those statements were not borne from the record of proceedings. In any event, the child had not been tested with regard to any of those points. 31. In my considered view, the accused person’s right to fair hearing under Article 50(2) of the Constitution is non-derogable. One of the ways of exercising and safeguarding this right is through the necessary step of conducting a voire dire examination prior to recording the testimony of a child witness. That is the place and time where, and at which the court observes that the child is of tender age, determines aspects of understanding, competency or truthfulness. Recording the competence of a child witness after their testimony has already been recorded and considered is inconsequential and it takes away the right to fair hearing which the appellant is entitled to. It is akin to putting the cart before the horse, namely, receiving and believing a child’s evidence, then determining it was genuine though untested as required in law. 32. It follows that, on the second issue, the trial court ought to have established all the 3 elements of the ofience of defilement through examining the evidence adduced. Without delving into the evidence by PW1, it is clear that she was the only eye witness of the incident and under section 124 of the Evidence Act, her testimony should be sufficient. However, with the finding made herein that PW1’s testimony does not benefit presumption of competency, this limb of the case falls by the wayside. Looking at all the other witnesses, it is evident that they were informed of the incident by PW1 who is not deemed a competent witness. 33. The third issue for determination cannot, therefore, be considered because the first 2 issues herein form the basis for overturning the decision of the trial court for failure to conduct a voire dire examination of the tender witness PW1 before recording her testimony. The conviction entered by the trial court is therefore unsafe. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1201/eng@2026-02-04 7

page 7 of 8

Disposition 34. In the result, the appeal has merit and it is hereby allowed. The conviction hereby is quashed and the sentence set aside. The appellant shall set at liberty forthwith unless otherwise lawfully held. 35. Orders accordingly. DELIVERED ELECTRONICALLY, DATED AND SIGNED AT EMBU HIGH COURT THIS 4TH DAY OF FEBRUARY, 2026, PURSUANT TO NOTICE ISSUED ON 27TH JANUARY, 2026 AS TO ELECTRONIC DELIVERY. R. MWONGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1201/eng@2026-02-04 8

page 8 of 8