[2022] KEHC 15184 (KLR)

Mbevi v Republic (Criminal Appeal 14 of 2018) [2022] KEHC 15184 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15184 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 14 of 2018

SN Mutuku, J

October 12, 2022

Between

Bahati Robert Mbevi

Appellant

and

Republic

Respondent

Judgment

1. Bahati Robert Mbevi, the Appellant, was tried by the lower court for the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 19th day of November, 2014 at [Particulars Withheld] Location within Kajiado County, the accused intentionally and unlawfully caused his penis to penetrate the vagina of SNM, a child aged 11 years.

2. He was charged, alternatively, with the offence of indecent act with a child under section 11(1) of the Sexual Offences Act No. 3 of 2006 particulars of which are that on the 19th day of November, 2014 at [Particulars Withheld] within Kajiado County, the accused intentionally and unlawfully touched the vagina of SNM, a child aged 11 years.

3. The Appellant pleaded not guilty to the charges. A full trial was conducted. In a judgment delivered on August 3, 2017, the Appellant was found guilty of the offence of defilement and sentenced to life imprisonment.

4. The Appellant is aggrieved by the conviction and sentence and has raised this appeal. The grounds of Appeal are contained in his written submissions. He seems to have abandoned his earlier grounds of appeal contained in the Memorandum of Appeal which is not dated and does not bear a court stamp and amended the Petition of Appeal contained in his submissions. He is seeking to have the conviction quashed and the sentence set aside.

Memorandum of Appeal 5. The Appellant has raised the following grounds of appeal:i.That the learned trial magistrate erred in law and fact by failing to find that the elements of the offence of defilement were not proved beyond reasonable doubt as required by the law.ii.That the learned trial magistrate erred in law and fact by conducting the voir dire in contravention of the law.iii.That the learned trail magistrate erred in law and fact by failing to find that the PRC form was produced in contravention of the law as the maker was not called to testify.iv.That the learned trial magistrate erred in fact and law when he failed to properly evaluate the evidence on record and relied on insufficient, uncorroborated and incredible evidence and came to the wrong decision that the Appellant had defiled the two minors.v.That the trial magistrate erred in law by failing to note that the burden and standard of proof by the prosecution was not discharged and thus the prosecution case was not proved beyond reasonable doubt as provided under the law.

6. The appeal was canvassed through written submissions.

Appellant’s Submissions 7. The Appellant filed his submissions on February 7, 2021. He has submitted that the victim is a minor; that there was penetration of the victim’s genital organs and that it is the Appellant who caused the alleged penetration to the minor.

8. The Appellant submitted that the evidence of the complainant and her mother about what happened ought to have been taken with caution and should not have been a basis for conviction. He submitted that there was no medical evidence to support penetration; that absence of hymen and vaginal discharge are not conclusive evidence of penetration. He cited P. K. W v. Republic [2012] eKLR to point out that absence of hymen is not proof of penetration and that other factors can cause rapture of hymen. He submitted that there are other causes, including infections, that can result in vaginal discharge.

9. His submission is that the medical findings of the broken hymen and the presence of vaginal discharge was not conclusive prove that there was penetration. He has submitted that the evidence in this case does not conclusively prove penetration beyond reasonable doubt.

10. He submitted that the voir dire examination was not properly conducted and that the complainant was asked general questions that did not include whether she knows the meaning and purpose of an oath. The Appellant urged this court to find that the trial court did not appreciate the purpose of voir dire examination and that the questions put to the minor were not geared towards ascertaining the minor’s ability to appreciate telling the truth and the nature of an oath. He cited Joseph Opondo Onago v Republic [2000] eKLR to support his submissions on this point.

11. He also cited other authorities on this issue which I have considered. He urges that this court to find that the trial magistrate failed to properly conduct a voir dire examination on the minor and therefore her evidence was not properly received and that the evidence adduced did not prove the case against the Appellant beyond reasonable doubt.

Respondent’s Submissions 12. The Respondent submitted that the elements of defilement were proved beyond reasonable doubt; that the age of the minor was proved by production of birth certificate showing that she was born on July 4, 2003 and therefore she was 13 years at the time of the offence. The Respondent submitted that penetration was proved beyond reasonable doubt by the evidence of the complainant and medical evidence and finally that the Appellant was properly identified by the complainant as he was a person known to her prior to the offence.

13. On the issue of voir dire examination, the Respondent submitted that section 19 of the Oaths and Statutory Declarations Act does not provide for the format to be applied in voir dire examinations and that the format used evolved from case law. It was submitted that the answers given by the complainant during both the examination and cross-examination were coherent and sensible, a clear indication that the minor had a good grasp of the events that occurred during the defilement and was truthful in what she was telling the court.

14. The Respondent submitted that there is no hard and fast rule laid down that in all cases where voir dire procedure had not been strictly administered the prosecution case stood vitiated. The Respondent urged the court to find that the appeal lacks merit and should be dismissed and the life imprisonment upheld.

Determination 15. Am sitting on appeal as the first appellate court. I am required to consider and evaluate the evidence afresh with a view to arriving at an independent conclusion. Allowance is given that I did not observe the witnesses testifying and therefore cannot comment on their demeanour.

16. I have read the entire record of the lower court. I have noted that four (4) witnesses have testified in support of the prosecution case. The Appellant was known to the family of SNM (PW1), the complainant. He had worked as a herdsboy for them before this incident. On November 19, 2014, PW1 and her mother, EKM (PW2) were giving water to their goats. The Appellant was also present. PW2 left her daughter at the scene.

17. It is the evidence of PW1 that the Appellant took her to his hut and defiled her. He threatened to beat her if she told anyone about it. PW1 went home and told her mother. PW2 asked the Appellant about it but he denied and left.PW2 went to report to the police who advised her to take her daughter to hospital. Ann Kinyua (PW3), a Clinical Officer stations at Bissil Health Centre received PW1 on the same day and examined her. Her findings are that the complainant had a vaginal discharge and that her hymen was broken. There was no evidence of spermatozoa. According toPW3, the complainant told her that it was not the first time for the Appellant to defile her.

18. It is worth noting that neither the complainant nor her mother testified to prior defilements. It is also worth noting that PW3 did not testify to finding any injuries on the complainant’s genitalia. She only testified to finding the hymen broken without qualifying as to whether there were fresh injuries.

19. I have considered the grounds of appeal and the submissions. In my view the central issue arising from this appeal is whether the offence of defilement was proved beyond reasonable doubt. The complainant was born on 4th July 2003 according to the copy of the Birth Certificate marked Ex. 1. At the time the offence is said to have been committed on November 19, 2014, she was aged 11 years. Section 19 (1) of the Oaths and Statutory Declarations Act, Cap. 15 Laws of Kenya requires courts to subject children of tender years to voir dire examination to determine if the child understands the nature an oath, or is possessed of sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth.

20. The above section 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, 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.

21. The record of the trial court in the proceedings of February 18, 2016 show that the trial court examined the minor. It is worth reproducing the record of proceedings for that day. They show as follows:Court: The court conducts voir dire examination to assess the minor whether the witness understands the nature of the proceedings. The interpreter to interpret English to Kiswahili.Q – What is your name?A – SNM from [Particulars Withheld].Q – How old are you?A – I am 13 years. I go to….. Academy in…..Class 6. Q – Do you know why you are in court?A – Yes, I am here to testify on what happened to me on 1p/11/14. Q – Do you go to church?A – Yes, we are told to talk truth if one does not she or he will go to hell.Court: The witness knows what is happening in court and she also knows the purpose of telling the truth. She be sworn.

22. It is clear to this court that the trial magistrate misapprehended the legal requirements for conducting voir dire examination. This is obvious from the decision he arrived at after putting questions to the complainant. In Criminal Appeal No. 91 of 1999 Joseph Opondo v. Republic, reported in 2000 eKLR, the Court of Appeal dealt with this issue as follows:There are two stages which must be followed and must appear on the record of the trial court. First, the examination must, endeavour to ascertain whether the witness understands the meaning, nature and purpose of an oath. The question or questions by the court must be directed to that. If the court, from the answer it receives from the witness is satisfied that the witness understands the meaning, nature and purpose of an oath, the witness must then be allowed to give sworn evidence. Stage two of the matter does not then come into play.Where however, the witness does not understand the meaning, nature and purpose of an Oath, stage two of the examination then follows. The witness is examined by the court to ascertain whether the witness is possessed of sufficient intelligence to justify reception of his or her evidence though not upon oath. This examination must, equally, appear on record. Simple elementary questions would normally be asked like the date, the day, the school the witness is attending and other matters. If the court is satisfied from the answers to such questions, that the witness is possessed of sufficient intelligence, the court will allow the witness to give unsworn evidence.Having examined the record of the trial magistrate carefully, we are satisfied that the trial magistrate did not follow the sequence as set out in the preceding paragraphs. Nowhere does he appear to have asked the two witnesses whether they understood the meaning, nature and purpose of an oath. Instead the Magistrate seems to have started at the second stage of finding out whether the witnesses were possessed of sufficient intelligence. This, was an error which ought not to have occurred.

23. As stated above the trial magistrate did not follow this procedure. From the reproduced record of proceedings above, it is clear that the trial court did not establish whether the witness understands the meaning, nature and purpose of an oath upon which the trial magistrate could have based his decision to call the witness to be sworn in to testify. Further, the trial magistrate did not determine whether the witness was possessed of sufficient intelligence to justify reception of his or her evidence though not upon oath.

24. From the record of the trial court, the court seemed to have decided that the witness had satisfied the first stage of this examination given that he decided that the witness can give sworn evidence. However, that is not the finding the trial court arrived at as shown on the cited record of proceedings. This leads me to the conclusion that the evidence of the complainant was improperly received.

25. The Court of Appeal in the Joseph Opondo case above stated as follows:Having examined the record of the trial magistrate carefully, we are satisfied that the trial magistrate did not follow the sequence as set out in the preceding paragraphs. Nowhere does he appear to have asked the two witnesses whether they understood the meaning, nature and purpose of an oath. Instead the Magistrate seems to have started at the second stage of finding out whether the witnesses were possessed of sufficient intelligence. This, was an error which ought not to have occurred.

26. I agree with the reasoning of the Court of Appeal in the above case that, similarly in this case, the trial magistrate did not follow the sequence as set out in that case and this was an error on his part. Is this error of the trial court fatal to the case?

27. The problem I have with the evidence is that the complainant did not have fresh injuries in her genitals given that she was examined hours on the same day after the alleged defilement. The complainant did not testify that the Appellant had defiled her on other occasions other than November 19, 2014. Her mother did not mention this either. But PW3 claims to have been told by the complainant that the Appellant had defiled her before. This evidence leaves some doubts in my mind as to whether the complainant was defiled on that day. I do not rule out that this may have happened, but a criminal case must be proved beyond reasonable doubt. Any iota of doubt must go to the benefit of the Appellant.

28. With the evidence raising some doubts in my mind and the manner the trial court conducted the voir dire examination leading to improperly receiving the evidence of the complainant, it is my considered view that it was unsafe to convict the Appellant. A sexual offence involving a minor is a serious matter given that the law protects children by ensuring that their best interests are considered in all matters concerning children. But to convict an accused person in a matter that has not been proved beyond reasonable doubt is an affront to the rule of law.

29. I have considered the submissions of the Respondent that the sustainability or otherwise of the prosecution’s case solely depended on whether the evidence on which it was anchored met the threshold of proof beyond reasonable doubt. However, that evidence must be available to the court in order to convict.

30. The outcome of my determination of this appeal is that this appeal succeeds with the result that the conviction is hereby quashed and the sentence set aside. The Appellant is at liberty to go home unless for any other lawful cause he is held in custody.

31. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 12THOCTOBER, 2022. S. N. MUTUKUJUDGE