[2022] KEHC 12387 (KLR)

Munyua v Republic (Criminal Appeal 10 of 2019) [2022] KEHC 12387 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12387 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Appeal 10 of 2019

RM Mwongo, J

June 16, 2022

Between

Meshack Kiria Munyua

Appellant

and

Republic

Respondent

(Being an appeal from Criminal Case S.O. No. 109 of 2016 by Hon. D.N. Sure P.M. Engineer Law Courts)

Judgment

1. The appellant was charged with defilement of a girl contrary to Section 8(1) and Section 8(2) of the Sexual Offences Act No.3 of 2006. An alternative charge was the offence of indecent act with a child contrary to Section 11(1) Sexual Offences Act. The particulars were that on the 4th day of February 2016 at [Particulars withheld] village in Kinangop within Nyandarua County he intentionally caused his penis to penetrate the vagina of PKM a child aged 11 years. Hon G.N. Opakasi concluded hearing of the five (5) prosecution witnesses and on 8/6/2017 found that there was a case to answer, and was put on his defence.

2. Due to a number of reasons, including that the accused’s family applied for him to be subjected to a psychiatric examination, the accused did not present his defence until 28th January, 2019. At that time a new trial magistrate, D. N. Sure, took over the matter and explained the provisions of Section 200 of the Criminal Procedure Code to the accused, who stated that he wants the matter to proceed from where it had reached.

3. At the hearing on 4th April, 2019 the accused gave an unsworn statement and two defence witnesses testified. In its judgment, the court found the accused guilty. At mitigation before sentence, he offered no statement. The accused was sentenced to life imprisonment. The accused was unrepresented at the trial.

4. Dissatisfied, the appellant has appealed against conviction and sentencing on the grounds that:a.The learned magistrate erred in law and in fact and misdirected itself by not warning itself on the danger of acting on the uncorroborated evidence of a single minor witness.b.The learned magistrate erred in law and fact in failing to comply with the proviso to section 124 of the Evidence Act Cap. 80 of the Laws of Kenya by failing to record reasons for believing the complainant was a truthful witness.c.The trial court erred convicting appellant based on the evidence the complainant bearing in mind that the Complainant testified before a different court and the learned magistrate did not thus have a chance to observe the complainant’s demeanor.d.The trial court misdirected itself by concluding that the clinical findings were sufficient corroboration when such findings were devoid of any proof.e.The learned magistrate erred in law and in fact in relying wholly on the medical evidence to convict the appellant whereas it is apparent that the medical examination was done three days after the alleged defilement and after the complainant had taken a shower.f.The trial court failed to appreciate that the medical findings were overwhelmingly inconsistent with the offence of defilement in that no injuries were found on the labia area of the complainant. The broken hymen could have been done either earlier or after the alleged incident and no lacerations were noted.g.The learned magistrate erred in law and if fact assuming that because no evidence of existence a grudge between the appellant and complainant’s family was tendered, then the complainant must have been telling the truth.

5. The parties filed written submissions, and it soon became evident that the accused had filed two sets of submissions; one based on the original petition of appeal before amendment, the other by counsel. The state had also filed submissions on the original petition of appeal. The court therefore requested the parties to confirm the submissions to be relied upon. The defence suggested the court select the submissions.

Analysis and Determination 6. The issues for determination may be summarized as follows:a.Whether the evidence of the minor without corroboration or compliance with section 124 Evidence Act was sufficient to convictb.Whether the appellant suffered any prejudice due to a new magistrate taking over the case at defence stagec.Whether the absence of evidence of a grudge or violence affirms the truthfulness of the complainantd.Whether there was proof of the offence beyond reasonable doubt

7. The duty of this court as a first appellate court is to re-evaluate the evidence on record and come to its own conclusions. This is in accord with the principles laid down in Okeno v Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 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 (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the junction 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 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, see (Peters V Sunday Post 1978) E.A. 424. ”

8. The offence of defilement exists when the following ingredients are proved See BKM v Rep [2020] eKLR:“Whether there was penetration of the complainant’s genitalia, second is whether the complainant is a child, and finally whether the penetration was by the appellant”

9. The above ingredients are challenge in the issues raised above which I now examine

Whether the evidence of the minor without corroboration or compliance with section 124 Evidence Act was sufficient to convict 10. The appellant complains that the complainant was the only eye witness and there was insufficient medical evidence to corroborate it, as PW4, Dr Maingi testified that other than the hymen being freshly torn due, in his opinion, to forceful penetration, there were other causes that can result in torn hymen. This was consistent with the holding in PKW v R [2012] eKLR where the court stated that there are girls born without a hymen, others tear it during insertion of tampons, vigorous physical sport, masturbation and so on.

11. As for the complainant the appellant urges that her evidence was not only not corroborated, but that the court failed to comply with Section 124 of the Evidence Act, which provides:“124. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth” (Emphasis added)

12. A proper reading of the whole of Section 124 of the Evidence Act, shows that corroboration is required of evidence by minors. However, it is clear that corroboration is not mandatory in sexual offences as long as the witness was truthful and reasons are recorded. In the case of J.W.A. v Republic [2014] eKLR, the Court of Appeal observed:-“We note that the appellant was charged with a sexual offence and the proviso to Section 124 of the Evidence Act, clearly states that corroboration is not mandatory. The trial court having conducted a voire dire examination of PW1 and being satisfied that the complainant was a truthful witness, we see no error in law on the part of the High Court in concurring with the findings of the trial magistrate.”In Mohamed v Republic [2006] 2 KLR 138 a similar position was taken where the court stated:-“It is now settled that the courts shall no longer be hamstrung by requirements of corroboration when the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”

13. Section 124 is an exception to the rule for corroboration of evidence of children which is based undoubtedly on the good sense and principle of the best interests of the child and the usual occurrence of sexual offences in circumstances where there may be no witness other than the victim. Nevertheless, such evidence must in the interest of the fair trial of accused persons be used sparingly and only where the circumstances fit the situation contemplated in the law that there is no other evidence available but a sexual offence crime should not go unpunished for lack of corroboration of the victim sole evidence

14. In this case, there was nothing placed on record by the first trial magistrate to indicate that the trial court found PW1 to be truthful or had satisfied the court that she was telling the truth. After conducting a voir dire examination of PW1, the then learned magistrate recorded that :“I am satisfied the witness understands the meaning of telling the truth. she is intelligent enough to understand the consequences of telling lies …..”Whilst this was sufficient to enable the trial court to determine whether or not the child could give evidence and the nature of the evidence she may give, there is no record as to whether having given the evidence the trial magistrate satisfied herself that the child is truthful.

15. Indeed, the latter trial magistrate when writing her judgment recognized this problem when she noted that the only eyewitness was PW1 and then stated:“The question is whether PW1 has convinced me she was defiled and accused was the culprit. In answering this question, I acknowledge prosecution’s case proceeded before the Hon Opakasi (RM) and therefore I did not have the benefit of observing PW1s demeanour”

16. Instead of completing that train of thought, she then formed an opinion that from the proceedings she could tell that PW1, 2, 3, DW2 and the accused had a familial relationship. That PW1 knew the accused as her uncle or “small father”. She sorted out the issue of truthfulness of PW1 by stating she had not discerned any family dispute.

17. In my view it is insufficient for a trial magistrate taking over a case in which the prosecution evidence has been completed, and the only evidence is that of a child, and where there is no record by the prior trial magistrate as to the truthfulness of the child’s evidence, to take over the case without any record as to the truthfulness of the child’s evidence.

18. The incoming magistrate in these circumstances has nothing to go by insofar as the truthfulness of the child’s evidence. Here of course there was the evidence of the doctor to show that there was penetration. However there is no evidence to show the identity of the perpetrator other than the evidence of the child, and the truthfulness of the child is not indicated, which leaves the court in the dilemma found buy the succeeding trial magistrate.

19. The situation is complicated by the fact that in this case, the child’s evidence was unsworn. The record shows that the first trial magistrate did find after the voir dire as follows:“I am satisfied the witness understands the meaning of telling the truth. She is intelligent enough to understand the consequences of telling lies. She also understands the meaning of taking an Oath. She will therefore give sworn testimony”

20. The record shows that trial magistrate then immediately allowed examination in chief of PW1, the child. There is no record of the child being sworn. Having found that the child should give sworn testimony, or that she was affirmed. It was the duty of the court to ensure compliance with Section 151 of the Criminal Procedure Code which provides that:“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.”As for affirmation, Section 12 of the Oaths and Statutory Declarations Act Cap 15 entitles magistrates to take affirmations as well as oaths. The section provides:“A Magistrate the Registrar of the High Court, a Deputy Registrar, a Deputy Registrar of the Environment and Land Court and a Deputy Registrar of the Employment and Labour Relations Court may administer any oath or affirmation or take any affidavit or statutory declaration (voluntarily made and subscribed in accordance with the provisions of Part III) which might lawfully be administered or taken by a commissioner for oaths appointed under Part II”

21. In this case, there is no record that the first trial magistrate placed the child under oath, after finding she was fit to give sworn evidence. The effect is that PW1 did not give sworn testimony though she was cross examined.

22. What is to be made of this unsworn evidence?

23. In Mwangi v Republic [2006] 2 KLR 94, the Court of Appeal declared a trial a nullity where it was unable to find that the witnesses had been sworn, and ordered a retrial. The court stated:“The usual practice of all courts in Kenya is, of course, to show in the record that a witness has taken oath before us. There is no way in which we can determine one way or the other, that the witnesses were or were not sworn before they gave evidence. Most likely, they took the oath before giving evidence. But there is also the possibility that they might not have taken oath and if that is the position, it would mean that the appellant was convicted on evidence which was not sworn. That would be in violation of section 151 of the Criminal Procedure Code and other provisions we have set out herein. That, in our view, cannot be a matter curable under section 382 of the Criminal Procedure Code. To be convicted and sentenced to death on evidence which is not sworn must, of necessity, be prejudicial to an accused person. In the event, we are satisfied that the trial of the appellant was a nullity because we are unable to exclude the probability of his having been convicted on unsworn evidence. It does not matter that the issue is being raised for the first time in this appeal. If a trial was a nullity, then it does not matter at what stage that issue is raised.”

24. Years before, in May v Republic [1979] eKLR, the Court of Appeal stated that an unsworn statement was strictly not evidence and the rules of evidence could not be applied to it. It was said to be of no probative value, but could be considered in relation to the whole of the evidence. Its potential was said to be persuasive rather than evidential, and for it to be of any value it must be supported by the other evidence recorded in the case.

25. In Oloo v R (2009) KLR, the Court of Appeal further held that:“In our view, corroboration of evidence of a child of tender years is only necessary where a child gives unsworn evidence. (See Johnson Muiruri v Republic(1983) KLR)…..….in law the evidence of a child given on oath after voire dire examination requires no corroboration in law but the court must warn itself that it should in practice not base a conviction on it without looking and finding corroboration of it”. (Emphasis supplied)

26. I have further noted that PW2 was also not recorded as having been sworn. On noting this, I carefully perused the original handwritten proceedings and have confirmed that there is no record that PW1 or PW2 did take oath as by law required. PW2, Maureen Muthama, is the lady who looks after the complainant, washes her clothes and to whom the complainant, crying, first disclosed the incident the day after it occurred. It was PW2 and her husband who told PW3 of the incident

27. PW3, PW4 and PW5 clearly took oath, according to the record. Thus, to the extent that pW1 and PW2 did not take oath, their testimony is, in the words of the Court of Appeal in May’s case, strictly not evidence.

28. To the extent that there was a failure to strictly comply with Section 124 Evidence Act and Section 151 of the Criminal Procedure Code on the taking of oath by witnesses, it was impossible for the truthfulness of PW1 and PW2 to be ascertained. Their evidence is not evidence in law.

Whether the appellant suffered any prejudice due to a new magistrate taking over the case at defence stage 29. It is clear from the foregoing, that the taking over of the new magistrate from the first trial magistrate merely compounded the prejudice occasioned to the accused. The object of Section 200 of the Criminal Procedure Code is twofold: that when a new magistrate is taking over a case he must, on the one hand, ensure that the administration of justice is effected as expeditiously as possible, whilst on the other hand, giving full protection to the accused person.

30. Section 200 of the Criminal Procedure Code provides as follows:“200. (1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—(a)deliver a judgment that has been written and signed but not delivered by his predecessor; or(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.(2)Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.(4)Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.”

31. I think it is incumbent and good practice for a magistrate or Judge taking over a matter to inquire into the record to see if any obvious errors of procedure are evident before deciding to proceed from whether the matter ended. If the incoming trial magistrate had done so, she would have noticed that the complainant was not sworn though required to give sworn evidence, and recalled her to take oath in order to safeguard the propriety and sanctity of the proceedings.

32. In Ndegwa v Republic (1985) KLR 534 Justices Madan, Kneller and Nyarangi; JJ.A as they then were held as follows regarding the invocation of section 200 CPC:“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where the exigencies of the circumstances, not only are likely but will defeat the end of justice, if a succeeding magistrate does not , or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial.Section 200 is not to be invoked where, as seemingly in the instant case, such a half-heard trial is a short one, it could be conveniently started de novo because the prosecution witnesses are still available locally, and passage of time when the trial first commenced and another magistrate taking over almost midway, is so short so as not to cause or produce any accountable loss of memory on their part, whether actual, presumed or pretended, to the prejudice of either the prosecution or the accused.No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration.It could be also argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanour and credibility of witnesses. It has been and will be so in the other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully “observed” the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanor of all the witnesses in the case. A fatal vacuum in this case, in our opinion.The succeeding magistrate was as helpful as he could possible make himself. He acted in an attempt to dispatch justice speedily. We appreciate his motive very much. The sweetness of justice lies in the swift conclusion of litigation.For the reasons we have stated, in our view the trial was unsatisfactory.”

33. I would venture to say that this case, having reached the stage of defence hearing, it was unsafe for the incoming trial magistrate to invoke section 200 and to take over the case from the stage at which it had reached.

34. There are two issues which remain for determination: Whether the absence of evidence of a grudge or violence affirms the truthfulness of the complainant

Whether there was proof of the offence beyond reasonable doubt

However, given my findings above regarding the propriety of the proceedings in light of the failure to swear the complainant and PW2, I think it is merely academic or moot to proceed with considering these issues.

Disposition 35. Given all the forgoing, the appeal succeeds on the grounds that the convictions were premised on the unsworn evidence of the complainant and PW2.

36. Accordingly, the conviction and sentence are hereby set aside and a retrial is hereby ordered.

37. The accused is to be held at the appropriate police station pending re-trial.

38. Orders accordingly.

DELIVERED AT NAIVASHA ON THIS 16TH DAY OF JUNE, 2022. R MWONGOJUDGEDelivered in the presence of:Meshack Kiria Munyua - Appellant present in person at Naivasha Maximum PrisonMs Maingi for the RespondentQuinter Ogutu - Court Assistant