[2020] KEHC 9073 (KLR)
The High Court found that the trial court erred by allowing two child witnesses of tender years (aged 8 and 9) to give evidence on oath without conducting a voire dire examination as required by Section 19 of the Oaths and Statutory Declarations Act. This omission constituted a fundamental irregularity likely to...
Source-derived case information.
- Citation
- [2020] KEHC 9073 (KLR)
- Parties
- Applicant: Office of Director of Public Prosecutions, Siaya County; Respondent: Collins Oyoo Owuor
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 84 ‘B’ of 2019
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Interlocutory Order
- Outcome
- Application for revision allowed. Proceedings quashed. Fresh trial ordered.
- Judges
- RE Aburili
- Legal Topics
- Criminal Trial Irregularities, Evidence of Children, Voire Dire Examination, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Office of Director of Public Prosecutions, Siaya County
Applicant
Collins Oyoo Owuor
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Interlocutory Order
Legal Issues
- 1 Whether the failure to conduct voire dire examination on child witnesses of tender years vitiated the trial.
- 2 Whether the trial court's refusal to grant an adjournment to the prosecution was proper.
Ratio Decidendi
The High Court found that the trial court erred by allowing two child witnesses of tender years (aged 8 and 9) to give evidence on oath without conducting a voire dire examination as required by Section 19 of the Oaths and Statutory Declarations Act. This omission constituted a fundamental irregularity likely to vitiate the entire trial. The court further noted the absence of a record indicating the language used by the witnesses. Exercising its supervisory jurisdiction, the High Court quashed the proceedings before the trial magistrate and ordered a fresh trial before a different magistrate at the same station, holding that compliance with statutory requirements for child witnesses is...
Court Disposition
Application for revision allowed. Proceedings quashed. Fresh trial ordered.
Orders
- Proceedings in Bondo PM Cr. Case No. 334/2019 before Hon. E.N. Wasike SRM are quashed.
- A fresh trial to be conducted before another Magistrate of competent jurisdiction at Bondo Law Courts.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
HC. CR. REV. NO. 84 ‘B’ OF 2019
(CORAM: R. E. ABURILI - J.)
OFFICE OF DIRECTOR OF PUBLIC PROSECUTIONS, SIAYA COUNTY.....APPLICANT
VERSUS
COLLINS OYOO OWUOR.....................................................................................RESPONDENT
(Being an application for Revision vide Criminal Case No. 334 of 2019 of PM’s Court
at BONDO Law Court dated 4. 11. 2019)
RULING
1. I have considered the request by the Prosecution vide letter dated 6/11/2019 seeking to revise ruling dated 4/11/2019 in Cr. 334/2019 R vs Collins Oyoo Owuor.
2. I observe that the ruling is in respect of refusal to grant the Prosecution an adjournment to call the last witness who was said to be engaged in invigilation of KCSE examination.
3. In his ruling, the trial court stated that since the matter was initiated in June 2019, the Complainant had never shown up in Count II.
4. The offence is that of kidnapping of a child R.R.O (full name withheld) and D.J.O. [full name withheld] seeking to dishonestly receive money from his father and in count II, the same charge with a different complainant.
5. However, Complainants in both Counts are minors and they gave evidence on oath as PW1 and PW2. The 1st complainant is aged 8 years whereas the 2nd Complainant D.J.O is 9 years. However, I observe that the two complainants gave evidence on oath without being subjected to voire dire examination. They are children of tender years. There is even nothing on record to show that they were giving evidence as minors. They were simply sworn to testify. It is irregular to take evidence of such young children without complying with Section 19 of the Oaths and Statutory Declaration Act.
6. I find the irregularity is likely to vitiate the trial as the law commands that voire dire examination on such children be undertaken to determine whether they understand the nature of an oath and whether they understand what telling the truth is.
7. Furthermore, the trial record does not show the language used by witnesses in giving evidence.
8. For the above reason, I find the request by the Prosecution merited, although on different grounds.
9. I exercise supervisory jurisdiction and quash the proceedings conducted before Hon. E.N. Wasike SRM in Bondo PM Cr. Case No. 334/2019 owing to their irregularity and order for a fresh trial to be conducted before another Magistrate of competent jurisdiction in the same station. The trial court record to be resubmitted to Bondo Law Courts with a certified copy of this Ruling and Order for implementation.
10. Orders accordingly.
Dated, Signed and Delivered at SIAYA this 27th Day of January 2020.
R.E. ABURILI
JUDGE