[2017] KEHC 1524 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

CRIMINAL APPEAL NO. 11 OF 2015

GEOFREY OJIAMBO ALACHA.......................APPELLANT

VERSUS

REPUBLIC...................................................... REPUBLIC

(From the original conviction and sentence in Criminal case

No. 14 of 2013 of theChief Magistrate’s Court at Busia

by Hon. M. Wambani– Chief Magistrate)

JUDGMENT

GEOFREY OJIAMBO ALACHA,the appellant herein, was convicted for the offence of defilement contrary to section 8(1) (2) (sic) of the Sexual Offences Act No.3 of 2006.

The particulars of the offence were that on 3rd January 2013 at[particulars withheld]] in BUSIA County, he intentionally and unlawfully caused his penis to penetrate the vagina of JN,a child aged 7 years.

He was sentenced to serve 10 years imprisonment. He has appealed against both conviction and sentence.

The appellant was in person. He raised five grounds of appeal that I have summarized as follows:

1. That the learned trial magistrate erred in law and in fact by convicting him without evaluating the evidence on record.

2. That the learned trial magistrate erred in law and in fact by convicting him on the basis of insufficient evidence.

The state opposed the appeal through Mr. Owiti, the learned counsel.

The facts of the prosecution case were briefly as follows:

On 3rd January 2013 at about 5 p.m, the complainant walked home with difficulties and implicated the appellant in the offence of her defilement. When she was examined, she was found with bruises in her genitalia and on her thighs.

In his defence the appellant denied any involvement in the offence and pleaded an alibi. He also contended that he was implicated due to some land dispute with the family of S.

This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of OKENO vs. REPUBLIC [1972] EA 32.

I have noticed that the charge was erroneously drafted. It ought to have read contrary to "...section 8(1) as read with section 8(2) ..."

From the record, it is clear that the appellant understood the charge before pleading to it. He subsequently participated fully in the trial. I make a finding that he was not prejudiced in any way and the defect is curable under section 382 of the Criminal Procedure Code.

Section 8(2) of the Sexual Offences Act provides as follows:

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.

It is evident that the sentence meted by the trial magistrate was illegal. The offence attracts a mandatory life imprisonment sentence.

When this matter came up for hearing on 31st January 2013, the learned trial magistrate Hon. Innocent Maisiba proceeded to take the evidence of the complainant, JN,a girl aged 7 years without conducting a voir dire examination. The record is silent as to whether the complainant was sworn or not before she testified. It is also silent as to whether she was possessed of the requisite intelligence and whether she understood the duty of speaking the truth.

There are legal steps to be taken before a child of tender years testifies. Who is a child of tender years? Section 2 of the Children Act defines a child of tender years as follows:

“child of tender years” means a child under the age of ten years;

Section 19(1) of the Oaths and Statutory Declaration Act Cap 15 Laws of Kenya provides as follows:

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 as aforesaid, 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 as aforesaid, 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 in writing in accordance with the provisions of section 233 of the Criminal Procedure Code, shall be deemed to be a deposition within the meaning of that section.

The court of appeal inKINYUA Vs R [2004] I KLR 256(at265)said:

There are two steps to be borne in mind. The first step is for the court to ascertain whether the child understands the nature of an oath. An investigation to this effect must be done by the court immediately the child – witness appears in court. The investigation need not be a long one but it has to be done and has to be directed to the particular question whether the child understands the nature of an oath. If the answer to this question is in the affirmative, then, the court proceeds to swear or affirm the child and to take his or her evidence upon oath. On the other hand, if the child – witness does not understand the nature of an oath, he or she is not necessarily disqualified from giving evidence. The second step then follows. The court may still receive his evidence if the court is satisfied, upon investigation, that he is possessed of sufficient intelligence and understands the duty of speaking the truth. Again investigation in this respect need not be a long one but it must be done and when done, it must appear on record. Some basic but elementary questions may be asked of the child to assess the level of his intelligence and whether he understands the duty of speaking the truth or otherwise. Where the court is so satisfied, then, the court will proceed to record unsworn evidence from the child – witness.

The record is silent on both steps and the trial magistrate therefore erred in failure to follow the laid down procedure. This was prejudicial to the appellant and the proceedings amounted to a mistrial. Although considerable time has lapsed, in the interest of justice I make an order for retrial before a magistrate of competent jurisdiction other than Hon. M. Wambani. I am aware Hon. Innocent Maisiba is deceased.

The appellant to be produced before the Chief Magistrate Court Busia on 14th November 2017 for plea taking and for any other necessary orders.

DELIVEREDandSIGNEDatBUSIA this 7th dayof November, 2017

KIARIE WAWERU KIARIE

JUDGE