[2023] KEHC 26989 (KLR)

Muriithi v Director of Public Prosecutions (Criminal Appeal E032 of 2023) [2023] KEHC 26989 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26989 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E032 of 2023

TW Cherere, J

December 14, 2023

Between

Nelson Muriithi

Appellant

and

Director Of Public Prosecutions

Respondent

(Being an appeal against judgment, conviction and sentence in Nkubu MCSO No. E004 of 2020 by Hon. S.K.Ngetich (PM) on 02nd March, 2023)

Judgment

Background 1. Nelson Muriithi (Appellant) was charged and convicted for the offence of defilement of contrary to Section 8(1) as read with 8(4) of the Sexual Offences Act No. 3 of 2006 that was committed on 05th October, 2020 against a 16-year-old girl and was sentenced to serve 15 years imprisonment.

2. Appellant has appealed the conviction and sentence on the grounds among others that voire dire examination of complainant was not conducted, penetration was not proved and finally that the prosecution case was based on suspicion.

Analysis and determination 3. This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court, and give due allowance for that (See Okeno v Republic [1972] EA 32).

4. I have considered the appeal in the light of written submissions by the Appellant and oral submission made on behalf of the DPP. The elements constituting the offence of defilement are proof of penetration, the age of the minor and the identity of the assailant. (See C.W.K v Republic [2015] eKLR).

5. Concerning voire dire examination, the purpose of voir dire was explained by the court in Johnson Muiruri v Republic [1983] KLR 445 as follows:“Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.

6. Section 19 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya provides that:19(1)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.

7. “A child of tender years” is described under section 2 of the Children’s Act as“a child under the age of 10 years."Complainant’s age was proved by way of a certificate of birth which reveals that she was born on 17th February, 2004 and was 16 years when the offence was allegedly committed. Not being not a child of tender years, it was not necessary to subject her to voire dire examination.

8. Section 2 of the Act defines penetration to entail: -“partial or complete insertion of a genital organ of a person into the

9. The P3 form revealed that complainant’s hymen was broken and the trial court’s finding the injuries proved penetration was therefore well founded.

Appellant’s culpability 10. Complainant stated that he knew Appellant, a neighbor, as he used to visit their home. It was her evidence that Appellant called her to his house around 3 to 4 pm where he defiled her. She additionally stated that she spent the night with the Appellant where he defiled her again and also the following night after which she was taken to Joys house where she spent the night. On the third night, Appellant defiled her and woke up early the following morning and left her in Joy’s house from where she was rescued.

11. Joyce Mwari stated that complainant was found hiding under the bed in the house of one Ken and that she did not know Appellant. PW4 and PW5 testified that complainant was found in a house identified by one Safina, a neighbour’s to belong to Appellant who was subsequently arrested.

12. In his defence, Appellant stated denied the offence and stated that he did not know Ken from whose house complainant was found.

13. The evidence by Joyce Mwari contradicted the evidence by complainant that she was found in her house. Joyce also denied that Accused had been allocated any house in the tea estate where she was a caretaker and confirmed that the house from where Appellant was found belonged to one Ken. Of interest to note is that the investigators did not find it fit to interrogate the said Ken concerning how complainant found herself in his house where she was defiled.

14. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides that“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”

15. In Donald Majiwa Achilwa and 2 other v R (2009) eKLR the Court stated:“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact ...”

16. In Keter v Republic [2007] 1 EA 135 the court held inter alia:“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”

17. In the instant case, the evidence adduced barely establishes the prosecution case, and the fact of the prosecution withholding a crucial witness, one Ken, in whose house complainant was found leads to the inference that had that witness been called, his evidence might have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). In this case, I find basis for raising such an adverse inference.

18. Consequently, and for the reasons set out hereinabove, I find that the evidence by the victim was doubtful and unsafe to found a conviction. I accordingly find that this appeal has merit. Subsequently, the conviction is quashed and sentence set aside. Unless otherwise lawfully held, it is hereby ordered that Appellant shall be set at liberty forthwith.

DELIVERED AT MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHERERE...................................JUDGEAppearancesAccused - Present in personFor DPP - Ms. Rita