1. The appellant, Ali Omar Kama was charged with the offence of child abuse contrary to section 22 (1)(b) as read with section 22(2) of the Children Act, (Cap. 141) Laws of Kenya. The particulars of the charge were that the appellant on 16/11/2022 at around 0600 Hours at Milalani village in Msambweni location of Kwale County within Coast region physically subjected A.K. a child aged 5 years to child abuse by occasioning him physical bodily harm.
2. The appellant pleaded not guilty to the charge. The prosecution called six witnesses to support the charge. The accused person was put on his defence and he gave sworn evidence and had no witness to call. Upon evaluating the evidence, the learned trial magistrate in a judgment dated 8/12/2024 was satisfied that the charge was proved beyond a reasonable doubt. She found the accused person guilty, convicted him of the charge. On 8/1/2024, upon receiving a pre-sentence report the trial court sentenced the appellant to 18 months imprisonment.
3. Dissatisfied with the decision, the appellant has come before this court on appeal on the following grounds set out in the memorandum of appeal dated 31/1/2024:
a. that the appellant was not afforded a fair trial under Article 50(g) of the Constitution as the hearing proceeded without him being represented by an advocate and the trial court did not explain to him the importance and need to have one.
b. that the trial court erred in law and in fact in relying upon hearsay and vendetta evidence that was not independent and without considering material evidence such as weapon (charger) used and the appellant’s position that he did not commit the assault and that the minor was not at his place.
c. that the trial court erred in law and in fact by passing a punitive sentence upon the appellant without taking into account the pre-sentence report dated 8/1/2024 which showed that the appellant was a responsible man, law abiding citizen and a proper candidate for a non-custodial sentence.
d. that while passing the sentence, the trial court erred in law and in fact by making irrelevant and subjective assumptions such as the appellant’s lack of custody of the child (without a court order) and the appellant’s demeanor that he was using drugs or alcohol without evidence and concluded that the appellant was not remorseful.
e. that the trial court erred in law and in fact by using mitigation of the appellant who was not represented as an admission yet he had pleaded not guilty and used the yardstick in sentencing.
f. that the trial magistrate failed to believe the appellant’s story and see that this was a manifest case of vendetta against the appellant, having earlier sued PW 3 earlier, the mastermind of the story and the controller of the witnesses who were not independent and the manifest claim for compensation KShs 250,000/= by PW 3.
4. The appellant therefore prays that this appeal be allowed and the decision of the trial court on conviction and sentence be set aside or in the alternative the appellant be given a non-custodial sentence.
5. The appeal was heard by way of written submissions. The appellant’s advocate filed submissions dated 9/9/2024 but the respondent’s advocate did not. I have checked both the Case Tracking System (CTS) for the court and the physical file and there are no submissions filed by the respondent.
6. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). 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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
7. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
8. The several grounds enumerated by the appellant can be reduced to three issues for this court’s determination. These are:
a. whether or not the appellant’s right to a fair trial was breached generally and particularly by the trial court failure to inform him of his right to choose and be represented by an advocate as provided for under article 50(g) of the Constitution?
b. whether the evidence adduced by the prosecution was sufficient to prove the charge beyond a reasonable doubt?
c. whether the sentence imposed was proper?
9. The prosecution’s case against the appellant was that on 16/11/2022 PW 1, HY, a child aged about 5 years old was in school, M ECD Centre. The headteacher of the ECD Centre PW 5, Mwanaisha Abdalla, was in HY’s class together with another teacher PW 2, Sofia. Mwanaisha noticed that HY, one of her pupils was not sitting well. When PW 5 inquired from him what the problem was, he said that he was hurt on the back. PW 2 said that the child was crying. PW 5 asked him to turn around and they noticed blood stains on the child’s shirt. PW 5 lifted the shirt and saw bloodied marks like he had been whipped. The boy then said that his father had whipped him for peeing in bed.
10. PW 2 took the boy to the deputy head teacher of the main school, PW 3 R.M. who is also the maternal grandmother of the child. According to PW 2 and PW 5 they took this step for fear that the issue could turn against them as the ones who had caused the injury to the boy.
11. PW 3 looked at the boy’s shirt and saw blood stains. She asked him to remove the shirt and PW 3 saw 15 whip lash marks on the back with bleeding wounds. The boy said that his father beat him because he had peed on the bed. He also said that every morning his mum and dad beat him up for peeing. PW 3 said that her daughter stays in the Arab countries and that she was estranged.
12. PW 3 took the boy and his twin sister on a motorbike and went to Msambweni police station where she made a report. PW 6, Cpl Moses Wafula took up the matter and conducted investigations.
13. In his investigations, PW 6 said he viewed the child and saw the back had bruises, cuts and fresh blood was still oozing. He took photographs of the wounds which he produced in court as exhibits. A P3 form was issued for the child who was then taken to Msambweni hospital.
14. PW 4, Beatrice Gitau, is a clinical officer at the hospital. She examined the complainant on 16/11/2022 and noted that he had strange red marks and bruises on the back. On the left hand, the biceps, posteriorly it was tender on touch. His shirt had blood stains. PW 4 made an impression of assault – soft tissue injury with the degree of injury as harm. She put him on treatment. She assessed the degree of injury as harm.
15. In his defence, the appellant denied that he assaulted the child. He said that on the material day, the child and his sibling did not come back home from school. He heard that their grandmother, who was a deputy head-teacher in their school had taken them. They never went back home from that day until April holidays and went back after the holidays.
16. He said that the investigating officer summoned him to Msambweni police station. He had work on that day and so he went the following day. He was informed that he had a case of beating up a child. He denied the allegation. He was then taken to court.
17. In cross-examination, he conceded that the complainant was his child and that his mother was in Saudi Arabia. He said he could not even remember the month he was living with the boy.
18. I have considered the evidence tendered at the trial by the prosecution witnesses and the appellant’s defence. I have also considered the submissions made by learned counsel for the appellant in this appeal.
19. I am satisfied, as did the trial court, that the prosecution evidence established without any doubt that the complainant sustained injuries to his back consistent with being whipped with a lash earlier that day. The evidence tendered on this issue by PW 2, PW 3, PW 4, PW 5 and PW 6 all who saw him on the very day that he sustained the injuries is consistent that indeed he sustained those injuries.
20. The important question to be answered is whether there is evidence to prove beyond a reasonable doubt that the appellant was the perpetrator of the heinous act upon the complainant.
21. It is apparent that in the present case, the main and only witness to the incident of assault was the complainant. There is no indication why the investigating officer did not find it appropriate to get other witnesses to support the complainant’s evidence. Yet, there was at least, his twin sister with whom he was said to have been staying at the time.
22. Now, the manner in which the trial court proceeded to take the evidence of the complainant is quite wanting. The complainant was aged 5 years. When he took up the witness stand as PW 1, the trial court record shows that the proceedings were as follows:
“DPP: Ready to proceed.
Accused: Niko tayari
At 10:06 am.
I am Hussein.
I am in class 2.
I don’t know why I am here.
Ruling: He does not have sufficient intelligence to give sworn testimony.”
23. Those seem to have been the only questions put to the complainant in voire dire examination. The proceedings then went on:
“EVIDENCE IN CHIEF
Minor of 5 years states: I am HY I go to school Mwembe primary school, grade 2. I don’t know teachers name. I live in Kisite. My mum is called Auntie. I also live with Rehema a baby with Baba called uncle Kassim. That man is baba. Accused. I don’t live with him. He lives in Milalani. I live with him. Yes, he took 2 wire and hit me on the back because I urinated on my bed. I told teacher and bibi. Bibi took me to hospital. My back was injured. That’s all.”
24. That was the brief testimony of the complainant. According to me, the child gave fairly straightforward evidence that could be relied upon if properly taken. In other words. he was possessed of sufficient intelligence to accept his testimony but not to testify under oath.
25. However, there was no cross-examination after the child made the unsworn statement to the court. Even having made an unsworn statement, the appellant had a right to test that evidence through cross-examination. The failure to afford him that opportunity meant that his right to a fair trial as guaranteed under article 50(2)(k) to adduce and challenge evidence was breached.
26. The Court of Appeal while considering when and how a voire dire examination of a child of tender years should be conducted said in the case of Karimi v Republic [2016] KECA 812 (KLR) that:
“Subjecting a witness of tender age to voire dire examination was founded under section 125 (1) of the Evidence Act and section 19 (1) of the Oaths and Statutory Declarations Act which had something to do with receiving evidence of a child.
… The above provisions of the law voire dire was an examination that served two purposes; one, it was a test of the competency of the witness to give evidence and two, a means of testing whether the witness understood the solemnity of taking an oath. Thus under the Evidence Act, the test was one of competency as the court was supposed to consider whether the child witness was developmentally competent to comprehend the questions put to him or her and to offer reliable testimony in criminal proceedings. It, therefore, followed if the child was not competent to comprehend the evidence, they could not give sworn evidence.
…
The requirement by the provisions of the Evidence Act and the Oaths and Statutory Declarations Act of voire dire examination of a witness of tender years in a criminal trial was meant to guarantee an accused person a fair trial. A fair trial was guaranteed by the Constitution.
…
Courts had held on the age at 14 years and sometimes even a higher age as the age below which a child was of tender years for purposes of criminal trials and insisted the competency be tested through questions that were to be put to the child and answers given by the child be recorded verbatim.
The approach resonated with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicated the right to a fair trial and could always be followed …
The purpose of undertaking voire dire examination in a criminal trial was to protect the guaranteed right of a fair trial. Where the witness as in the instant case was aged 12 years and that essential step was not taken in a criminal trial, that trial became problematic. The evidence by the complainant was not properly received thus, the conviction of the appellant became unsafe to sustain, as she was the complainant and not any other witness.
The appellant was a first offender; the minimum sentence provided for the offence was 10 years although he was sentenced to 15 years. The appellant had served about 5 years out of the said sentence and a retrial could be prejudicial to him and could not serve the interest of justice.
27. In the present case, the trial court has not shown that it took the questions and answers in the voire dire proceedings verbatim. Only answers were recorded. This vitiated the propriety of the voire dire examination. Consequently, as was found in the above cited case, the credibility of the evidence by the complainant, a child of 5 years whose competency to give evidence was not tested by the trial magistrate through cross-examination was left in doubt.
28. On the issue of the appellant not being afforded a fair trial, learned counsel has cited articles 50(2)(h) and (g) which respectively provide as follows:
50(2) Every accused person has the right to a fair trial, which includes the right—
…
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
29. Learned counsel has also cited the case of Joseph Ndungu Kagiri v Republic [2016] KEHC 4153 (KLR) where the cited paragraphs of the constitution were considered by the High Court, to support her submissions. However, having considered the said paragraphs, the learned Judge (Mativo, J) as he then was, held that
“Substantial injustice may be said to be subject to three tests, first, the complexity of the case. This is discernible from the issues of fact and law which may not be comprehended by the accused. The second test relates to the seriousness or nature of the offence in question. A serious offence may attract public interest to the extent that the public may require that some form of representation to be accorded to the accused owing to the nature of the offence. The third and final test relates to the ability of the accused person to conduct his own defence. Language difficulties experienced during the trial may be a perfect indicator of a accused persons' inability to conduct a defence….
… Considering the above authorities and the facts of this case and the judicial interpretation of substantial injustice, I am not persuaded that the appellant herein has satisfied any of the tests stated above to demonstrate that substantial injustice was occasioned to him due to fact that he and his co-accused were unrepresented.
However, in my opinion, in order to fully comply with the provisions of article 50 (2) (h) of the constitution, trial courts, as a matter of constitutional duty and in the interests of justice, ought to make a preliminary inquiry at the earliest opportunity possible and make a determination on the question whether or not an accused person would require legal representation at the state expense before embarking on the hearing. The trial court is under a constitutional duty to satisfy itself that substantial injustice will not be occasioned if the accused is not represented and to make a finding in that regard. Where the trial court finds that substantial injustice would be occasioned if a state funded counsel is not provided, it should also make a finding to that effect and make the appropriate orders.”
30. However, for other reasons stated in the judgment the High Court found that the appellant and his co-accused were not afforded a fair trial and that the entire proceedings were a sham and a gross violation of constitutional provisions safe guarding a fair trial and the proceedings also violated the provisions of the Criminal Procedure Code. The High Court found that the trial was conducted in a manner that was prejudicial to the accused persons and caused injustice and grave prejudice to the appellant and his co-accused and therefore such proceedings could not be allowed to stand.
31. I also find that, even if there was proper voire dire proceedings the failure to call the child’s sister to corroborate his evidence equally vitiated the trial. In the case of John Otieno Oloo v Republic [2009] KECA 435 (KLR) cited by learned counsel for the appellant the Court of Appeal considering this issue said thus:
“…we are of the view that in law evidence of a child of tender years given on oath after voire dire examination requires no corroboration in law but the Court must warn itself that it should in practice not base a conviction on it without looking and finding corroboration of it. Evidence of a child of tender years not given on oath must in law be corroborated.”
32. The evidence of the complainant in this case required corroboration. There is no indication by the learned trial magistrate that there was any corroboration of the complainant’s evidence or that she warned herself of the dangers of relying on such uncorroborated evidence. The evidence of the complainant cannot be found reliable where there was failure to comply with the law on corroboration. Similarly, the failure to conduct a proper voire dire examination and to subject his evidence to cross-examination vitiated the entire trial leading to the same not being a fair trial.
33. The final issue is on the sentence imposed by the trial court. The principles to be considered by this court in determining whether or not to interfere with the sentence imposed by the trial court are that this court will not interfere with the sentence imposed unless it is established that the sentence was either too harsh or too lenient as to constitute a failure of justice. The court will also interfere with the sentence if the trial court either failed to apply the correct principles or applied the wrong principles in arriving at the sentence (See the case of Simon Kipkurui Kimori -vs- Republic [2019 eKLR]).
34. In the present appeal, the offence carries a maximum of 5 years imprisonment. The manner of inflicting the abuse upon the complainant was gross and if the conviction had stood, I would not have found that the sentence of 18 months imprisonment in the circumstances was excessive.
35. I have considered whether or not this court should order a retrial. In Ahmed Sumar vs. R (1964) EALR 483 the Court of Appeal offered the following guidance: -
“...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 not to blame, it does not necessarily follow that a retrial should be ordered;...”
36. The Court went further to state that each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person.
37. It is apparent that the mistake in the trial arose from the court not adhering to the proper procedure for taking the evidence of a child of tender years, lack of corroboration and failure to subject the child’s unsworn testimony to cross-examination. These render the conviction of the appellant unsafe.
38. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of subjecting a child to abuse contrary to section 22(1)(b) as read with section 22(2) of the Children Act (Cap. 141) Laws of Kenya. The appellant is set at liberty forthwith unless otherwise lawfully held.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court at Kwale this 16th day of December 2024 in the presence of:
The appellant in person.
Ms Vidzo for the appellant.
Ms Lewa for the respondent.
Johnson court assistant.
2. The appellant pleaded not guilty to the charge. The prosecution called six witnesses to support the charge. The accused person was put on his defence and he gave sworn evidence and had no witness to call. Upon evaluating the evidence, the learned trial magistrate in a judgment dated 8/12/2024 was satisfied that the charge was proved beyond a reasonable doubt. She found the accused person guilty, convicted him of the charge. On 8/1/2024, upon receiving a pre-sentence report the trial court sentenced the appellant to 18 months imprisonment.
3. Dissatisfied with the decision, the appellant has come before this court on appeal on the following grounds set out in the memorandum of appeal dated 31/1/2024:
a. that the appellant was not afforded a fair trial under Article 50(g) of the Constitution as the hearing proceeded without him being represented by an advocate and the trial court did not explain to him the importance and need to have one.
b. that the trial court erred in law and in fact in relying upon hearsay and vendetta evidence that was not independent and without considering material evidence such as weapon (charger) used and the appellant’s position that he did not commit the assault and that the minor was not at his place.
c. that the trial court erred in law and in fact by passing a punitive sentence upon the appellant without taking into account the pre-sentence report dated 8/1/2024 which showed that the appellant was a responsible man, law abiding citizen and a proper candidate for a non-custodial sentence.
d. that while passing the sentence, the trial court erred in law and in fact by making irrelevant and subjective assumptions such as the appellant’s lack of custody of the child (without a court order) and the appellant’s demeanor that he was using drugs or alcohol without evidence and concluded that the appellant was not remorseful.
e. that the trial court erred in law and in fact by using mitigation of the appellant who was not represented as an admission yet he had pleaded not guilty and used the yardstick in sentencing.
f. that the trial magistrate failed to believe the appellant’s story and see that this was a manifest case of vendetta against the appellant, having earlier sued PW 3 earlier, the mastermind of the story and the controller of the witnesses who were not independent and the manifest claim for compensation KShs 250,000/= by PW 3.
4. The appellant therefore prays that this appeal be allowed and the decision of the trial court on conviction and sentence be set aside or in the alternative the appellant be given a non-custodial sentence.
5. The appeal was heard by way of written submissions. The appellant’s advocate filed submissions dated 9/9/2024 but the respondent’s advocate did not. I have checked both the Case Tracking System (CTS) for the court and the physical file and there are no submissions filed by the respondent.
6. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). 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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
7. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
8. The several grounds enumerated by the appellant can be reduced to three issues for this court’s determination. These are:
a. whether or not the appellant’s right to a fair trial was breached generally and particularly by the trial court failure to inform him of his right to choose and be represented by an advocate as provided for under article 50(g) of the Constitution?
b. whether the evidence adduced by the prosecution was sufficient to prove the charge beyond a reasonable doubt?
c. whether the sentence imposed was proper?
9. The prosecution’s case against the appellant was that on 16/11/2022 PW 1, HY, a child aged about 5 years old was in school, M ECD Centre. The headteacher of the ECD Centre PW 5, Mwanaisha Abdalla, was in HY’s class together with another teacher PW 2, Sofia. Mwanaisha noticed that HY, one of her pupils was not sitting well. When PW 5 inquired from him what the problem was, he said that he was hurt on the back. PW 2 said that the child was crying. PW 5 asked him to turn around and they noticed blood stains on the child’s shirt. PW 5 lifted the shirt and saw bloodied marks like he had been whipped. The boy then said that his father had whipped him for peeing in bed.
10. PW 2 took the boy to the deputy head teacher of the main school, PW 3 R.M. who is also the maternal grandmother of the child. According to PW 2 and PW 5 they took this step for fear that the issue could turn against them as the ones who had caused the injury to the boy.
11. PW 3 looked at the boy’s shirt and saw blood stains. She asked him to remove the shirt and PW 3 saw 15 whip lash marks on the back with bleeding wounds. The boy said that his father beat him because he had peed on the bed. He also said that every morning his mum and dad beat him up for peeing. PW 3 said that her daughter stays in the Arab countries and that she was estranged.
12. PW 3 took the boy and his twin sister on a motorbike and went to Msambweni police station where she made a report. PW 6, Cpl Moses Wafula took up the matter and conducted investigations.
13. In his investigations, PW 6 said he viewed the child and saw the back had bruises, cuts and fresh blood was still oozing. He took photographs of the wounds which he produced in court as exhibits. A P3 form was issued for the child who was then taken to Msambweni hospital.
14. PW 4, Beatrice Gitau, is a clinical officer at the hospital. She examined the complainant on 16/11/2022 and noted that he had strange red marks and bruises on the back. On the left hand, the biceps, posteriorly it was tender on touch. His shirt had blood stains. PW 4 made an impression of assault – soft tissue injury with the degree of injury as harm. She put him on treatment. She assessed the degree of injury as harm.
15. In his defence, the appellant denied that he assaulted the child. He said that on the material day, the child and his sibling did not come back home from school. He heard that their grandmother, who was a deputy head-teacher in their school had taken them. They never went back home from that day until April holidays and went back after the holidays.
16. He said that the investigating officer summoned him to Msambweni police station. He had work on that day and so he went the following day. He was informed that he had a case of beating up a child. He denied the allegation. He was then taken to court.
17. In cross-examination, he conceded that the complainant was his child and that his mother was in Saudi Arabia. He said he could not even remember the month he was living with the boy.
18. I have considered the evidence tendered at the trial by the prosecution witnesses and the appellant’s defence. I have also considered the submissions made by learned counsel for the appellant in this appeal.
19. I am satisfied, as did the trial court, that the prosecution evidence established without any doubt that the complainant sustained injuries to his back consistent with being whipped with a lash earlier that day. The evidence tendered on this issue by PW 2, PW 3, PW 4, PW 5 and PW 6 all who saw him on the very day that he sustained the injuries is consistent that indeed he sustained those injuries.
20. The important question to be answered is whether there is evidence to prove beyond a reasonable doubt that the appellant was the perpetrator of the heinous act upon the complainant.
21. It is apparent that in the present case, the main and only witness to the incident of assault was the complainant. There is no indication why the investigating officer did not find it appropriate to get other witnesses to support the complainant’s evidence. Yet, there was at least, his twin sister with whom he was said to have been staying at the time.
22. Now, the manner in which the trial court proceeded to take the evidence of the complainant is quite wanting. The complainant was aged 5 years. When he took up the witness stand as PW 1, the trial court record shows that the proceedings were as follows:
“DPP: Ready to proceed.
Accused: Niko tayari
At 10:06 am.
I am Hussein.
I am in class 2.
I don’t know why I am here.
Ruling: He does not have sufficient intelligence to give sworn testimony.”
23. Those seem to have been the only questions put to the complainant in voire dire examination. The proceedings then went on:
“EVIDENCE IN CHIEF
Minor of 5 years states: I am HY I go to school Mwembe primary school, grade 2. I don’t know teachers name. I live in Kisite. My mum is called Auntie. I also live with Rehema a baby with Baba called uncle Kassim. That man is baba. Accused. I don’t live with him. He lives in Milalani. I live with him. Yes, he took 2 wire and hit me on the back because I urinated on my bed. I told teacher and bibi. Bibi took me to hospital. My back was injured. That’s all.”
24. That was the brief testimony of the complainant. According to me, the child gave fairly straightforward evidence that could be relied upon if properly taken. In other words. he was possessed of sufficient intelligence to accept his testimony but not to testify under oath.
25. However, there was no cross-examination after the child made the unsworn statement to the court. Even having made an unsworn statement, the appellant had a right to test that evidence through cross-examination. The failure to afford him that opportunity meant that his right to a fair trial as guaranteed under article 50(2)(k) to adduce and challenge evidence was breached.
26. The Court of Appeal while considering when and how a voire dire examination of a child of tender years should be conducted said in the case of Karimi v Republic [2016] KECA 812 (KLR) that:
“Subjecting a witness of tender age to voire dire examination was founded under section 125 (1) of the Evidence Act and section 19 (1) of the Oaths and Statutory Declarations Act which had something to do with receiving evidence of a child.
… The above provisions of the law voire dire was an examination that served two purposes; one, it was a test of the competency of the witness to give evidence and two, a means of testing whether the witness understood the solemnity of taking an oath. Thus under the Evidence Act, the test was one of competency as the court was supposed to consider whether the child witness was developmentally competent to comprehend the questions put to him or her and to offer reliable testimony in criminal proceedings. It, therefore, followed if the child was not competent to comprehend the evidence, they could not give sworn evidence.
…
The requirement by the provisions of the Evidence Act and the Oaths and Statutory Declarations Act of voire dire examination of a witness of tender years in a criminal trial was meant to guarantee an accused person a fair trial. A fair trial was guaranteed by the Constitution.
…
Courts had held on the age at 14 years and sometimes even a higher age as the age below which a child was of tender years for purposes of criminal trials and insisted the competency be tested through questions that were to be put to the child and answers given by the child be recorded verbatim.
The approach resonated with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicated the right to a fair trial and could always be followed …
The purpose of undertaking voire dire examination in a criminal trial was to protect the guaranteed right of a fair trial. Where the witness as in the instant case was aged 12 years and that essential step was not taken in a criminal trial, that trial became problematic. The evidence by the complainant was not properly received thus, the conviction of the appellant became unsafe to sustain, as she was the complainant and not any other witness.
The appellant was a first offender; the minimum sentence provided for the offence was 10 years although he was sentenced to 15 years. The appellant had served about 5 years out of the said sentence and a retrial could be prejudicial to him and could not serve the interest of justice.
27. In the present case, the trial court has not shown that it took the questions and answers in the voire dire proceedings verbatim. Only answers were recorded. This vitiated the propriety of the voire dire examination. Consequently, as was found in the above cited case, the credibility of the evidence by the complainant, a child of 5 years whose competency to give evidence was not tested by the trial magistrate through cross-examination was left in doubt.
28. On the issue of the appellant not being afforded a fair trial, learned counsel has cited articles 50(2)(h) and (g) which respectively provide as follows:
50(2) Every accused person has the right to a fair trial, which includes the right—
…
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
29. Learned counsel has also cited the case of Joseph Ndungu Kagiri v Republic [2016] KEHC 4153 (KLR) where the cited paragraphs of the constitution were considered by the High Court, to support her submissions. However, having considered the said paragraphs, the learned Judge (Mativo, J) as he then was, held that
“Substantial injustice may be said to be subject to three tests, first, the complexity of the case. This is discernible from the issues of fact and law which may not be comprehended by the accused. The second test relates to the seriousness or nature of the offence in question. A serious offence may attract public interest to the extent that the public may require that some form of representation to be accorded to the accused owing to the nature of the offence. The third and final test relates to the ability of the accused person to conduct his own defence. Language difficulties experienced during the trial may be a perfect indicator of a accused persons' inability to conduct a defence….
… Considering the above authorities and the facts of this case and the judicial interpretation of substantial injustice, I am not persuaded that the appellant herein has satisfied any of the tests stated above to demonstrate that substantial injustice was occasioned to him due to fact that he and his co-accused were unrepresented.
However, in my opinion, in order to fully comply with the provisions of article 50 (2) (h) of the constitution, trial courts, as a matter of constitutional duty and in the interests of justice, ought to make a preliminary inquiry at the earliest opportunity possible and make a determination on the question whether or not an accused person would require legal representation at the state expense before embarking on the hearing. The trial court is under a constitutional duty to satisfy itself that substantial injustice will not be occasioned if the accused is not represented and to make a finding in that regard. Where the trial court finds that substantial injustice would be occasioned if a state funded counsel is not provided, it should also make a finding to that effect and make the appropriate orders.”
30. However, for other reasons stated in the judgment the High Court found that the appellant and his co-accused were not afforded a fair trial and that the entire proceedings were a sham and a gross violation of constitutional provisions safe guarding a fair trial and the proceedings also violated the provisions of the Criminal Procedure Code. The High Court found that the trial was conducted in a manner that was prejudicial to the accused persons and caused injustice and grave prejudice to the appellant and his co-accused and therefore such proceedings could not be allowed to stand.
31. I also find that, even if there was proper voire dire proceedings the failure to call the child’s sister to corroborate his evidence equally vitiated the trial. In the case of John Otieno Oloo v Republic [2009] KECA 435 (KLR) cited by learned counsel for the appellant the Court of Appeal considering this issue said thus:
“…we are of the view that in law evidence of a child of tender years given on oath after voire dire examination requires no corroboration in law but the Court must warn itself that it should in practice not base a conviction on it without looking and finding corroboration of it. Evidence of a child of tender years not given on oath must in law be corroborated.”
32. The evidence of the complainant in this case required corroboration. There is no indication by the learned trial magistrate that there was any corroboration of the complainant’s evidence or that she warned herself of the dangers of relying on such uncorroborated evidence. The evidence of the complainant cannot be found reliable where there was failure to comply with the law on corroboration. Similarly, the failure to conduct a proper voire dire examination and to subject his evidence to cross-examination vitiated the entire trial leading to the same not being a fair trial.
33. The final issue is on the sentence imposed by the trial court. The principles to be considered by this court in determining whether or not to interfere with the sentence imposed by the trial court are that this court will not interfere with the sentence imposed unless it is established that the sentence was either too harsh or too lenient as to constitute a failure of justice. The court will also interfere with the sentence if the trial court either failed to apply the correct principles or applied the wrong principles in arriving at the sentence (See the case of Simon Kipkurui Kimori -vs- Republic [2019 eKLR]).
34. In the present appeal, the offence carries a maximum of 5 years imprisonment. The manner of inflicting the abuse upon the complainant was gross and if the conviction had stood, I would not have found that the sentence of 18 months imprisonment in the circumstances was excessive.
35. I have considered whether or not this court should order a retrial. In Ahmed Sumar vs. R (1964) EALR 483 the Court of Appeal offered the following guidance: -
“...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 not to blame, it does not necessarily follow that a retrial should be ordered;...”
36. The Court went further to state that each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person.
37. It is apparent that the mistake in the trial arose from the court not adhering to the proper procedure for taking the evidence of a child of tender years, lack of corroboration and failure to subject the child’s unsworn testimony to cross-examination. These render the conviction of the appellant unsafe.
38. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of subjecting a child to abuse contrary to section 22(1)(b) as read with section 22(2) of the Children Act (Cap. 141) Laws of Kenya. The appellant is set at liberty forthwith unless otherwise lawfully held.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered in open court at Kwale this 16th day of December 2024 in the presence of:
The appellant in person.
Ms Vidzo for the appellant.
Ms Lewa for the respondent.
Johnson court assistant.