' (Being an Appeal from the Judgment and Sentence at the Principal Magistrate’s Court in Keroka, MCR(SO) No. 23 of 2019 delivered by Hon. B.M. Kimtai on 27 th October 2021 and 1 st November 2021 respectively).
The Appellant herein, Dominic Mogaka Nyakundi , was convicted for the offence of Defilement contrary to Sections 8 (1) and (2) of the Sexual Offences Act. The particulars of the charge are that on the 18 th June 2019 at Manga Top village in Borabu Sub-County within Nyamira County, intentionally caused his penis to penetrate the vagina of J.K.M. (particulars withheld) , a child aged 4 years. He was upon conviction sentenced to serve 30 years imprisonment thereby triggering the filing of the instant appeal in which he raised the following grounds of appeal: -
THAT the Learned Trial Magistrate erred in law and fact by convicting the Appellant but failed to note that the ingredients of the offence of defilement were not conclusively proved.
THAT the Learned Trial Magistrate erred in law and fact by convicting the Appellant yet failed to find that his defence was cogent and believable.
THAT the Learned Trial Magistrate erred in law and fact by convicting the Appellant yet failed to find that that the Prosecution did not discharge the burden of proof.
The Appeal was canvassed by way of written submissions which I have considered.
The duty of the first appellate court was discussed in Njoroge vs. Republic (1987) KLR 19 at P. 22:4 as follows: -
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of the first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya V. R(1957) EA 336, Ruwalla V. R (1957)EA 570)”
In line with the holding in the above cited case, I will embark on analysing the evidence presented before the trial court with a view to arriving at my own independent findings while bearing in mind the fact that I did not see or hear the witnesses testify.
The Prosecution called a total of seven (7) witnesses as follows: -
PW1 L.K, (particulars withheld) the victim’s mother, testified that she came back home from the farm on 18 th June 2019 at about 5pm and found the victim sleeping. Her other daughter, one Sharon (PW3), informed her that the Appellant had defiled the victim. She escorted the victim to the hospital upon noting that she was blood was oozing from her vagina. She confronted the Appellant, who was well known to her as her tenant, over the incident and stated that he asked her to forgive him because the devil had tempted him. She then asked the Appellant to accompany her to the hospital (Keneni dispensary) where both the victim and the Appellant were examined. The Appellant was thereafter arrested by the area Assistant chief.
PW2 J.K.M. (particulars withheld) the victim, testified that the Appellant lured her to his house where he defiled her after which he told her not to tell anyone about what had happened. She however informed her sister, PW3, of her ordeal.
PW3 S.N. (particulars withheld) testified that she knew the Appellant as Mogaka and their neighbour. She stated that she was at home alone with the victim on the material when the Appellant called the victim on the pretext that he would give her maize. She followed the victim to the Appellant’s house but he locked her outside. She however peeped through a window and saw the Appellant place the victim on his bed where he defiled her. She explained that the Appellant later opened the door and noticed that the victim had blood on her clothes. She later informed PW1 of what had transpired.
PW4 No. 58439 Sgt. Prisca Onchonga, the Investigating Officer, testified that she was on duty on when she encountered a mother and her child reporting a case of defilement. She accompanied them, together with PC Said, to Kijauri Sub-County Hospital where the child was examined and treated. She stated that the Appellant was brought to the station by the area chief, after which she booked him in custody. She took both the minor and the Appellant to the hospital where the medical superintendent examined the child and filled a P3 form. She added that the Appellant admitted that he had committed the offence during interrogation and that she visited the scene at Manga Top Junction, a plot with fourteen rooms, where the minor pointed out Room No. 1 as the place where the incident occurred. Inside the said room, they found a bed that the minor indicated was used during the act, and her sister (PW3) confirmed this. PW4 further established that the Appellant’s parents resided in Room No. 12 on the same plot. She thereafter recorded statements and charged the Appellant with the offence, noting that the minor knew the Appellant both physically and by name.
PW5, Alfred Nyambati, Chief of Esise Location, testified that on 19th June 2019 at about 5:00 p.m., while attending a welfare meeting, he noticed a crowd of women. Upon inquiry, one woman informed him of a defilement incident involving a minor. He accompanied her to a tea-buying centre, where she pointed out the minor’s house. The Appellant had locked himself inside the house, leading to his arrest. PW5 then escorted the Appellant to Manga Police Station.
PW6, Robert Ondieki, Clinical Officer at Kijauri Sub-County Hospital, examined J.K.M, a 5-year-old girl brought under police escort. The child alleged defilement by a neighbour who fled after she screamed. PW6 stated that the child had bruises on the posterior shoulder joints, a torn and broken hymen, and lacerations on both labias findings consistent with penetration. He filled and produced in court the P3 Form (P.Exh 3), PRC Form, and Treatment Notes (P.Exh 2).
PW7, No. 232302 P.C. Patrick Lokiringop, produced the victim’s immunization card, which was marked as Prosecution Exhibit 4 (P.Exh 4).
When placed on his defence, the Appellant (DW1) presented a sworn testimony in which he denied the offence and explained that he was on the material day at his place of work and returned home in the evening only to be arrested by the village elder on allegation of defilement. He denied committing the offence and stated that he did not know the victim.
Issues for Determination
I have considered the submissions of the parties and I isolate the following issues for my determination: -
Whether failure to conduct a voir dire could vitiate the trial.
Whether the Prosecution proved the offence to the required legal standard.
Whether the sentence was legal and appropriate.
Analysis and Determination.
Whether failure to conduct a voir dire could vitiate the trial.
I have perused the proceedings of the trial court at the point of taking the evidence of the victim. I note that even though the victim is reported to have been five years old, the trial court did not conduct a voir dire examination before taking her evidence as is prescribed by Section 19 of the Oaths and Statutory Declarations Act which states:
19. Evidence of children of tender years
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.
If any child whose evidence is received under subsection (1) wilfully 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.
In the case of Maripett Loonkomok vs. Republic [2016] KECA 520 (KLR) the court described what a voir dire entails as follows: -
“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].”
In the English case of R vs. Braisier (1779) 1 Leach Vol. I, case XC VIII, PP 199 – 200, a girl under 7 years was sexually assaulted and the learned judges held 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.”
From the above cited cases, it is clear that the purpose of conducting a voire dire is to ascertain the competence and understanding of a vulnerable witness. Courts have emphasised the importance of ensuring that such legal procedures are adhered to so as to avoid the nullification of criminal trials. The question for determination by the Court is whether failure, by the trial court, to conduct a voire dire was fatal to the case. In Athumani Ali Mwinyi vs. Republic , Criminal Appeal No.11 of 2015 the Court of Appeal stated 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.”
This principle was further reiterated in the case of Sammy Ngetich vs. Republic [2018] eKLR where a 13-years old victim testified without the trial court conducting a voire dire examination. The High Court quashed the conviction in that case and held thus: -
“15. The Court of Appeal has also through a long line of cases held that voir dire examination of children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. However, 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 unless there is sufficient independent evidence to support the charge (See Maripett Loonkomok vs. Republic (2016) eKLR).”
The Court must ultimately consider the circumstances of a case and determine whether the conviction can stand based on other evidence besides the minor’s testimony. The Appellant cited Section 19 of the Oaths and Statutory Declarations Act Prosecution and Section 2 of the Children Act which require that a when dealing with the evidence of a child of tender years, that is below 10 years old, a preliminary assessment be made before they can tender evidence on oath. This was not done in the present. The Appellant cited the cases of Ben Mwangi vs. Republic (2006) eKLR and Patrick Kathurima vs. Republic (2015) eKLR for the proposition that the trial was a nullity and that failure to conduct voir dire was fatal to the Prosecution’s case against him.
On their part, the Prosecution conceded to the Appeal and submitted that the victim, who was 4 years old child at the time of commission of the offence, testified as PW2 without being subjected to a voire dire examination. Counsel cited Section 125 (1) of the Evidence Act, Section 19 of the Oaths and Statutory Declarations Act and the case of Patrick Kathurima vs. Republic (2015) eKLR where the court emphasized the importance of testing viva voce evidence adduced by young children in criminal proceedings.
In this case, while I note that the trial court did not conduct a voire dire examination of the minor victim, I also note that the victim was not the only whose evidence linked the Appellant to the crime in question. The victim’s sister Sharon (PW3) also, a child of tender years, stated that she saw the Appellant place the victim on his bed and defile her. She also stated that she saw the victim’s clothes stained with blood when she came back from the Appellant’s house. The trial record indicates that a voire dire examination was conducted on PW3 before she tendered her evidence.
To my mind, PW3’s evidence was not only independent but also directly pointed to the culpability of the Appellant. This means that while the Court may opt to disregard the victim’s testimony, it may safely rely on other evidence on record to determine whether the Prosecution proved the charge to the required standard. I therefore find that failure to conduct a voire dire on the victim was not fatal to the Prosecution’s case.
Whether the Prosecution proved the offence to the required legal standard.
Section 8 of the Sexual Offences Act (the Act) provides as follows: -
8. Defilement
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
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.
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
……
In a defilement case, the Prosecution must tender evidence to prove, beyond reasonable doubt, the following ingredients; proof of the minority age of the victim; penetration and positive identification of the perpetrator . (See Charles Wamukoya Karani vs. R [2015] eKLR ).
In Richard Wahome Chege vs. R, Criminal Appeal No. 61 of 2014, the Court of Appeal in Nyeri held thus: -
“On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant and the complainant herself.”
In the present case, the minor’s mother PW1 testified that she was born in 2014. She stated that the minor was 5 years old at the time of her testimony. PW7 produced the victim’s immunization booklet (P.Exh4) which indicates the date of polio immunization at 31 st August 2016. I am satisfied that the minority age of the minor was proved to the required standard.
Turning to the second ingredient of penetration, Section 2 of the Act provides as follows: -
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
The Appellant submitted that penetration was not proved because the clinical officer did not establish if the victim’s hymen was freshly broken or not. He submitted that the PRC Form did not indicate whether there was any abnormal discharge from the victim’s genitalia after the high vaginal swab was conducted and that the P3 Form did not indicate whether the victim had any lacerations or bruises. He further submitted that sex was not the only means by which a victim could have a missing hymen and relied on the decision in the case of PKW vs. Republic in this regard. He urged the Court to find that the second ingredient of penetration was not proved to the required standards.
The Prosecution presented the evidence of the minor, her sister PW3 and medical evidence to prove penetration. Since this Court has already found that it cannot rely on the minor’s evidence because she had not been subjected to a voire dire examination, I shall only consider the evidence of PW3 who was an eye witness in this case and the medical evidence. PW3 testified as follows: -
“…I know the Accused. He is called Mogaka. He used to be our neighbour. All I know is that he called Janet and told her that he would give her maize. I was at home. I was alone with Janet at home. He took Janet to their house. I followed Janet to their house, accused closed the door. I remained outside. I then peeped through a window. I saw accused place Janet on the bed and he did bad things to her. Mogaka then opened the door. I saw Janet. She had blood on her clothes…”
Noting that PW3 was also a minor of tender years, she described her sister’s ordeal as ‘Mogaka doing bad things’ to her. It has been established through a long line of cases that euphemisms such as ‘did bad manners to me/her’ are generally accepted ways in which children or victims of sexual offences refer to sexual intercourse or in particular penetration. It is also noteworthy that PW3 was a direct eye witness who not only saw the victim being assaulted but also saw her immediately after she came from the Appellant’s house with bloodied clothes.
Considering the evidence of PW3 alongside that of PW6 the Clinical Officer who stated that the minor had a broken hymen and bruised genitalia, I find that penetration was proved beyond reasonable doubt.
On the identification of the Appellant as the perpetrator of the offence of defilement, PW2 and PW3 testified that the Appellant was well-known to them and the victim. The victim’s mother PW2 stated that he was their neighbour and that they lived in the same plot. They knew him by the name Mogaka. The offence in question was committed during the day when proper identification was possible. I am satisfied that the Appellant was positively identified as the victim’s assailant.
I have considered the Appellant’s defence and the fact that he stated that he did not know the victim or her sister PW3. I find that his entire defence was not truthful considering the fact that he did not deny that her shared the same residence with the victim and her family.
I have also considered the Appellant’s submission that his right to a fair trial under Article 50 (2) (j) of the Constitution was not upheld because the prosecution did not furnished him with the witness statements. I have perused the entire record of appeal, especially the trial court’s proceedings, and I note that at no time did the Appellant complain that he had not been supplied with the witness statements. I accordingly dismiss this claim as unfounded.
I find that the Prosecution discharged its burden of proof and I affirm the conviction on the main count as determined by the trial court.
Whether the sentence was legal and appropriate.
It is trite that sentencing is at the discretion of the trial court and that an appellate court will not ordinarily interfere with the sentence passed by the trial court unless the same is shown to have been based on the wrong principles or is manifestly harsh or excessive. In Bernard Kimani Gacheru vs. Republic [2002] eKLR, it was held thus: -
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
Section 8 (2) of the Act stipulates the punishment for the offence of defilement of a child of tender years is life imprisonment. I note that during sentencing, the trial court considered the Appellant’s mitigation and the fact that he was a first offender, was epileptic and prayed for forgiveness.
The issue for my determination is whether the sentence was legal and proper. The Appellant relied on the Court of Appeal’s decision in Julius Kitsao Manyeso vs. Republic, CACRA No. 12 of 2021 and Evans Nyamari Ayako vs. Republic, CACRA No. 22 of 2018 where life sentences were declared unconstitutional and agreed with the trial court for veering off from the stipulated sentence. He however submitted that the Court should consider the period spent in custody in light of the provisions of Section 333 (2) of the Criminal Procedure Code.
I have in the same manner considered the sentence of 30 years imprisonment and I find that it was illegal due to the current jurisprudence established by the Supreme Court in affirming mandatory minimum sentences in Sexual Offences matters.
Having regard to the tender age of the victim and the fact that she was sexually violated and robbed of her innocence through devious means employed by the Appellant, I find that offence called for no less a punishment other than the life imprisonment provided for under the Act. I however note that the Appellant was not notified of the possible of enhancement of sentence at the commencement of the appeal. In the circumstances of this case, I find that enhancing the sentence would greatly prejudice the Appellant.
Consequently, I dismiss the appeal on both conviction and sentence and uphold the decision by the trial court on both fronts but with a rider that the 30 years sentence period shall be computed to factor in the period that the Appellant spent in remand custody while awaiting his trial in line with the provisions of Section 333 (2) of the Criminal Procedure Code . (See the case of Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR ).
Orders accordingly.
'
The Appellant herein, Dominic Mogaka Nyakundi , was convicted for the offence of Defilement contrary to Sections 8 (1) and (2) of the Sexual Offences Act. The particulars of the charge are that on the 18 th June 2019 at Manga Top village in Borabu Sub-County within Nyamira County, intentionally caused his penis to penetrate the vagina of J.K.M. (particulars withheld) , a child aged 4 years. He was upon conviction sentenced to serve 30 years imprisonment thereby triggering the filing of the instant appeal in which he raised the following grounds of appeal: -
THAT the Learned Trial Magistrate erred in law and fact by convicting the Appellant but failed to note that the ingredients of the offence of defilement were not conclusively proved.
THAT the Learned Trial Magistrate erred in law and fact by convicting the Appellant yet failed to find that his defence was cogent and believable.
THAT the Learned Trial Magistrate erred in law and fact by convicting the Appellant yet failed to find that that the Prosecution did not discharge the burden of proof.
The Appeal was canvassed by way of written submissions which I have considered.
The duty of the first appellate court was discussed in Njoroge vs. Republic (1987) KLR 19 at P. 22:4 as follows: -
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of the first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya V. R(1957) EA 336, Ruwalla V. R (1957)EA 570)”
In line with the holding in the above cited case, I will embark on analysing the evidence presented before the trial court with a view to arriving at my own independent findings while bearing in mind the fact that I did not see or hear the witnesses testify.
The Prosecution called a total of seven (7) witnesses as follows: -
PW1 L.K, (particulars withheld) the victim’s mother, testified that she came back home from the farm on 18 th June 2019 at about 5pm and found the victim sleeping. Her other daughter, one Sharon (PW3), informed her that the Appellant had defiled the victim. She escorted the victim to the hospital upon noting that she was blood was oozing from her vagina. She confronted the Appellant, who was well known to her as her tenant, over the incident and stated that he asked her to forgive him because the devil had tempted him. She then asked the Appellant to accompany her to the hospital (Keneni dispensary) where both the victim and the Appellant were examined. The Appellant was thereafter arrested by the area Assistant chief.
PW2 J.K.M. (particulars withheld) the victim, testified that the Appellant lured her to his house where he defiled her after which he told her not to tell anyone about what had happened. She however informed her sister, PW3, of her ordeal.
PW3 S.N. (particulars withheld) testified that she knew the Appellant as Mogaka and their neighbour. She stated that she was at home alone with the victim on the material when the Appellant called the victim on the pretext that he would give her maize. She followed the victim to the Appellant’s house but he locked her outside. She however peeped through a window and saw the Appellant place the victim on his bed where he defiled her. She explained that the Appellant later opened the door and noticed that the victim had blood on her clothes. She later informed PW1 of what had transpired.
PW4 No. 58439 Sgt. Prisca Onchonga, the Investigating Officer, testified that she was on duty on when she encountered a mother and her child reporting a case of defilement. She accompanied them, together with PC Said, to Kijauri Sub-County Hospital where the child was examined and treated. She stated that the Appellant was brought to the station by the area chief, after which she booked him in custody. She took both the minor and the Appellant to the hospital where the medical superintendent examined the child and filled a P3 form. She added that the Appellant admitted that he had committed the offence during interrogation and that she visited the scene at Manga Top Junction, a plot with fourteen rooms, where the minor pointed out Room No. 1 as the place where the incident occurred. Inside the said room, they found a bed that the minor indicated was used during the act, and her sister (PW3) confirmed this. PW4 further established that the Appellant’s parents resided in Room No. 12 on the same plot. She thereafter recorded statements and charged the Appellant with the offence, noting that the minor knew the Appellant both physically and by name.
PW5, Alfred Nyambati, Chief of Esise Location, testified that on 19th June 2019 at about 5:00 p.m., while attending a welfare meeting, he noticed a crowd of women. Upon inquiry, one woman informed him of a defilement incident involving a minor. He accompanied her to a tea-buying centre, where she pointed out the minor’s house. The Appellant had locked himself inside the house, leading to his arrest. PW5 then escorted the Appellant to Manga Police Station.
PW6, Robert Ondieki, Clinical Officer at Kijauri Sub-County Hospital, examined J.K.M, a 5-year-old girl brought under police escort. The child alleged defilement by a neighbour who fled after she screamed. PW6 stated that the child had bruises on the posterior shoulder joints, a torn and broken hymen, and lacerations on both labias findings consistent with penetration. He filled and produced in court the P3 Form (P.Exh 3), PRC Form, and Treatment Notes (P.Exh 2).
PW7, No. 232302 P.C. Patrick Lokiringop, produced the victim’s immunization card, which was marked as Prosecution Exhibit 4 (P.Exh 4).
When placed on his defence, the Appellant (DW1) presented a sworn testimony in which he denied the offence and explained that he was on the material day at his place of work and returned home in the evening only to be arrested by the village elder on allegation of defilement. He denied committing the offence and stated that he did not know the victim.
Issues for Determination
I have considered the submissions of the parties and I isolate the following issues for my determination: -
Whether failure to conduct a voir dire could vitiate the trial.
Whether the Prosecution proved the offence to the required legal standard.
Whether the sentence was legal and appropriate.
Analysis and Determination.
Whether failure to conduct a voir dire could vitiate the trial.
I have perused the proceedings of the trial court at the point of taking the evidence of the victim. I note that even though the victim is reported to have been five years old, the trial court did not conduct a voir dire examination before taking her evidence as is prescribed by Section 19 of the Oaths and Statutory Declarations Act which states:
19. Evidence of children of tender years
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.
If any child whose evidence is received under subsection (1) wilfully 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.
In the case of Maripett Loonkomok vs. Republic [2016] KECA 520 (KLR) the court described what a voir dire entails as follows: -
“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].”
In the English case of R vs. Braisier (1779) 1 Leach Vol. I, case XC VIII, PP 199 – 200, a girl under 7 years was sexually assaulted and the learned judges held 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.”
From the above cited cases, it is clear that the purpose of conducting a voire dire is to ascertain the competence and understanding of a vulnerable witness. Courts have emphasised the importance of ensuring that such legal procedures are adhered to so as to avoid the nullification of criminal trials. The question for determination by the Court is whether failure, by the trial court, to conduct a voire dire was fatal to the case. In Athumani Ali Mwinyi vs. Republic , Criminal Appeal No.11 of 2015 the Court of Appeal stated 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.”
This principle was further reiterated in the case of Sammy Ngetich vs. Republic [2018] eKLR where a 13-years old victim testified without the trial court conducting a voire dire examination. The High Court quashed the conviction in that case and held thus: -
“15. The Court of Appeal has also through a long line of cases held that voir dire examination of children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. However, 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 unless there is sufficient independent evidence to support the charge (See Maripett Loonkomok vs. Republic (2016) eKLR).”
The Court must ultimately consider the circumstances of a case and determine whether the conviction can stand based on other evidence besides the minor’s testimony. The Appellant cited Section 19 of the Oaths and Statutory Declarations Act Prosecution and Section 2 of the Children Act which require that a when dealing with the evidence of a child of tender years, that is below 10 years old, a preliminary assessment be made before they can tender evidence on oath. This was not done in the present. The Appellant cited the cases of Ben Mwangi vs. Republic (2006) eKLR and Patrick Kathurima vs. Republic (2015) eKLR for the proposition that the trial was a nullity and that failure to conduct voir dire was fatal to the Prosecution’s case against him.
On their part, the Prosecution conceded to the Appeal and submitted that the victim, who was 4 years old child at the time of commission of the offence, testified as PW2 without being subjected to a voire dire examination. Counsel cited Section 125 (1) of the Evidence Act, Section 19 of the Oaths and Statutory Declarations Act and the case of Patrick Kathurima vs. Republic (2015) eKLR where the court emphasized the importance of testing viva voce evidence adduced by young children in criminal proceedings.
In this case, while I note that the trial court did not conduct a voire dire examination of the minor victim, I also note that the victim was not the only whose evidence linked the Appellant to the crime in question. The victim’s sister Sharon (PW3) also, a child of tender years, stated that she saw the Appellant place the victim on his bed and defile her. She also stated that she saw the victim’s clothes stained with blood when she came back from the Appellant’s house. The trial record indicates that a voire dire examination was conducted on PW3 before she tendered her evidence.
To my mind, PW3’s evidence was not only independent but also directly pointed to the culpability of the Appellant. This means that while the Court may opt to disregard the victim’s testimony, it may safely rely on other evidence on record to determine whether the Prosecution proved the charge to the required standard. I therefore find that failure to conduct a voire dire on the victim was not fatal to the Prosecution’s case.
Whether the Prosecution proved the offence to the required legal standard.
Section 8 of the Sexual Offences Act (the Act) provides as follows: -
8. Defilement
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
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.
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
……
In a defilement case, the Prosecution must tender evidence to prove, beyond reasonable doubt, the following ingredients; proof of the minority age of the victim; penetration and positive identification of the perpetrator . (See Charles Wamukoya Karani vs. R [2015] eKLR ).
In Richard Wahome Chege vs. R, Criminal Appeal No. 61 of 2014, the Court of Appeal in Nyeri held thus: -
“On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant and the complainant herself.”
In the present case, the minor’s mother PW1 testified that she was born in 2014. She stated that the minor was 5 years old at the time of her testimony. PW7 produced the victim’s immunization booklet (P.Exh4) which indicates the date of polio immunization at 31 st August 2016. I am satisfied that the minority age of the minor was proved to the required standard.
Turning to the second ingredient of penetration, Section 2 of the Act provides as follows: -
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
The Appellant submitted that penetration was not proved because the clinical officer did not establish if the victim’s hymen was freshly broken or not. He submitted that the PRC Form did not indicate whether there was any abnormal discharge from the victim’s genitalia after the high vaginal swab was conducted and that the P3 Form did not indicate whether the victim had any lacerations or bruises. He further submitted that sex was not the only means by which a victim could have a missing hymen and relied on the decision in the case of PKW vs. Republic in this regard. He urged the Court to find that the second ingredient of penetration was not proved to the required standards.
The Prosecution presented the evidence of the minor, her sister PW3 and medical evidence to prove penetration. Since this Court has already found that it cannot rely on the minor’s evidence because she had not been subjected to a voire dire examination, I shall only consider the evidence of PW3 who was an eye witness in this case and the medical evidence. PW3 testified as follows: -
“…I know the Accused. He is called Mogaka. He used to be our neighbour. All I know is that he called Janet and told her that he would give her maize. I was at home. I was alone with Janet at home. He took Janet to their house. I followed Janet to their house, accused closed the door. I remained outside. I then peeped through a window. I saw accused place Janet on the bed and he did bad things to her. Mogaka then opened the door. I saw Janet. She had blood on her clothes…”
Noting that PW3 was also a minor of tender years, she described her sister’s ordeal as ‘Mogaka doing bad things’ to her. It has been established through a long line of cases that euphemisms such as ‘did bad manners to me/her’ are generally accepted ways in which children or victims of sexual offences refer to sexual intercourse or in particular penetration. It is also noteworthy that PW3 was a direct eye witness who not only saw the victim being assaulted but also saw her immediately after she came from the Appellant’s house with bloodied clothes.
Considering the evidence of PW3 alongside that of PW6 the Clinical Officer who stated that the minor had a broken hymen and bruised genitalia, I find that penetration was proved beyond reasonable doubt.
On the identification of the Appellant as the perpetrator of the offence of defilement, PW2 and PW3 testified that the Appellant was well-known to them and the victim. The victim’s mother PW2 stated that he was their neighbour and that they lived in the same plot. They knew him by the name Mogaka. The offence in question was committed during the day when proper identification was possible. I am satisfied that the Appellant was positively identified as the victim’s assailant.
I have considered the Appellant’s defence and the fact that he stated that he did not know the victim or her sister PW3. I find that his entire defence was not truthful considering the fact that he did not deny that her shared the same residence with the victim and her family.
I have also considered the Appellant’s submission that his right to a fair trial under Article 50 (2) (j) of the Constitution was not upheld because the prosecution did not furnished him with the witness statements. I have perused the entire record of appeal, especially the trial court’s proceedings, and I note that at no time did the Appellant complain that he had not been supplied with the witness statements. I accordingly dismiss this claim as unfounded.
I find that the Prosecution discharged its burden of proof and I affirm the conviction on the main count as determined by the trial court.
Whether the sentence was legal and appropriate.
It is trite that sentencing is at the discretion of the trial court and that an appellate court will not ordinarily interfere with the sentence passed by the trial court unless the same is shown to have been based on the wrong principles or is manifestly harsh or excessive. In Bernard Kimani Gacheru vs. Republic [2002] eKLR, it was held thus: -
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
Section 8 (2) of the Act stipulates the punishment for the offence of defilement of a child of tender years is life imprisonment. I note that during sentencing, the trial court considered the Appellant’s mitigation and the fact that he was a first offender, was epileptic and prayed for forgiveness.
The issue for my determination is whether the sentence was legal and proper. The Appellant relied on the Court of Appeal’s decision in Julius Kitsao Manyeso vs. Republic, CACRA No. 12 of 2021 and Evans Nyamari Ayako vs. Republic, CACRA No. 22 of 2018 where life sentences were declared unconstitutional and agreed with the trial court for veering off from the stipulated sentence. He however submitted that the Court should consider the period spent in custody in light of the provisions of Section 333 (2) of the Criminal Procedure Code.
I have in the same manner considered the sentence of 30 years imprisonment and I find that it was illegal due to the current jurisprudence established by the Supreme Court in affirming mandatory minimum sentences in Sexual Offences matters.
Having regard to the tender age of the victim and the fact that she was sexually violated and robbed of her innocence through devious means employed by the Appellant, I find that offence called for no less a punishment other than the life imprisonment provided for under the Act. I however note that the Appellant was not notified of the possible of enhancement of sentence at the commencement of the appeal. In the circumstances of this case, I find that enhancing the sentence would greatly prejudice the Appellant.
Consequently, I dismiss the appeal on both conviction and sentence and uphold the decision by the trial court on both fronts but with a rider that the 30 years sentence period shall be computed to factor in the period that the Appellant spent in remand custody while awaiting his trial in line with the provisions of Section 333 (2) of the Criminal Procedure Code . (See the case of Ahamad Abolfathi Mohammed & Another vs. Republic [2018] eKLR ).
Orders accordingly.
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