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JudgmentALICE NYAWIRA NGATIA VS The Republic13 min read

ALICE NYAWIRA NGATIA VS The Republic

High Court at Nyeri High Court · · Magare Dennis Kizito Ngwono

  1. The Appellant was charged with 2 counts of Sexual assault contrary to Section 5 (1) a (ii) as read with Section 5 (2) of the Sexual Offences Act.  The Appellant was charged with indecent acts on minors.  The Appellant was sentenced to serve 10 years’ imprisonment. 
  2. The Appellant filed Appeal and challenged both conviction and sentence.
  3. The Respondents filed submissions as relied on the judgement of the Court as set out in Okeno – vs – Republic (1912) EALR 36.
  4. They set out in extenso the meaning of Sexual Assault.  The ingredients were said to be;
  5. Penetration of genital organs.
  6. By another person’s.
  7. By manipulation of an object.

Evidence

  1. The minors stated that the Appellant pierced the genital after removing diapers. PW4 testified that the Appellant was staying with the children and would live in the evening.  [I presume she meant leave].  She testified that she found the vagina opening was reddish. It was not clear whether it was playing with the res pen or other issues.  The children were taken to PGH PRS & P3 were filled.  She stated she had taken then to some clinic. PW4 stated that her children never tried to tough her genitalia [confirming to what they themselves said.  She denied they never quarreled over husband.
  2. PW5 was the arresting officer.  She stated that children were first to chemist Bright chemist. 
  3. On being put on the defence, the Appellant stated that she was a care giver on the children.  She worked for 11 days.  She took the children to her house gave them porridge and took them back.  Nothing happened.  On 17th February 2022 she worked as usual.  She was to take children for calcium supplements.  She was called and arrested.  The charges were false.  She stated that on 16th February 2022 she was watching them.  They were not assaulted.
  4. One thing that is shocking is that at no time did the PW4 confront the Appellant with the accusation since she had to continue working till she was arrested.  One other clear thing, is that she did not mention how she paid the Appellant. 

Submissions

  1. The Appellant also filed submissions together with an Amended Memorandum of Appeal.  She stated that the minors are suggestable.  She stated that Court erred in finding that the minors were competent to oral evidence on oath.  She raised issues of being given medicines before going to hospital.
  2. They stated that the evidence of the children was biased.  She raised the issue of burden of proof.  Reliance was placed on Sekituliko – vs – Uganda (1967 EA 53.  Kiarie – vs – Republic.
  3. She lamented that the Court placed the burden of proof on the appellant.  She raised a question on how the children knew the colour of the pen was red that they could comprehend simple things.  Not that the colour mattered but it was an issue of logic.  She wondered how the Court knew it was ball-pen that was inserted as stated in the Judgment where none was raised.
  4. She maintained that the evidence was in the compound.  She relied on the case of Paul Karanja – vs – Republic (2016) eKLR.  She stated that PW2 stated that the minor was pierced after removing the diaper.  She stated that the Court disregarded the fact that she had quarreled with PW4 over PW4’s husband.  The issue related to why PW4’s husband entrusted the Appellant with keys.  The issue was said to have been introduced at the cross-examination.
  5. Reliance was placed on Ayub Muchele – vs – Republic 1980 KLR 44.  Further she stated that the sentence of 10 years is harsh. The Appellant urged me to allow the Appeal.
  6. The Respondent filed submissions. They stated that the Court did not error by failing to conduct voire dire.
  7. They stated that the Appellant was accorded an opportunity to cross examine the witnesses.  They stated that the omission of PW4’s husband was not fatal. They placed reliance on section 143 of the Evidence Act.
  8. On sentence, they stated that a sentence of 10 years was not excessive.  Release order placed on Bernard Kimani Gideon – vs – Republic. They urged me to dismiss the Appeal.

Analysis

  1. I have perused the record of proceedings and evidence in the Trial Court as well as the filed submissions. The issue is whether the Trial Court erred in convicting and sentencing the Appellant as she did.
  2. The Appellant was a woman employed to wash, clean, change diapers for the minors.  She was entrusted to have access to them.  The only allegation is whether she committed the offence.
  3. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -

“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.

  1. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:

“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

  1. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:

“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-

‘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 proved beyond reasonable doubt, but nothing short of that will suffice.’”

Preliminary issues

  1. The Court appointed Advocate to act for the accused.  The Court ordered on 21st April 2022 Advocate to be supplied with an appointment letter.  This was before Hon. N. Kariuki.  The matter was re-allocated to the trial court on 8th September 2022 who proceeded without authority to go set aside the order given by P. N. Kariuki as follows;

“I find no need for Pro Bono Advocate to be appointed for the accused.  The matter be heard on 8th September 2022. 

  1. By so doing she was sitting on appeal from a decision already made by the Principal Magistrate less than 2 months earlier. 
  2. The right to legal representative was just thrashed.  The Court had no power to set aside orders of Hon. P. Kariuki.  It smirks of contempt and false assumption of authority. The Court’s personal feelings were irrelevant.  Had the Court found the appointment of Advocate agreeable, she should have placed the matter before the High Court for revision or forever keep her peace.  This caused a fatal miscarriage of justice that is totally detrimental to the right to fair trial which is sacrosanct.
  3. The Court that made the appointment must have considered all factors including that there was to be gross miscarriage of justice if the Appellant was not defended.  From the questions asked in cross-examination it is clear that there was gross miscarriage of justice.  This is not a case where the Court deemed to appoint.  It is a case where already the appointment had been made but the new Trial Court just simply disregarded the orders.  This is enough to dispose the Appeal but I had to deal with the other issues noting that this is not the Court of last resort. 
  4. The first issue is voire dire. None was carried out.  The questions asked were not meant to test the minors about the meaning of oath.  The evidence of the minors was incoherent.  However, it is expected at that age.  The next issue is voire dire.  It is true that these are writings under voire dire. The minors were 3 ½ years. There are some form of voire dire that was carried out. They do not meet the standard of voire dire. Voire Dire was discussed in the case of Maripett Loonkomok v Republic [2016] eKLR, where the court of Appeal (AKHANDIA, OUKO & M’INOTI, JJ.A.) stated as follows: -

“Section 19 of the Oaths and Statutory Declarations Act is concerned with the reception and admissibility of evidence of a child of tender years.  The section starts by declaring that where the child does not, in the opinion of the court understand the nature of an oath, his evidence may nonetheless be received though not given upon oath.  But that evidence shall only be received if, again in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and also if,   child understands the duty of speaking the truth.  So long as that evidence, though not on oath, is taken down in writing, it amounts to a deposition under section 233 of the Criminal Procedure Code.  The Code does not prescribe the precise manner of ascertaining and determining whether the child witness understands 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.  Voir dire, a latin phrase (verum dicere) for saying “what is true”, “what is objectively accurate or honest” has been used in most Commonwealth jurisdictions and in some instances in the United States of America, as “a trial within a trial”, a hearing to determine the admissibility of evidence or the competency or qualification of a witness or juror See Duhaime, Lloyd.  “Voir Dire definition” Duhaime’s Legal Dictionary.  But the origin of the rule on voir dire examination of a child witness as we know it today was first applied in the ancient yet landmark English case of R v Braisier (1779) 1 Leach Vol. I, case XC VIII, PP 199 – 200, which incidentally was a case involving sexual assault on a girl under 7 years of age.  The twelve Judges in that case stated, in part, that: -

“.. an infant, though under the age of seven years, may be sworn in a criminal prosecution, provided such infant appears, on strict examination by the court, to possess a sufficient knowledge of the nature and consequences of an oath… for there is no precise or fixed rule as to the time within which infants are excluded from giving evidence” (our emphasis)

Although this decision, through section 19 of Oaths and Statutory Declarations Act underpinned the legal practice in relation to children’s testimony in Kenya, we reiterate that the format and procedure of testing the intelligence, and sufficient knowledge and nature of the oath has been varied.  For instance, in the past the courts insisted that voir dire examination must be in the form of a dialogue, with the trial court recording questions posed to the child and the child’s answers nearly verbatim in the first person before drawing its conclusion on the question of suitability of the child.  See Johnson Muiruri v R (1983) KLR 447.  The courts today accept both the question and answer format and the recording of the child’s answers only. See James Mwangi Muriithi (supra).    What is constant is that, whatever format the court adopts it must be on record. It is equally settled that by dint of 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 and another v Msa Criminal Appeal No.373 of 2006.”

  1. The second minor admitted that they were playing with a pen.  The Appellant who was their maid had laid them to sleep of course part of the evidence is naughty but it is expected. 
  2. Further, I understand the offence of Sexual Assault is complete when: -

There is penetration of another’s genitalia with an object.  In this case, what the mother saw was reddish on the outer vagina.  The children were not taken for treatment but to some street clinic. 

  1. In a matter where it was wholly contested, the mother found it necessary to take the children to some backstreet clinic.  The Doctor from PGH testified on the that it is unclear what kind of treatment the minor received.

  1. The minors had many bruises on her genitalia.  This evidence contradicting the fact that the minor were supposed to have been pieced.  It is unknown what transpired for the children and multiple.
  2. The charge appears to had been a cover up for something more sinister. The dispute over PW4’s husband cannot be ignored. The father of the children was not called to testify. His evidence was crucial.  husband was not called to testify. How did the hymens get broken yet piecing was said to be on the external consequently the conviction is unsafe.

  1. The Appellant was sentenced to 10 years in prison.  Given that had the charge been proved she was to be a first offender.  However, there are 2 children involved therefore the sentence could have been proper if the conviction was proper.
  2. In the circumstances, I find that the Appeal was merited on 2 grounds.  First, the Appellant right to fair trial was affected on the setting aside of orders to have pro bono Advocate and second, the prosecution evidence was shaking.
  3. The Court did not appreciate that the burden of proof was on the prosecution and failure to call PW4’s husband as crucial witness was adverse to the prosecution case. 
  4. The primary care giver should have attempted to answer the question whether or not the reddish shown on the external genitalia were caused by the pens or not.  I am surprises that the children of extremely tender age could know that the pen they were pieced with as “red” are required to prove on issue. 
  5. However, in a matter of this nature, where PW4’s husband appears to have been at the centre of the storm, he was a necessary witness.  He does not have privilege since PW2 is not an accused.  Further the appellant is not a wife to PW4’s husband.  It follows therefore that had he testified evidence needed to be corroborated unless the same was found to be truthful.  The Court did not do so.  Secondly the Court placed burdens of proof on the Appellant.  In any case she raised at the earliest possible point that there was a dispute before her and PW4, over PW4’s husband.
  6. I agree with the prosecution that no number of witnesses is required to prove a case. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides as follows:-

“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”

  1. However, I am equally persuaded by the reasoning of Odunga, J as he then was in Bernard Philip Mutiso v Tabitha Mutiso [2022] eKLR where the learned judge stated as follows:

53. In this case the only people who could have explained the circumstances under which the accident occurred were Musyoka Mutiso who was ahead of the deceased, PW2 and the Appellant. PW2 gave evidence that tended to show that the accident was caused by the negligence of the Appellant while Musyoka Mutiso was not called to testify. In those circumstances one would have expected the Appellant to testify in order to controvert the evidence of PW2 but he chose not to do so. Accordingly, I find that not only was the evidence of PW2 uncontroverted but the conduct of the Appellant invited the inference that his evidence, had he testified, would have been adverse to his case as pleaded.

  1. In this case the children stated that were pierced with a red pen.  During voire dire, they did not know why they were in Court. The court ignored Section 124 of the Evidence Act on the corroboration of the evidence by minors.
  2. In the circumstances, I find the Appeal to be meritorious and allow it.

Determination

  1. In the upshot, I make the following Orders:
  2. The Appeal is allowed.
  3. The Judgement of the Trial Court is set aside in its entirety.
  4. The Appellant is hereby set free unless otherwise lawfully held.
  5. This file is closed.

DELIVERED, DATED and SIGNED at NYERI, Virtually on this 20th day of March, 2024. Judgment delivered through Microsoft Teams Online Platform.



In the presence of: -

Appellant present

Mr Mwakio for the state

Court Assistant -  Kimoine/Millicent

    ALICE NYAWIRA NGATIA VS The Republic ALICE NYAWIRA NGATIA VS The Republic