[2013] KEHC 1445 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEAL CASE NO.89 OF 2009

JAMES NJUGUNA NYAGA…………………………………….……..APPELLANT

VERSUS

REPUBLIC…………………………………………………………….RESPONDENT

(Being an appeal from a conviction and sentence of the Senior Resident Magistrates Court at Kangema (Hon. D. Orimba) dated 7th July, 2009)

JUDGMENT

On 31st October, 2008, the appellant was charged in the Kangema Senior Resident Magistrates’ Court Criminal Case No. 388 of 2008 with the offence of defilement of a girl contrary to section 8 (1) of the Sexual Offences Act, No. 3 of 2006. According to the particulars of the offence, the appellant intentionally and unlawfully, had carnal knowledge of NWJ, a girl aged six, in Murang’a district within central province on the 14th day of October, 2008. In the alternative the appellant was faced with a charge of indecent assault contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. In this particular instance, the appellant was said to have intentionally and unlawfully done an indecent act to NWJ by touching her private parts on the 14th day of October, 2008 in Murang’a district within Central Province.

The learned magistrate, in a judgment delivered on the 7th April, 2009, held that the prosecution had proved the main count of defilement against the appellant beyond reasonable doubt and in sentencing the appellant he ordered that the appellant be detained in prison at the pleasure of the president. His record shows that he arrived at this decision because he had taken into account the age of the appellant- he was sixty then, and that he was also aware that the mandatory sentence for the offence of which the appellant had been charged was life imprisonment.

The appellant filed what he termed as “grounds of appeal” on 27th April, 2009 and “supplementary grounds” on 10th February, 2012. After listing the grounds upon which his appeal was based in the grounds filed on 27th April, 2009, the appellant prayed for:

“1. A lesser severe sentence.

2. Probation order in respect to section 4 cap 64 law of Kenya

3. Discharge under section 33(1) p.c.

4. Bond to keep peace in respect of my age (65 years old)”.

A casual look at these grounds would suggest that the appellant had a problem with the sentence and not the conviction. However, in the supplementary grounds which he filed in court on 10th February, 2012, the appellant was more particular that he was not only appealing against the conviction but that he was also appealing against the sentence. The grounds upon which he sought the quashing of the conviction and the setting aside of the sentence are as follows:-

He pleaded not guilty to the charges;

The learned magistrate erred in law and in fact by failing to hold that none of the prosecution witnesses was an eye witness;

The magistrates court misdirected itself by building up the prosecution case;

The learned magistrate erred in law and in fact by failing to hold that the medical evidence was not credible;

The learned magistrate erred in law and in fact by convicting and sentencing the appellant based on improperly obtained evidence from the complainant.

The merits or lack thereof of the appellant’s appeal, particularly the grounds upon which it is based can only be appreciated once this court has evaluated the evidence on record. Afortiori, it is incumbent upon this court, as the first appellate court to reconsider the evidence, evaluate it and come to its own conclusions; in doing so this court has to bear in mind that in arriving at its decision, the magistrates’ court had the advantage, which this court does not have, of hearing and seeing the witnesses. The Court of Appeal’s decision in the case of Okeno versus Republic (1972) EA 32 has consistently been cited on this issue. In its pertinent part, the decision is to the effect that:-

“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrates’ findings can be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”(See page 36).

It is from this perspective that the evidence, in its entirety, has to be assessed.

In her own words, the complainant recalled having been held by hand and led by the appellant to his house where he removed her pants and inserted his penis into her vagina; she cried out but apparently nobody came to her rescue. The appellant was a person known to her even before this incident; she described him as “their neighbour”. After the appellant was done with her he gave her a fruit and one shilling. She ran to her mother and told her of the ordeal she just gone through. She told the court that her mother took her to Kirogo Dispensary and eventually to Kirogo police station. When the appellant cross-examined her, the complainant was categorical that she was on her way to a shopping centre, apparently for a haircut when the appellant accosted her. Interestingly, she said that the appellant had defiled her before and that this was not the first time.

Although the complainant said that she informed her mother what the appellant had done to her, her mother, J W K, testified that she was told of the complainant’s problems by her teacher, Mrs L N M on 14th October, 2010. Mrs M suspected the complainant to have been defiled and for this reason she summoned her mother to school and advised her to take her daughter to hospital. Mrs M herself confirmed this information though the record shows it was on 15th October, 2010 and not 14th October, 2010 when she noticed that the complainant could neither run nor sit comfortably. The complainant’s mother checked her and noticed a stain of blood on her inner wear. She took the complainant to Wanjengi health centre and later reported the matter to the police.

The clinical officer who examined the complainant is Paul Mwangi Gathogo; at the material time Mr Gathogo was based at Kirogo health centre. He examined the complainant on 30th October, 2008. The clinical officer confirmed that the patient was six years old and upon examination he established that the complainant had a white vaginal discharge, some pus, and bacteria. He also established that there had been penetration of the vagina. The complainant was, however, found to be HIV negative. The clinical officer examined the appellant as well and confirmed that both the appellant and complainant had infections. The clinical officer’s findings were duly recorded in the respective P3 forms for the complainant and the appellant and were admitted in evidence as exhibits. Amongst the clinical officer’s findings which was critical to the case against the appellant was the finding in both the complainant’s and the appellant’s urine the existence pus cells; in the clinical officer’s opinion which was never challenged and therefore not rebutted, both the appellant and the complainant had a common sexually transmitted infection.

The officer who received the report of the sexual assault and booked in the appellant was police constable William Mwanzia. He confirmed that the complainant’s mother along with two other members of the public made this report on 29th October, 2008. He issued them with a P3 form after having been dully filled by the clinical officer, it was returned on 30th October, 2008. The appellant was thereafter arrested and charged. Though this officer stated that the complainant’s mother was mentally unstable, there is nothing on record to support this assertion.

In total the prosecution called eight witnesses two of whom simply testified as what they heard from other people in relation to the complaint against the appellant. Their evidence, in my view was of little value and there is nothing on record to suggest that the learned magistrate was influenced by their evidence in coming to the decision he did.

The accused gave an unsworn statement in which he stated that on the material day he was not even at his home; he had left with a friend, after a church service, to go and buy a goat and it was not until 8. 00pm that he came back home. He confirmed that he was arrested on 15th October, 2008 and was examined by the clinical officer who examined and treated the complainant.

One of the sticking points at the appellant’s trial was the manner of reception of the complainant’s evidence and I suppose the appellant’s fifth ground of appeal is based on this issue. According to the appellant the complainant’s evidence was improperly received.

The complainant was affirmed before her evidence was taken; an affirmation carries the same weight in law as an oath and therefore the complainant’s affirmation was as good as an oath which, under section 151 of the Criminal Procedure Codeis mandatory for every witness in a criminal cause. That section provides as follows:-

“152. (1) Every witness in a criminal cause or matter shall be examined upon oath and the court before which any witness shall appear shall have full power and authority to administer the usual oath.”

The witness in issue in this particular case was a child of tender years and therefore before she is subjected to an oath or affirmation for purposes of being examined in a criminal cause the court must satisfy itself that she understands the nature of an oath or that if she lacks such an understanding she is intelligent enough to justify the reception of her evidence and understands the duty of speaking the truth. A court will come to both or either of these conclusions upon conducting a voire dire examination whose legal basis is found in section 19 of the Oaths and Statutory Declarations Act, Chapter 15 Laws of Kenya,before her evidence could be received. It is provided in this provision of the law that:-

“19. (1) Where in any proceedings before any court or person having by law or consent of the 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, understands the nature of an oath, his evidence may be received, though not given upon oath, if , in the opinion of the court or such other 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 into writing in accordance with section 233 of the Criminal Procedure Code, shall be deemed to be a deposition within the meaning of that section.”

In the case of Sakila versus Republic (1967) EA 403the court said at page 406 that;

“It is well established that before evidence of a person of tender years is admitted, a voire dire examination should be carried out in order that the court may satisfy itself that the witness is possessed of sufficient intelligence and that he understands the duty of speaking the truth in order to justify the reception of his evidence. And further that where it is clear that he understands the nature of the oath, his evidence may then be received on oath or affirmation. Where this procedure is not carried out and the evidence of a person of tender years is of a vital nature, it may be that that omission may occasion a miscarriage of justice.”

While the learned magistrate seems to have appreciated the importance of a voire dire examination, it cannot be said with any certainty that at the end of the examination of the complainant the court had any basis upon which it came to the conclusion that the complainant understood the nature of an oath and therefore could be affirmed. This is what transpired in court during the voire dire examination:-

Court: What is your name?

Complainant: My name is NW.

Do you go to school? Yes I do.

Court: which school do you attend and what class?

Complainant: I attend [particulars Witheld] and std 2.

Court: Do you know where you are now?

Complainant: I am in Kangema Law court.

Court: Do you know accused?

Complainant: I know accused.

Court: The complainant may be affirmed.

From this conversation there is nothing to suggest that the complainant understood the nature of an oath because no particular question in this regard was put to her. And even if the learned magistrate had established that the complainant understood the nature of an oath that finding was not recorded as it ought to. The manner of conducting a voire dire examination has been discussed in several decided cases. In the case ofKibangeny Arap Kolil versus Republic (1959) EA 92 the court said:-

“But the first duty of the court where the evidence of a child of tender years is sought to be given was made clear, namely to ascertain whether the child understands the nature of an oath, and to swear him only if he does.

In the present case the learned trial judge, so far as appears from the record, made no such investigation before affirming either of the two boy witnesses. Such an investigation need not be a lengthy one, but it must be made, and when made, the trial judge ought to record it. His only note of any relevance upon the record was one written after the conclusion of the evidence of the elder of the two boys, and before calling the younger boy, that:-

“the witness appears to a boy of twelve to fourteen but answers intelligently”

“That is not enough. The investigation should precede the swearing and the evidence and should be directed to the particular question whether the child understands the nature of an oath rather than to the question of his general intelligence.”(underlining mine).

In the case of Nyasani s/o Bichana versus Republic (1958) EA, 190 the court intimated that where a judge receives unsworn evidence of a child, he must record in his notes that “the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth”. Similarly I would opine that where the court choses to take evidence of a child on oath, the court must record that “the child understands the nature of an oath or affirmation” after voire dire.

Where this procedure is not strictly followed and the evidence of the child of tender years is of a material nature it may not be safe to convict in the absence of any other evidence. In Sakila versus Republic (supra)the court said at page 406:-

“Where this procedure is not carried out and the evidence of a person of tender years is of a vital nature, it may be that omission may occasion a miscarriage of justice…where there is no evidence other than that of the child of tender years who has not been properly examined the conviction cannot be sustained.”

No doubt the evidence of the complainant was material in the conviction of the appellant and if it was the only evidence upon which the learned magistrate relied upon to convict the appellant, I would have had no difficulties in quashing the conviction. Having fallen short of a properly conducted voire dire examination the complainant’s evidence could not sustain a conviction without occasioning a miscarriage of justice. In these circumstances, the only other evidence the learned magistrate could turn to and which in my view was critical in convicting the appellant was the evidence of the clinical officer. The evidence of the clinical officer was clear that there was a penetration of the complainant’s vagina and therefore there is no doubt that the complainant had been defiled. The connection between this defilement and the accused, as far as the evidence of the clinical officer is concerned, was the complainant having contracted sexually transmitted infection similar to the one that was found in the appellant’s urine. This evidence was not displaced and I am persuaded that with this evidence, the prosecution proved the charge of defilement against the appellant beyond reasonable doubt; for the foregoing reason I did not find any merit in any of the grounds upon which the appellants appeal was based except for ground 5 thereof whose merit would only have been useful to the appellant if the complainant’s evidence was the only available evidence against the appellant. The appeal stands dismissed.

On the issue of the sentence, section 8(2) of the sexual Offences Act, provides that a person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to imprisonment for life. The sentence is mandatory and this being the case it is not clear to me why the learned magistrate subjected the appellant to remain in prison as long as it pleases the president. I will accordingly set the sentence aside at substitute it with a sentence of life imprisonment as provided in the law for the type of offence for which the appellant was charged and convicted.

Signed, dated and delivered in open court on the 1st day of November, 2013

Ngaah Jairus

JUDGE