Emmanuel Nyanje Ziro v Republic

3). That the learned trial magistrate erred in law and facts by upholding the conviction while failing to consider that the appellant was not provided with an interpreter and that the language used by the complainant is not clearly indicated in the coram, thus violating the provisions of articles 50 (2) (m) and section 231 (3) of the Criminal Procedure Code. 4). That the learned trial magistrate erred in law and by upholding the conviction while failing to consider that the Appellant`s constitutional rights were violated. 5). That the learned trial magistrate erred in law and facts by upholding the conviction while failing to consider that the crucial witnesses were not called to testify and shed light before the honorable court contrary to the provisions of sections 150 of the Criminal Procedure Code and 164 of the Evidence Act. Case for prosecution 3. The case for the prosecution was that the complainant was a primary school pupil. She was staying with her father, PW2 in the case and a grandmother who did not testify in the case. She used to sleep on the same bed with her grandmother. The Appellant was a “fundi” and used to be given work at the home of the complainant by the complainant`s father. 4. It was the evidence of the complainant that on 5/3/2022 she was at home. Her grandmother was working in the shamba not far from their home. That the Appellant had been given work at the home by her father to fix a bed. That at around 10 am her grandmother sent her to their house to pick a cup. She found the Appellant inside the house. He held her and dropped her down. He removed her clothes and started to have sexual intercourse with her. She screamed and her grandmother went to her rescue. When he heard her grandmother coming he left her. She found him naked and was dressing up. She started to quarrel him. He asked for forgiveness. A person called Katana went towards their home. The Appellant ran away. Her grandmother sent her to call her father. She went and called him. She reported to him what had happened. She was taken to hospital and they reported to the police. 5. It was the evidence of the complainant that the Appellant had defiled her about 5 times before that date. He had threatened to kill her if she told it to anybody. That after defiling her he would give her money. There is a time he gave her Ksh. 50/= and other times Ksh.100/=. He was telling her to buy sweets with the money. 6. The father to the complainant PW2 testified that he is a boda boda operator. That on 5/3/2022 he left home at 6 am and went to work. On the way he met with the Appellant. He had given him work to remove a tree that had fallen on his house. The Appellant went to do the work. Not long after, he saw the Appellant. He told him that he had finished the work. He wondered how it had taken such a short time to complete the work but he paid him. His daughter, the complainant, then went to him and told him that his mother wanted to see him. She was crying. He put her on his motor cycle and they went home. His mother told him that the Appellant had defiled the complainant. He took her to the police and then to hospital. The complainant told him that the appellant had defiled her about 5 times before that date. 7. The complainant was examined at Malindi sub county hospital by Dr. Rimba who found her with scratch marks on the back and posterior shoulder. Her hymen was broken, odema inflamed, the labia majora tender on touch and the minora were reddish. The doctor formed the opinion that there was vaginal penetration and completed a P3 form to that end. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3858/eng@2026-02-23 2

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8. The case was investigated by PC Mutwiri who went on transfer and handed over the police file to PC Nzioki PW4. It was the evidence of PW4 that he went through the statements of witnesses. The Appellant had already been arrested and charged. 9. During the hearing of case in court, Dr. Ibrahim PW3 of Malindi sub county hospital produced the P3 form, the treatment notes, lab request form as exhibits on behalf of Dr. Rimba, P.Exh.2-4 respectively. Defence case 10. The Appellant when placed to his defence stated in an unsworn statement that on the material day he left his home and went to look for money for his work. That on getting to the home of the complainant, the complainant`s grandmother told him to remove her bed from her house. He went and first removed her mattress and went for the bed. Then the complainant`s grandmother entered the house and said that he had defiled the complainant. Submissions 11. The appellant submitted that he was not provided with an interpreter and that the language used by the complainant is not clearly indicated in the proceedings. That the proceedings are silent on the language used during the trial. That the trial violated his right to fair trial under Article 50(2) (m) of the Constitution. 12. The Appellant submitted that he was not provided with copies of the statements for prosecution witnesses which was a violation of Article 50(2) (j) of the Constitution. 13. It was submitted that the charge sheet was defective in that the particulars were too general in terms of time and as such the Appellant could not define the specific date and time so as to prepare his defence. That it is a principle of law that a charge sheet must be clear so that the accused understands the charge he/she is facing. That the want of specification prejudiced the Appellant. 14. The Appellant submitted that the voir dire conducted by the trial court did not meet the standard stipulated in section 19 of the Oaths and Statutory Declarations Act. That voir dire examination is conducted on a child of tender years so as to determine whether the minor understands the meaning of giving evidence while on oath. That the court must record the terms in which it was persuaded that the child understands the nature of oath. That failure to do so is fatal to the conviction. 15. The Appellant submitted that the grandmother to the complainant was a crucial witness in the case but the prosecution failed to call her to testify in the case. That failure to call her caused an injustice to the Appellant. 16. The Respondent on the other hand submitted that the charge against the Appellant was proved beyond reasonable doubt. That the age of the complainant was proved by the birth certificate produced in court. That the Appellant was a person well known to the complainant and he was properly identified. That penetration was proved by the complainant and corroborated by medical evidence. 17. It was submitted that the trial court considered the evidence of the complainant in terms of section 124 of the Evidence Act and believed the complainant to be telling the truth. That the record shows that the evidence of the complainant was reliable, consistent and credible. 18. It was submitted that there are no significant contradictions that would necessitate the court to overturn the trial court`s decision. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3858/eng@2026-02-23 3

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19. In response to the ground that the trial court disregarded the Appellant`s defence, it was submitted that the Appellant gave unsworn evidence in court which was not subject to cross-examination hence was of no probative value. That the Appellant in his defence placed himself at the scene and only denied committing the offence. That the Appellant did not offer any defence except a denial that lacked any probative value. 20. It was submitted that the Appellant never raised the issue of being arraigned in court after 24 hours. That even if that was the case that does not water down the overwhelming evidence that led to his conviction. That the recourse for the Appellant is to file a constitutional reference with the High court but not to seek an acquittal on that ground. That from the court record none of his rights under Article 50(2) of the Constitution were violated. Analysis and determination 21. This being a first appeal, the court has a duty to re-evaluate and re-consider the evidence on record and come to its own conclusion. The court should also appreciate the fact that unlike the trial court it did not have the advantage of seeing and hearing the witnesses. These principles were re-stated by the Court of Appeal in the case of Kiilu & another v Republic [2005]1 KLR 174, 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.” 22. The appellant was facing a criminal charge. Proof in a criminal trial is that of beyond reasonable doubt. Lord Denning in Miller v Ministry of Pensions (1947) 2 All ER, 372 stated as follows on the standard of proof in criminal cases: “ 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.” 23. I have considered the grounds of appeal, the record of the trial court and the submissions of the appellant and those of the respondent. The Appellant raised issues of violation of his rights under Article 50(2) of the Constitution of Kenya, 2010, argued that the charge was defective and that the case against him was not proved beyond reasonable doubt. 24. The Appellant argued that he was not provided with an interpreter and that the language used by the complainant is not clearly indicated in the coram section. 25. Article 50(2) of the Constitution of Kenya 2010, requires a trial court to provide an accused person with an interpreter where the Accused does not understand the language used at the trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3858/eng@2026-02-23 4

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26. I have perused the proceedings of the trial court. The same indicate that when the matter came up in court for plea on 28/3/2022, there was a court clerk present called Zaituni. The record shows that the language of the court is indicated as English/Kiswahili. The record indicates that the charge was read over to the Appellant in Kiswahili language and he responded that: Si ukweli. 26. The court record indicates that there was a court clerk present in all the subsequent proceedings. The prosecution witnesses – the complainant PW1, her father PW2 and the investigating officer PW4 - all testified in Kiswahili language, which was a language understood by the Appellant. The argument by the Appellant that he was not provided with an interpreter does not hold any water. 27. Article 50(2) (j) of the Constitution requires an accused person to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence. The Appellant says that he was not provided with such. 28. The court record indicated that the case came up for mention on 5/5/2022 when the court prosecutor told the court that he had received copies of witness statements and that he was to send them to the accused on that day. The Appellant did not raise the issue on witness statements when the case came up for hearing on 13/6/2022. The complainant was heard and he proceeded to cross-examine her. He did not raise the issue when the other witnesses were heard. It can only mean that he was supplied with the witness statements. His allegation to the contrary has no basis. 29. The Appellant argued that the charge sheet was defective for not being specific on the dates the offence was committed so as to enable him prepare for his defence. The ingredients of a charge sheet is stated in Section 134 of the Criminal Procedure Code which provides that it should constitute the following:“ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. 30. The question as to what constitutes a defective charge sheet was spelt out in the case of Yosefu and another v Uganda (1960) EA 236 where the East African Court of Appeal held:“ The charge was defective in that it did not allege an essential ingredient of the offence; i.e. that the skins came from animals etc, in contravention of the Act." 31. And in Sigilani v Republic (2004) 2 KLR, 480, it was held that:“ The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence." 32. In the present case, I find that the charge disclosed an offence known in law. The particulars of the offence were given which stated that the offence was committed on diverse dates between the months of February and March 2022. The place the offence was committed was stated. It was clear from the evidence that the complainant could not remember the specific dates when the offences were committed over a period of two months as the offence was reported months later after the date of the first commission of the offence. It was her evidence that the offence was committed about 5 times over the stated period. She was not keeping dates of the commission of the offence. The dates the offence was committed were therefore not known, except the date of the last incident. In such https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3858/eng@2026-02-23 5

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circumstances the prosecution was right to describe the period the offence was committed as “diverse dates”. Consequently, it is my finding that the charge sheet in the case was not defective. 33. The Appellant argued that the trial court did not conduct a proper voir dire examination that could have elicited proper information from the minor so as to enable the court determine whether the child understood the nature of oath and the duty to speak the truth. 34. The trial court conducted voir dire in the following manner: What is your name? ASC How old are you? 11 years. Do you go to school? Yes, at [Particulars Withheld] Which class are you in? In class Where do you live? [Particulars Withheld] Do you go to church? Yes, at catholic Who is a good person between one that speaks lies and the one speaking truth? The truth What happens to liars? When they die they are burnt Will you speak the truth? Yes, I will Do you know what is oath? Yes, mtu akila kiapo hua anaongea ukweli hadanganyi. Is it okay if we swear you? I will not be sworn. 35. The law requires voir dire examination be conducted on children of tender age before their evidence is taken in court. A child of tender age was defined in the case of Kibageny Arap Kolil v Republic [1959] EA 92 to mean a child under the age of fourteen years. 36. The purpose of voir dire was explained by the Court of Appeal in Johnson Muiruri v Republic [1983] KLR 445 as follows: 1. “Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3858/eng@2026-02-23 6

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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… 3. When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood. 4. A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth. 5. 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.” 37. The complainant herein was of the age of 11 years. The court record indicates that after the voir dire examination was done the child said that she did not want to be sworn. The trial magistrate recorded down her opinion that the child was possessed of sufficient intelligence to have her evidence received and she understood the importance of telling the truth. The court then ordered that the child gives unsworn evidence. 38. It is clear from the evidence of the complainant as given in the trial court that she was an intelligent girl. She ably answered the questions put to her in evidence-in-chief and in cross-examination. The reason as why the court ordered the complainant to give unsworn evidence is clear from the court record. She was not sworn as she said she did not want to be sworn. I find the voir dire examination to have been properly conducted. I have no reason to fault the finding of the trial court that the complainant warranted to give unsworn evidence. The argument by the Appellant on the issue is dismissed. 39. The last ground of appeal is that the prosecution did not call the grandmother to the complainant who was a crucial witness in the case. 40. There is no doubt that the complainant`s grandmother was a crucial witness in the case. The prosecution did not give any reason why she did not testify in the case. The question is whether the available evidence was sufficient to sustain a conviction even in the absence of the evidence of the complainant`s grandmother. 41. Section 143 of the Evidence Act provides that no particular number of witnesses is required to proof a certain fact. In addition, Section 124 of the Evidence Act allows a court in sexual offences involving children to convict on the sole evidence of a child if the court is satisfied that the child is telling the truth and gives reason for finding so. 42. The trial court in convicting the Appellant of the offence stated that the Appellant had been threatening the complaint after defiling her and was giving her money. That the complainant`s father PW2 corroborated the evidence of the complainant that the Appellant was being given work at the home of the complainant and even that on the material day he had been give work at the home by the complainant`s father. The trial court said that the complainant was truthful and candid and that her evidence was not shaken. That the same was backed by medical evidence as captured in the treatment notes and P3 form. More so, that the Appellant in his defence had placed himself at the scene and notably that the Appellant had given unsworn evidence which was of little probative value. 43. I have re-evaluated both the prosecution and the defence evidence as given before the trial court. The complainant gave a candid narration of the incident that occurred on 5/3/2024. It was her https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3858/eng@2026-02-23 7

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evidence that she was on that day outside her home. That the Appellant had been given work to fix her grandmother`s bed. That her grandmother then sent her into her house to get her a cup. That she found the Appellant inside the house of her grandmother. He held her and started to foddle her breasts and buttocks. He dropped her down and removed her clothes. He started to have sexual intercourse with her. She screamed and her grandmother went to her rescue. He only stopped when he heard her grandmother coming. That her grandmother found him having started to dress up. 44. The Appellant himself admitted that the complainant`s grandmother found him inside her house. That she accused him of defiling her grand-daughter. The Appellant thus placed himself at the scene of the incident and the question was therefore whether the complainant was telling the truth that he defiled her. 45. The complaint further said that the Appellant had defiled her about five times before that date. That the first time he did so was a day her grandmother had gone to attend a “chama” meeting and the Appellant went to her home and found her alone. That he started to touch her breasts and buttocks. He led her to her grandmother`s bed and had sexual intercourse with her. That he threatened to kill her if she told her father of the incident. 46. The complainant said that the Appellant used to give her money after defiling her, such as 50/= or 100/=. He was telling her to buy sweets with the money. That he had the habit of staying at their home late into the night until they ate supper. 47. Upon consideration of all this evidence, I am in agreement with the trial court that the complainant was a credible and truthful witness. There is no way that she would have fabricated all this evidence. The Appellant in his defence placed himself at the scene of the incident. The evidence of the complainant was sufficient to sustain the conviction on the Appellant even without evidence of her grandmother. 48. The P3 form in this case was produced in court by Dr. Ibrahim PW3 with the consent of the Appellant on behalf of Dr. Rimba who had completed it. The examination on the complainant showed that the hymen was broken; that the labia majoras were tender to touch and the labia minoras were oedematous, tender and were inflamed and red in colour. The doctor who completed the P3 form formed the opinion that there was vaginal penetration by penis. The fact that there were injuries on the vagina of the complainant corroborated the complainant`s evidence that the Appellant defiled her on 5/3/2024. Even though, the evidence of the complaint was sufficient by itself to sustain the conviction without support by medical evidence. The prosecution had proved beyond reasonable doubt that Appellant defiled the complainant on diverse dates in the months of February and March 2022. 49. I am satisfied that the charge of defilement was proved against the Appellant beyond all reasonable doubt. The appeal herein lacks merit and is thereby dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 23RD DAY OF FEBRUARY, 2026 J. N. NJAGI JUDGE In the presence of: Miss Ochola for Respondent Appellant – present virtually at GK. Prison Malindi Court Assistant - Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3858/eng@2026-02-23 8

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