Morris Musembi v Republic

3. The appellant prays the appeal be allowed, conviction be quashed, sentence be set aside and he be set at liberty. The respondent opposed the appeal and urged the court to dismiss it. The Respondent’s Case 4. PW-1-, T.M gave evidence on oath after the learned magistrate examined her and found that she was pocessed of sufficient intelligence and understanding of the nature of the oath. She told the court that on 23/4/2020 when she was eight years, she went to spend the night in her aunt’s house. While there she stepped out to go to the toilet and on the way back to the house she met with Morris who was by then naked. Morris did sex to her. Morris had done that to her before that day. She identified the appellant in court and said he is Morris and she knew him before. 5. On that day the appellant defiled her in the bathroom. When she went back to the house, she informs her aunt what the appellant did to her. Her aunt went and called the mother and father of the complainant. They went and took her to hospital and also reported at Nzambani police station and told police what happened. 6. PW-2 Sarah Muema is the complainant’s auntie. She confirmed that PW-1 was in her house on that material night when she took her phone and went outside. PW-1 took long before she returned to the house. PW-2 went outside and saw the lights of a torch in the toilet and bathroom which were outside the house. She went outside and called the complainant but she delayed in returning to the house. The complainant then hurriedly went to the house and put off the lights. PW-2 asked the complainant why she took too long. The complainant told her that Morris had done ‘tabia mbaya’ to her. She asked her how and she stated that he inserted “hiyo kitu yake huku kwangu chini’’. PW-2 told her to get on the bed and to remove her pant which she did. PW-2 sent for her mother and father and they came. The complainant told them what happened. PW-1 said it was Morris who was an employee of PW-2 who did that to her. They then proceeded to Nzangathi hospital. The doctor confirmed that she had been defiled. The matter was then reported to the police. They went and arrested the appellant and he said it was not the first time. A P3 form was filled for the complainant and age assessment showed that she was eight years old. 7. PW-3 Robinson Katana Musyoka a Doctor and Head of Clinical Services at Kitui County and holds a Bachelor’s Degree in Clinical Medicine and Masters in Forensic Medicine and Diploma in Clinical Medicine. He produced the P3 form which was prepared by retired Thomas Kituku on 24/4/2020. He had worked with Doctor Kituku and was familiar with his signature. He had worked with him for ten years. He testified that the complainant was examined on 24/4/2020 after she was sent there by the OCS Nzambani Police Station. 8. He told the court that the complainant was nine (9) years old and it was alleged she was alleged to have been defiled by a person who was well known to her. On examination, the hymen was broken. There were no lacerations and no obvious discharge from the vagina. The doctor found that the child was defiled by a person employed by a relative. He produced the P3 form and PRC forms as exhibits. The age assessment report showed that she was ten years old. 9. PW-4 No 102274 PC Damaris Kwamboka who is attached at Nzambani Police Post was the Investigating Officer. She told the court that the report was made at the police station that the complainant had been defiled. She was escorted to Kitui Hospital and a P3 form was filled the appellant was then charged. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4238/eng@2026-02-06 2

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Appellant’s Case 10. He was sworn and denied the charge. The learned Magistrate held that the prosecution had proved its case. Submissions 11. The appellant submits that ‘voire dire’ was not lawfully conducted as acquired. He relies on Johnson Muiruri vs Republic (1983) KLR where the court held that: “ The court is required to form an opinion whether the child understands the nature of the oath, is pocessed of sufficient intelligence and understands the duty of speaking the truth…” 12. The appellant submits that the learned Magistrate never tested the demeanor of the complainant and did not assess the credibility of the witness before giving evidence in court and therefore the evidence was taken unlawfully. The appellant submits that penetration was not proved. He further submits that the perpetrator was not identified. He relies on Section 124 of the Evidence Act. (Cap 80 of the laws of Kenya and Haydon Evidence, Butterworths London 1984). He further submits that the P3 form which was produced did not belong to the complainant. He submits that he was brought to court based on suspicion. 13. The appellant submits that penetration was proved. He submits that the learned magistrate stated that the hymen was broken and there were no lacerations and no obvious discharge from her genitalia. That the doctor did not state whether there was penetration. That the learned Magistrate decided to rely on the evidence of the complainant which was not corroborated by the medical evidence. Respondent’s Submissions 14. It submitted that the contention that ‘voire dire’ was not conducted is unfounded and misconceived as the magistrate was alive to the requirements of Section 19 of the Oaths and Statutory Declarations Act and Section 124 of the Evidence Act. That the victim was of sufficient age and intelligence and the court properly assessed her capacity to testify. That the substance of the inquiry and not the form is what matters. He relies on Haji -vs- Republic 2023 KEHC 26498(KCR) Where it was held that voire dire need not be recorded verbatim so long as the trial court demonstrates that it formed the opinion that the child’s competence in understanding of telling the truth. That the learned Magistrate recorded that the child understood the duty to speak the truth and was competent to testify. 15. The respondent submits that the evidence of the complainant was corroborated by medical evidence indicating that there was penetration. That the court was entitled to rely on her testimony under Section 124 of the Evidence Act (Cap 80 Laws of Kenya). On identification of the appellant the respondent submits that he relies on Anjoni & Others -vs- Republic (1989) KLR where it was held that “ recognition is more satisfactory, more assuring and more reliable than identification of a stranger because it depends on personal knowledge.” 16. That the appellant was placed at the scene by the complainant who knew him personally as he had worked at her aunt’s home. That penetration was proved by the complainants’ testimony supported by medical findings. That the learned Magistrate applied the law correctly. He urged the court to dismiss the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4238/eng@2026-02-06 3

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Analysis and Determination 17. I have considered the judgement and the proceeding before the learned Magistrate and the submissions. The issues which arise for determination are: 1. Whether the learned Magistrate conducted ‘voire dire’ examination. 2. Whether penetration was proved. 3. Whether the appellant was identified as the perpetrator. 18. This is a first appeal and the court has a duty to analyze the evidence, evaluate it and come up with its own independent finding. This was stated in the case of Okeno -vs- Republic (1972) E. A 32. The court is supposed to analyze the evidence, evaluate it and come up with its own independent finding. The court is however, supposed to leave room for the fact it had no opportunity to see and hear the witnesses in order to access their demeanor and leave room for that. The High Court as the first appellate court has jurisdiction to consider matters of law and facts. This is provided under Section 347(2) of the Criminal Procedure Code which provides that the High Court as the first appellate may hear appeals on matters of facts and matters of law. 19. The first issue which the appellant raise in the voire dire was not properly conducted. Section 19 of the Oaths and Statutory Declarations (Cap 15 Laws of Kenya) sets out the procedure for taking the evidence from a child of tender years. The section providers: 20. “ (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 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. (2) If any child whose evidence is received under subsection (1) willfully 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 offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment.” The Act provides that the evidence of a child of tender years may be taken though not given upon oath if in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty speaking the truth. In Maripett Loonkomok -vs- R (2016) KECA 520 KCR The Court of Appeal stated that: “ We turn to consider the effect of failure by the trial court to administer voire dire on the complainant. It is firmly settled that not in all cases where voire dire is not administered or is not administered properly, the entire trial would be vitiated. This court sitting at Nyeri has recently reiterated what has been said many times before that question will depend on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4238/eng@2026-02-06 4

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the peculiar circumstances of the case and particular facts of each case. See James Mwangi Muriithi –vs- Republic Criminal Appeal No.10/2014. 21. Section 19 of the Oaths and Statutory Declarations Act (Supra) is concerned with reception and admissibility of evidence of a child of tender years. By declaring that where the child does not in the opinion of the court understand the nature of the Oath his evidence may nonetheless be received though not given on oath. But that evidence shall only be received though not given on oath. But the evidence shall only be received if, again in the opinion of the court the child is possessed of sufficient intelligence to justify reception of the evidence and also if, the child understands the duty of speaking the truth. So long as the evidence, though not oath, is taken down in writing, it amounts to a disposition under Section 233 of the Criminal Procedure Code. The code does not prescribe the precise manner of ascertain and determining whether the child witnessunderstands the nature of the oath or is possessed of sufficient intelligence or even his or her ability to understand the duty of speaking the truth. 22. ‘Voire dire’ a Latin phrase (Verum dicere) for saying “what is true”, what is objectively accurate or honest, has been used in commonwealth jurisdictions and in some instances in the United States of America, as “a trial within trial” a hearing to determine the admissibility of evidence or the competency of a witness or Juror. See Duhame, Licoyd. “Voire dire definition’ Duhames Legal Dictionary” 23. The Court of Appeal held that courts have followed a format of asking and recording the question and the answer or recording the answer only, “what is constant is that whatever format the court adopts, it must be on record”. That by dint Sections 208 and 302 of the Criminal Procedure Code the law allows cross-examination of a witness who does not give evidence on oath. See Nicholas Mutua Wambua & Another -vs- Republic Mombasa criminal Appeal No 373/2006. 24. The Court of Appeal went on to consider the question as to who is a child of tender years and stated as the Oaths and Statutory Declarations Act and the Sexual Offences Act are silent on the question. The Court of Appeal held that: “ the time honoured fourteen (14) years remains the correct threshed for voire dire examination”. 25. In Kibageny Arap Korir -vs- Republic 1959 E.A the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of fourteen (14) years. That 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 perse vitiate the entire prosecution case. The court went to state: “ But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding the nature of the oath cannot be used to convict an accused person. But it is equally true that as this court recently found that; In appropriate case where ‘voire dire’ is not conducted out there is sufficient independent evidence to support the charge…the court may still be able to uphold the conviction”. 26. See Athumani Ali Mwinyi –vs- Republic, Criminal Appeal No.11 of 2015. In this case, the record shows that the learned Magistrate conducted ‘voire dire’ examination, see page 19 of the record and stated as follows: “ I have interviewed PW1 and find that she possesses sufficient intelligent (sic) and understanding the nature of Oath and will give sworn evidence.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4238/eng@2026-02-06 5

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The contention by the appellant that voire dire was not conducted is unfounded and misconceived. The learned Magistrate was alive to the requirements of the Oaths and Statutory Declarations Act. 27. Furthermore, well where in a trial voire dire is not conducted, it does not vitiate the entire prosecution’s case provided that the evidence is corroborated by sufficient independent evidence. It matters not how voire dire was conducted, the most important consideration is whether it was conducted and recorded and the court demonstrates that it formed an opinion on the child’s competence to give evidence. How it was conducted, what questions were asked is relevant as long as it assisted the trial Judge to form an opinion as to whether the child is competent to give evidence and understands the need to tell the truth. The most important thing is to do justice either way without requiring strict formalism. 28. The court has to rely on the record of the lower court and it is clear that ‘voire dire’ was properly concluded and the trial Magistrate who had that opportunity to see the child formed an opinion that the child was competent to give evidence on Oath. This court leaves room for that as it had no opportunity to see the child. I find that ‘voire dire’ was conducted and the ground must fail. 29. The second issue is whether the accused was positively identified as the perpetrator. The three key ingredients of the offence of defilement are: (1) Penetration. (2) Age of the victim. (3) Positive identification of the perpetrator. The prosecution has the burden to prove that the perpetrator was positively identified. It is not in dispute that the appellant was well known to the complainant .The appellant stated that the complainant was her employer’s daughter and had worked for her for three years. 30. The evidence is that of recognition and not identification of a stranger. In Anyebibu & Others -vsRepublic (1989)KCR .The Court of Appeal held that: “ Recognition is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in same form or another.” 31. The complainant was at the home of her aunt (PW2) who was the appellant’s employer. He could not have failed to recognize him. In any case, the appellant did not deny that he was at the scene, his defence was that he was framed. The complainant could not fail to recognize him. The complainant testified that on that material day she went to the toilet and encountered the appellant who then took her to the bathroom and defiled her. She returned to the house and disclosed to her aunt that the appellant had defiled her. The learned Magistrate found that the complainant’s testimony was believable. The learned magistrate had the chance to see the complainant and to assess her demenor. This court would not have any reason to doubt the complainant. 32. The testimony of the complainant was corroborated by the testimony of PW-2 who told the court that the complainant had gone out to the toilet and overstayed. She looked outside and saw light in the bathroom and in the toilet. The complainant delayed but finally went to the house. She enquired why the complainant had overstayed and she disclosed that the appellant had defiled her. She checked the complainant and saw what her private parts. She called her parents they took her to hospital. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4238/eng@2026-02-06 6

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33. I find that the appellant was recognized by the victim. The complainant testified that the appellant had done that to her before. I find that the appellant was properly recognized as the perpetrator without any possibility of mistake. The evidence of PW-1 on the identity of the person who defiled her is credible. 34. The appellant contended that penetration was not proved Penetration is defiled under Section 2 of the Sexual Offences Act as, “ complete or partial insertion of a person’s genital organ into the genital organ of another person.” 35. From this definition, penetration need not be complete to prove penetration, partial insertion of the genital organ amounts to penetration. Penetration is proved by the testimony of the complainant where she is able to express herself and corroborated by medical evidence and other material evidence that is relevant. In this case, the prosecution relied on medical evidence and called the Clinical Officer who produced the P3 form and the PRC form. The doctor who examined the complainant had observed that the hymen was broken. The doctor remarked that the complainant was defiled by a person employed by a relative. 36. The doctor testified that the complainant was born on 28/1/2012. He also assessed the age and confirmed that the complainant was ten years old. I find that the age of the complainant was proven with credible evidence. The appellant was charged with defilement was under Section 8 (1) & (2) of the Sexual Offences Act which provides that: 37. 1. “A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” The doctor did not indicate whether the broken hymen was fresh or old. However, penetration need not be complete. The complainant stated that it was not the first time for appellant to defile her. Penetration was proved to the required standard. I find that the charge of defilement against the appellant was proved to the required standards. Conclusion The appeal lacks merits and is dismissed. DATED, SIGNED AND DELIVERED AT KITUI THIS 6TH DAY OF FEBRUARY 2026 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4238/eng@2026-02-06 7

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