[2019] KEHC 6128 (KLR)
The court found that the minor witness (MA) was indeed a vulnerable witness, as she was unable to respond to basic questions or be heard during voire dire examination. While the prosecution proposed the minor's religious teacher as an intermediary, the court determined that a neutral and impartial person,...
Source-derived case information.
- Citation
- [2019] KEHC 6128 (KLR)
- Parties
- Applicant: Republic; Respondent: Agnes Omuyoyi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 32 of 2018
- Procedural Posture
- Criminal Case / Ruling on Application for Vulnerable Witness Intermediary
- Outcome
- Application allowed in part; minor declared a vulnerable witness and to testify through a neutral intermediary (Probation Officer, Nakuru County).
- Judges
- JK Mulwa
- Legal Topics
- Vulnerable Witnesses, Intermediaries, Child Witnesses, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Agnes Omuyoyi
Respondent
Procedural Posture
Criminal Case / Ruling on Application for Vulnerable Witness Intermediary
Legal Issues
- 1 Whether the minor witness (MA) should be declared a vulnerable witness and allowed to testify through an intermediary.
- 2 Whether the proposed intermediary, the minor's religious teacher, is appropriate or a neutral intermediary should be appointed.
Ratio Decidendi
The court found that the minor witness (MA) was indeed a vulnerable witness, as she was unable to respond to basic questions or be heard during voire dire examination. While the prosecution proposed the minor's religious teacher as an intermediary, the court determined that a neutral and impartial person, specifically the Probation Officer of Nakuru County, would be more appropriate to serve as intermediary. This ensures fairness and impartiality in the proceedings, in line with Article 50(7) of the Constitution and relevant case law. The intermediary's role is to facilitate communication between the vulnerable witness and the court, monitor the witness's well-being, and request recesses...
Court Disposition
Application allowed in part; minor declared a vulnerable witness and to testify through a neutral intermediary (Probation Officer, Nakuru County).
Orders
- The minor (MA) is declared a vulnerable witness.
- The minor's testimony shall be taken through an intermediary.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT ATNAKURU
CRIMINAL CASE (MURDER)NO. 32 OF 2018
REPUBLIC..................................PROSECUTOR
-VERSUS-
AGNES OMUYOYI...................RESPONDENT
RULING
The accused is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. He pleaded not guilty, and the prosecution case commenced with two witnesses having testified.
The 3rd witness was a minor stated to be nine (9) years old, upon the court conducting a voire direexamination made a finding that although she understood why she was in court, she could not testify as she could not respond to very basic questions, nor was she loud enough for the court to hear or comprehend whatever she was testifying to.
By an application dated 19th March 2019 the prosecution sought that the minor (MA) be declared a vulnerable witness and be allowed to give her evidence through an intermediary, her religious teacher of her former church, [Particulars withheld].
Article 50(7) of the Constitution provides that
“In the interest of justice a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.”
Through the voire direexamination by the court, there is no doubt that the witness (MA) is a vulnerable witness. I declare her as such.
In the case M.M. -vs- R (2014) e KLR the Court of Appeal rendered that
“The whole object of the proceedings through an intermediary is to achieve fairness in the determination of the rights of all people involved in a trial and to promote the welfare of a child or vulnerable witness.”
For those reasons, and having observed the minor myself, I am satisfied that the minor’s testimony should be taken through an intermediary.
However I am not satisfied of the proposed intermediary, the minor’s alleged religious teacher.
I am of the opinion that such intermediately should be a neutral person, in the person of the Probation Officer, Nakuru County, being an impartial person and on account of his/her expertise and experience in court matters.
The function and role of the intermediary is to, and shall be to convey the substance of any question to the vulnerable witness, inform the court at any time that the vulnerable witness is fatigued or stressed and to request the court for a recess among other roles – See Section 31(7) of the Sexual Offences Act No. 3 of 2006.
It is so ordered.
Dated, delivered and signed at Nakuru this 24th Day of June 2019.
.........................
J.N. MULWA
JUDGE