Choga Mwasambu Choga v Republic

3. The prosecution called 5 witnesses in the case while the Appellant was the only witness in his case. 4. The case for the prosecution was that the victim herein who was PW4 in the case was at the material time aged 4 years and was living with her grandmother PW2. The Appellant was their co-villager. 5. It was the evidence of the victim`s grandmother PW2 that on the 24/6/2024 the victim was unwell and did not go to school. She then went missing from home for some time. PW2 started to look for her. She later saw her with the Appellant. The victim did not report anything on that day. 6. That on 29/6/2024 the victim was in the company of her aunt PW3 when the Appellant passed by. On seeing him the victim told her aunt that on a previous day the Appellant had taken her to a room, removed her clothes, sacked her breasts and touched her vagina with his fingers. PW3 passed the information to the victim’s grandmother PW2. They reported to the police and took the victim to King Fahad Hospital. She was examined by Dr. Khalifa PW1 who found her with an intact hymen and intact labia majora and minora. There were slight bruises in the vagina at the 6 o’clock position. The doctor completed her P3 form and her Post Rape Care form. 7. The case was investigated by PC Mercy Katana PW4 who record statements of witnesses. On the 29/6/2024 the victim took her to the house of the Appellant and showed her where the incident had taken place. The victim identified the Appellant. He was arrested and charged with the offence. During the hearing of the case in court the doctor PW1 produced the victim’s treatment notes, P3 form and Post Rape Care Form as exhibits, P.Exh. 1, 2 and 3 respectively. The investigating officer PW4 produced the victim`s birth certificate as exhibit, P.Exh.4. The same indicated that the victim was born on 24/9/2019, meaning she was aged 4 years and 9 months at the time the offence was said to have been committed. 8. In his defence the Appellant stated in a sworn statement that he was on the material day called by a friend called Karisa who asked him to go and do some work for him. He left his house at 7 am and went to the place of Karisa. He worked with Karisa upto 6.30 pm when he returned to his work. 9. The appeal was canvassed by way of written submissions of the Appellant and those of the prosecution counsel which the court has considered. 10. 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.” 11. The appellant was facing a charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The victim was a child of tender age of 4 years. That being the case, the trial https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5987/eng@2026-04-29 2

page 2 of 5

court was required to conduct a voir dire examination on her before admitting her evidence in court. This is as required by section 19 of the Oaths and Statutory Declarations Act which provides that: “ (1) 12. 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. I have noted from the record of the trial court that the court did not conduct a voir dire examination on the child before admitting her evidence. The court instead stated that: The witness is a 4 year-old minor who is yet to even enrol for school. It is therefore not possible for her to appreciate the meaning and nature of oath and therefore she shall give unsworn evidence given her tender age. 13. It was not for the trial court to decide on its own motion whether the child could appreciate the nature of oath or not. This had to be done in a voir dire examination which the court failed to do. 14. The purpose of a voir dire examination is to ascertain whether the child understands the nature of oath in which case the child can give sworn evidence. Where the court in a voir dire examination finds that the child does not understand the meaning of oath, the court is required to find out whether the child is possessed of sufficient intelligence to justify the reception of his/her evidence and understands the duty of speaking the truth. If the finding is to the positive, the child may be allowed to give unsworn evidence. This was well explained by the Court of Appeal in the case of Johnson Muiruri vs. R (1983) KLR 445 as follows: “ We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are rendered as witnesses. In Peter Kirigo 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 voir dire examination, whether the child understands the nature of an oath in which event 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 Declaration Act, Cap 15). The Evidence Act (Section 124, Cap 80) …….” 15. The trial court in this case allowed the minor to give unsworn evidence before ascertaining whether she was possessed of sufficient intelligence to justify the reception of her evidence and understood the duty of speaking the truth. Compliance with section 19 of the Oaths and Statutory Declarations Act is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5987/eng@2026-04-29 3

page 3 of 5

mandatory. The procedure taken by the learned magistrate to admit the evidence of the child without conducting a voir dire examination was irregular. 16. It is settled law that failure to observe the provisions as to voir dire does not automatically vitiate the conviction but such evidence cannot be the basis of a conviction unless there is independent evidence to support the charge. The Court of Appeal in Maripett Loonkomok vs. Republic [2016] eKLR dealt with the effect of failing to conduct a voir dire examination on a child of tender years and stated as follows: It follows from a long line of decisions that voir 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 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 voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.” See Athumani Ali Mwinyi v R Cr. Appeal No.11 of 2015. 17. Again, the Court of Appeal in John Okeno Oloo -vs- R, Criminal Appeal No. 350 of 2003 (unreported and as cited in Sammy Ngetich v Republic [2018] eKLR) stated as follows: “ In our view, whereas we agree that as concerns C, who was said was 13 years old, the trial court should have, note of caution, formed an opinion on a voir dire examination whether she understood the nature of an oath before she could be sworn. We do not agree with the superior court that failure to do so could not have occasioned miscarriage of justice had that been their only witness on the issue that was before the Court.” 18. In Samuel Warui Karimi v Republic [2016] eKLR where a voir dire trial was not conducted on a 12 year-old, the Court of Appeal said that the purpose of undertaking voire dire examination in a criminal trial is to protect the guaranteed right of a fair trial. The court accordingly held that evidence of the victim was not properly received and the conviction of the appellant was unsafe. 19. In view of the foregoing, the evidence of the victim in this case could not be used to convict the Appellant for failure by the trial court to conduct voir dire examination unless there was independent evidence to support the charge. The victim was the only witness that the Appellant sucked her breasts and touched her vagina. There was no independent evidence to support that. 20. In view of the failure by the trial court to conduct voir dire examination before admitting the evidence of the victim, I find that the right of the Appellant to fair trial was violated. The question is whether I should order a re-trial. 21. It is trite that a retrial can only be ordered where it will not occasion injustice or prejudice to the appellant. The same cannot be ordered so as to give the prosecution an opportunity to fill in the gaps noted during the trial. The court has also to consider whether a conviction may result if a re-trial is ordered. The East Africa Court of Appeal in Fatehali Manji v Republic (1966) EA 343 stated as follows on the issue: “ In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5987/eng@2026-04-29 4

page 4 of 5

not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person.” 22. In Mwangi v Republic (1983) KLR 522 the Court of Appeal also held thus: “ We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.” 23. I do not think that the Appellant will suffer any prejudice if he is retried of the offence. 24. The upshot is that the conviction entered by the trial court is quashed and the sentence thereof set aside. I order the Appellant be re-tried of the offence before a magistrate of competent jurisdiction other than Hon. F. M. Mulama. DELIVERED, DATED AND SIGNED AT GARSEN THIS 29TH DAY OF APRIL 2026. J. N. NJAGI JUDGE In the presence of: Miss Mkongo for Respondent Appellant - present virtually at G.K. Prison Malindi Court Assistant - Mwero https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5987/eng@2026-04-29 5

page 5 of 5