https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10349

Juma v ODPP (Criminal Appeal E013 of 2025) [2026] KEHC 10349 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 10349 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E013 of 2025 RK Ondieki, J June 9, 2026 Between Marko Idd Juma Appellant and ODPP Respondent (Being an Appeal against the Judgment by Hon. J.O. Manasses (R.M.) in Principal Magistrate’s Court at Sirisia, Case No. E014 of 2024, Delivered on 20th August, 2024) Judgment (Being an Appeal against the Judgment by Hon. J.O. Manasses (R.M.) in Principal Magistrate’s Court at Sirisia, Case No. E014 of 2024, Delivered on 20th August, 2024). 1.Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. The duties of an Appellate Court have been set out by the Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 where it was held that the appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, ...........The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test. 2.In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated that an Appellant on a first appeal 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; only then can it decide whether the Magistrate’s findings should 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. 3.In the case of Odhiambo Vs Republic Criminal App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that on a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour. 4.A.L. (PW1) told court that she was born on 14th September, 2010 as evidenced by a birth certificate produced as Exhibit 1. The victim told court that on 4/2/2024, she was passing by the accused’s home when he called in the house to ostensibly send her to a chemist. Immediately she entered into the house, the appellant threatened to stab her if she shouted. He undressed and defiled her and thereafter left her go. She went and revealed to her grandmother what had happened. She was taken to Malakisi Health Centre and she was examined and P3 Form, PRC and Medical Treatment notes were issued to the subject. The victim told court that the appellant is her grandfather. Under cross examination, the victim said that the appellant is her grandfather who on the material date disguised to send her to a chemist. 5.John Wabomba Khisa (PW2) told court that he is a clinical officer at Malakisi Health Centre and that on 4th February, 2024 examined the subject herein who reported to have been defiled by a known person to her. Upon examination, there was laceration on labia minoria as well as majoria, left side of vagina had blood clot and the hymen was not intact. There was blood in her urine. The witness produced P3 Form as Exhibit 2, PRC Form as Exhibit 3 and treatment notes as Exhibit 4(a) and 4(b). 6.Rose Wanjala Ayuma(PW3) told court that she is a grand mother to the victim born on 14th September 2010 as evidenced by a birth certificate produced as Exhibit 1. The witness further said on 4th February, 2024, the victim disclosed to her that a man accosted her while welding a knife and defiled her. She took her to Malakisi Health Centre for medical examination. 7.PC Kelvin Shirako(PW4) told court that on 4th February, 2024 in the company of her grandmother, he received the victim who narrated to have been defiled by the appellant, a person known to her. The appellant was welding a knife. The witness recorded the statements and booked the report at the police station. The grandmother gave out a birth certificate to show that at the time, the victim was aged 13 years old. The witness charged the appellant with defilement. 8.Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the Main Count, with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2026. Particulars of the offence were that on the 4th February, 2024, at about 11:00am at Welekha Village of Malakisi Location in Bungoma West Sub-County within Bungoma County, unlawfully caused your penis to penetrate the vagina of A.L. a girl aged 13 years old. 9.In the Alternative Count, the Appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence were that on the 4th February, 2024, at about 11:00am at Welekha Village of Malakisi Location in Bungoma West Sub-County within Bungoma County, unlawfully touched the vagina of A.L. with your penis a girl aged 13 years old. 10.The Appellant Marko Idd Juma in his unsworn testimony told court that on 4th February, 2024 at about 11:00am he was in his house attending to his chores and come 11:00pm, he was arrested from his house by police and charged with the charges. He is in dark as to the charges he is facing. The appellant closed his case without calling any witness. 11.In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;a.That the learned trial Magistrate erred in law and fact by convicting him with riddled discrepancies and inconsistencies on the prosecution witnesses.b.That the learned trial Magistrate erred in law and fact by failing to consider that the prosecution had failed to prove its case beyond reasonable doubt.c.That the learned trial Magistrate erred in law and fact by convicting yet the key ingredients of defilement was never proved.d.That the learned trial Magistrate erred in law and fact by meting out excessive sentence.e.That the learned trial Magistrate erred in law and fact by in rejecting his plausible defence. 12.The Respondent and the Appellants filed written submissions and relied on them. Analysis and Determination: 13.I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent and to set the ball rolling, I find it extremely apposite to drop anchor, so that as I delve into the re-evaluation of the matter, I do not lose my footing. In Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. Whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 14.In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed that in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. 15.In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1). 16.In Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 Ugandan Court of Appeal said that in sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured. 17.In this appeal, I am a little bit uneasy with procedural defects that was committed by the trail magistrate which I need to address even without delving into the factual matrix and merits and demerits of this Appeal. This is in respect to voire dire examination on the victim. 18.It is a requirement under Section 19 of the Oaths and Statutory Declarations Act that voire dire examination must be carried out on children of tender age. The said provision states that 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, through not given upon oath, if, in the opinion of the court or such person, he is possessed on sufficient intelligence to justify the reception of the evidence, and is possessed of sufficient intelligence of justify the reception of the evidence, and understands the duty of speaking the truth. 19.Section 2 of the Children’s’ Act defines who a child of tender years is, as “a child under the age of 10 years”. The Act is not however explicit that this age accrues to exception to conducting a voire dire examination to children under the age of 10 years. Indeed, only the case law has settled this question, generally holding that for purposes of conducting a voire dire examination, a child of tender years is one below the age of 14 year. 20.InAml Vs Republic [2012] KEHC 2554 (KLR), the court held that on the first ground the Appellant submits that the failure by the trial magistrate to conduct a voire dire examination on the complainant rendered her evidence inadmissible and was thus fatal to the prosecution case. The term ‘voire dire’ is a French term and literally means ‘tell the truth’. The law requires that a voire dire examination be conducted on a child of tender years before his/her evidence is received in court. The purpose of such an examination is to enable the trial court determine firstly whether the child in question comprehends the nature and effect of an oath and secondly whether that child understands the importance of telling the truth. As I have stated earlier the law requires that a voire dire examination be conducted only on a child of tender years. A child of tender years is taken to mean any child aged 14 years or below. 21.The Court of Appeal in Patrick Kathurima Vs Republic [2015] eKLR held that the requirement of voire dire examination resonates with the need to preserve the integrity of the viva voce evidence of young children, especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of Section 19 of Cap 15. We are aware that Section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the Oaths and Statutory Declaration Act, Cap 15. We have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes. 22.The Subordinate court proceedings show that on 26th March, 2024, the victim was sworn and straight away commenced her testimony. It is not clear how the trial magistrate was convicted that the victim was intelligent enough to be sworn in view of section Section 19 of the Oaths and Statutory Declarations Act. Further based on the birth certificate, it is no doubt that the victim was born on 14th September, 2010 and so, as at 26th March, 2024, the victim was 13 years 6 months and 12 days, well below 14 years. In law, it was incumbent that a voire dire examination be conducted before any form of testimony by the victim. 23.The Court of Appeal in Elirema and Another Vs Republic [2003] KLR 537, it was held that where there is a gap in the evidence or other defect occasioned by the prosecution the appellate court will not order for a re-trial; but where it is found like in this instance that the gaps, irregularities and defects were occasioned by the trial court and it is to blame, a retrial may be ordered provided these other factors are also taken into consideration; which factors are as set down hereunder; (i) There is admissible evidence that can lead to a conviction; (ii) Where it is required in the interest of justice; provided it is unlikely to cause injustice to the appellants and the availability of the witnesses. 24.For the forgoing reasons this court makes the following findings;(i)This a suitable case for this court to make an order for retrial;(ii)The conviction is hereby quashed and the sentence set aside;(iii)The appellant shall be released into police custody and shall be produced before the Chief Magistrate Bungoma on the 18the day of June, 2026 for the purposes of directions on the retrial before a subordinate court with competent jurisdiction;Orders accordingly. DELIVERED VIRTUALLY THIS 9TH JUNE, 2026 IN THE PRESENCE OF THE APPELLANT, MS MATERE FOR ODPP AND COURT ASSISTANT,ORDERS ACCORDINGLY.HON. R.K. ONDIEKI.JUDGE.Proe: I seektyped proceedings and the rulingCourt: the ty[ed proceedoinfs and the ruling tob esuppied.