Jaldesa Dido v Republic

3. That the learned trial magistrate erred in law and fact by relying on inadequate shallow, fabricated, contradictory and speculative evidence. 4. That the learned trial magistrate by admitting medical reports as evidence even after being produced by another person other than the maker in total violation of section 33 and 77 of the evidence Act Cap 80 5. That, the learned trial magistrate erred in law and fact by not noticing that a crucial witness (Barako Ibrahim) who is said to have been an eye witness was not availed to shed more light. 6. That, learned trial magistrate erred in law and fact by disregarding the facts raised in the appellants defense of alibi. 5. The Appellant submitted that the voir dire conducted by the trial court was a mere formality; that it failed to establish whether PW1 understood the moral duty to speak the truth. The Appellant points out that the court only asked the child her name, school, age, and mother’s name before allowing her to give unsworn testimony. 6. The Appellant also argues there were material contradictions on the prosecution’s case. He points out for instance that the complainant (PW1) testified that, after the ordeal, she went home and told her mother, who responded by beating her up. However, the mother (PW2) testified that on that date, she was in Isiolo town, a distance of over 200 kilometers away, and that she was only informed through the phone by her sister, B. 7. Further, the Appellant faults the admission of the medical records.. He states that PW4 produced the P3 and PRC forms despite not having been the maker of the said documents. It is argued that no reason was laid for the absence of the original doctor and that this constituted a violation of Section 33 of the Evidence Act. 8. The Appellant maintains that he was at the mosque at the time of the alleged offence, and that this was supported by the testimony of DW2 and DW3. 9. The Respondents did not file submissions. Analysis and determination 10. This being a first appeal, this court has the duty to review the evidence; carry out its own evaluation; and arrive at its own conclusion, while making due allowance for the trial court’s advantage in seeing and hearing the witnesses first-hand. 11. I have identified the following issues for determination : a. Whether the voir dire examination was sufficient. b. Whether the medical evidence was properly admitted. c. Whether the prosecution proved the case beyond reasonable doubt. Whether the voir dire examination was suffcient 12. The Appellant contends that the trial court conducted a shallow and insufficient voir dire examination of the complainant; that the trial court failed to establish whether the child, then aged 6 years understood the moral duty of speaking the truth, or the reason for her presence in court. He points out that the record only reflects basic identification questions regarding her name, age, and school and the court used answers to the above questions to conclude that the child was competent to testify. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4098/eng@2026-03-19 2

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13. Section 19 of the Oaths and Statutory Declarations Act (Cap 15) Provides that: “ 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 process of ascertaining the intelligence of a child of tender years, like the complainant in this case, and her appreciation of the importance of telling the truth, as required by section 19 aforesaid , is the process of voir dire examination 15. The significance of voir dire examination was highlighted in the case of Ogola v Republic (2023) KECA 39 (KLR), where the Court of Appeal stated that it is the duty of the court to ascertain that a child understands the difference between truth and falsehood. The court noted that failure to conduct a proper voir dire can render the child's evidence of no use, and in cases where such evidence is the primary basis for conviction, such a failure is fatal to the prosecution's case. 16. I have considered the record of the trial court in this regard. The transcript shows that the trial court asked PW1: “What is your name? Do you attend school? How old are you? What is your mother’s name?”, then the court went on to certify that the complainant was competent to testify. The answers to the questions indeed show that the examination was superficial. The court did not prob further ascertain whether the child understood and appreciated the importance of speaking the truth. To this extent I am in agreement with the Appellant’s contention that the examination was insufficient. 17. However did it render the conviction unsafe? 18. In Ogola’s case ( supra), the court was also considering a rather perfunctory voir dire examination , almost similar to the present case. The examination had gone this way : “ “ Examination of a minor by court My names are MA am aged 7 years, I go to school, [Particulars Withheld] Academy, am in class II, I know and here to tell the court the truth. I go to church at [Particulars Withheld] S.D.A. Court: Minor examined and found competent to give evidence on affirmation” 19. In considering the cited voir dire examination the court held: “We think that this voir dire is not the epitome of the ideal thorough-going voir dire of minors but that, in itself, would have been insufficient to render the conviction unsafe”. 20. Thus , insufficiency of voir dire examination does not always render the conviction unsafe. Indeed even complete lack of voir dire does not necessarily render the conviction unsafe as long as there is or are other corroborative evidence. In the case of Peter Kiriga Kiune, Criminal Appeal No. 77 of 1982 (unreported) cited with approval in the case of Johnson Nyoike Muiruri v Republic [1983] KECA 1 (KLR) the court of Appeal stated: “ 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4098/eng@2026-03-19 3

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understands the nature of an oath in which event his sworn evidence may be received. 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 (section 19, Oaths and Statutory Declarations Act, Cap. 20. The Evidence Act, (s. 124, cap. 80).”. In the present case the evidence of the complainant was corroborated by the medical evidence on the element of penetration, while there was no contest on the other ingredients constituting the offence. Whether the medical evidence was properly admitted 21. The Appellant challenges the admission of the P3 and PRC forms as evidence in the trial. He contends that the trial court erred by allowing PW4 to produce these documents despite him not being the maker of the reports, which the Appellant submits, is a total violation of Sections 33 and 77 of the Evidence Act (Cap 80). 22. It is his submission that no formal application was made to explain the absence of the original medical officer, and no foundation was laid for PW4 to testify on their behalf, thus depriving the Appellant of his right to cross-examine the expert. 23. The production of medical reports in criminal proceedings is governed by Section 77 (1) of the Evidence Act, which provides: “In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence”. 24. In Kilwake v Republic (2019)KECA 5 (KLR) the Court of Appeal noted that a P3 form produced in evidence by a doctor’s colleague did not necessarily vitiate the conviction, where the medical findings were corroborated by other direct and cogent evidence. 25. In the instant case, it is my view that the testimony of PW4 a medical officer at Merti Hospital, having worked with Dr. Rashid and familiar with the handwriting of the said doctor, did not amount to a fatal irregularity as alleged by the Appellant. There was due compliance with section 33 of the evidence Act before the testimony was taken. Whether there were material contradictions and inconsistencies. 26. The Appellant, contends that the learned trial Magistrate erred in law and fact by failing to notice that the prosecution’s case was riddled with material contradictions and gaps that fell short of the required legal standard. He specifically points to the testimony of the complainant (PW1) and the mother (PW2). 27. PW1 testified that upon returning home, she informed her mother of the incident and that her mother beat her up. Yet, the mother (PW2) and the grandmother (PW7) both testified that they were in Isiolo town ,over 200 kilometers away at the material time. It is further pointed out that PW1 during crossexamination stated, “I was told to say what I have said”. 28. I have carefully considered the contradictions referred to. The first contradictions on whether the complainant’s mother was away or not do not go into the core of the case. That is to say, it does not shake the evidence on penetration , the identity of the perpetrator and the age of the child . On the issue of “ I was told what to say” , this ignores the fact that on re- examination the complainant denied https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4098/eng@2026-03-19 4

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that she was coached on what to say. I look at this contradiction, as a suggestion of her uncertainty, but not an act meant to deliberately lie. Further the evidence of penetration was corroborated, while the issue of identification is not contested. Failure to call vital witnesses 29. The Appellant has submitted that the one Barako, who allegedly witnessed the incident and raised the alarm, ought to have been called as a witness, and failure to call him was fatal to the In Bukenya & Other vs. Uganda (1972) E.A 349, the court held: “ ...................” while the director is not required to call a superfluity of witnesses if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the Court is entitled under the general law of evidence, to draw an inference that the evidence of those witnesses, if called , would have been tended to be adverse to the Prosecution’s case.” 30. In the present case, the evidence of PW1 and corroborated by the medical evidence was sufficient to prove penetration . The admission by the Appellant in his defence that he knew the child and the child knew him sufficiently proved the element of identification ; and finally the age of the child was proved via vaccination card and the testimony of the child’s mother. Thus there was no deficit of prove in the prosecution’s case to warrant the calling of another witness. Whether the prosecution’s case was proved 31. The identity of the perpetrator was not under contest. The Age of the child is also not a contest in this Appeal. Am satisfied that the testimony of the child as well as that of the medical evidence was sufficient to prove penetration . All the elements of defilement were duly proved and am satisfied that the conviction of the Appellant was safe. 32. There was no appeal against the sentence . It suffices to state that it was in accordance with the law. 33. In the end , the Appeal is dismissed and the findings of the trial court upheld. DATED , SIGNED AND DELIVERED AT ISIOLO THIS 19TH DAY OF MARCH 2026. S. CHIRCHIR JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4098/eng@2026-03-19 5

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