[2019] KECA 523 (KLR)

IN THE COURT OF APPEAL

AT ELDORET

(CORAM: E.M. GITHINJI, H. OKWENGU & J. MOHAMMED, JJ.A)

CRIMINAL APPEAL NO. 185 OF 2018

BETWEEN

RODGERS BOIYO.....................................................APPELLANT

AND

REPUBLIC ...............................................................RESPONDENT

(An appeal from Conviction, Judgment and Order of the High Court of Kenya

at Kitale (H. Ongudi, J.) dated 25th August, 2017

in

H.C. Cr. A. No. 48 OF 2014)

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JUDGMENT OF THE COURT

[1] The appellant was convicted by the Resident Magistrate, Kitale for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to life imprisonment. His appeal to the High Court, Kitale against conviction and sentence was dismissed. This second appeal is based on several grounds.

[2] The particulars of the charge stated in essence that on 14th February 2015 at [Particulars withheld]farm, the appellant caused his genital organ to penetrate the anus of LK (name withheld), a child aged 7 years. The prosecution called five witnesses namely; LK (complainant); DK (PW2), the father of the complainant. Dr. Kakundi Blastus(PW3) (Dr. Kakundi), Michael Samoei (PW4) a village elder and PC Stanley Chepkwonyi (PW5), (PC Stanley)

[3. 1] The evidence of the witnesses was in summary as follows:

On 14th February 2013, at about 4 p.m. the complainant’s mother asked him to go and look after the cow. While looking after the cow at Kaku’s farm, the appellant who was a herds boy employed by one Kibet went to where the complainant was, took him to a ditch formed by a filled up latrine hole, removed his pair of trousers, put a condom and inserted his genital organ in the anal area of the complainant. After the sexual assault, the appellant told the complainant to put his clothes on. The complainant reported to his mother when he returned home.

[3. 2] The mother of the complainant called Michael Samoei, (Samoei), the village elder who went to the home of the complainant’s mother at about 9. 45 p.m. Samoei interviewed the complainant. Thereafter he went to look for the appellant whom he found and interviewed. He then took the appellant to the home of the complainant’s mother.

According to DK, he went to his home at about 7. 30 p.m. and found a large crowd including the appellant who had already been arrested and Samoei. The complainant led the crowd to the scene. The complainant and the appellant were taken to Endebess police station.

[3. 3] On the following day, PC Stanley interviewed the complainant and his father at the police station. He searched the appellant who was in police cells and recovered two used condoms. PC Stanley visited the scene and took photographs. He recovered a used condom at the scene. Dr. Kakundiexamined the complainant on the same day and found a small anal tear. However, the complainant had no external injuries and no spermatozoa was found.

[4] The appellant stated at the trial as follows. On 14th February he was taken by his employer Jane Kemboi to Endebess to look after her cattle. At about 5 p.m., he was instructed to go for lunch and leave the cattle with the children. At about 2 p.m. he went for lunch, leaving the cattle with the children. When he came back he found that the children had let the cattle of his employer and those of a neighbour to eat a neighbour’s tomatoes. He beat the four children. The complainant’s mother came with a panga and started chasing him. He went to the home of his employer and waited. At 5 p.m. his employer came home. The mother of the complainant started quarreling with his employer. The appellant told them to stop quarreling but they did not. At about 7 p.m. the father of the complainant sent for him and when he went to the home of the complainant’s father, he was tied with ropes, beaten and his mobile phone and Shs. 2,500/- taken. He was taken to the police station and later charged with false charges.

[5] The trial magistrate considered the evidence of the complainant and of the rest of the witnesses and made a finding that the appellant had defiled the complainant. The defence of the appellant was considered and rejected. In rejecting the defence the trial magistrate said in part:

“The accused seems to raise the issue of the bile between him and the mother of the complainant. He however opted not to call his employer Jane Kemboi to at least show that was a quarrel due to the accused beating the minor herein as alleged by the accused”.

The appellant’s defence that he went to the father of the complainant’s home at 7. 30 pm was rejected for the reason that, at that time, the appellant had already been arrested and was at the home of the father of the complainant.

[6] The High Court evaluated the evidence and found that the complainant’s evidence was supported by the evidence of Dr. Kakundi; that the complainant led DK, Samoeiand PC Stanley and others to the scene and that the appellant did not raise the issue of assault when he was brought to court.

[7] The appellant relied on two grounds of appeal namely; that the trial judge erred in law by believing that the evidence of the minor was truthful and by failing to consider that the burden of proof was on the prosecution. Later, the first appellant filed supplementary grounds of appeal in which he states that the appellate court failed to appreciate that the age of the complainant was not proved; that penetration was not conclusively proved; that the evidence was un-corroborated and inconsistent; and that the appellant’s defence was not considered alongside the prosecution evidence.

He relied on his hand written submission. Ms. Karanjafor the Director of Public Prosecution filed written submissions opposing the appeal

[8] At the outset, we wish to state that the record of the proceedings does not show that the trial magistrate conducted a voire dire examination of the complainant before receiving his evidence. However, the record of the proceedings has a note by the court thus:

“The minor is apparently a child of tender years and does not seem to understand the nature of an oath. He however, in the court’s opinion, possessed with sufficient knowledge to distinguish lies from the truth, he shall thus give evidence.”

Section 19(1)of theOath and Statutory Provision Act (Cap 15) provides in part:

“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 for the evidence, and understands the duty of speaking the truth…”

Thus, the court is required to satisfy itself first that a child of tender years understands the nature of the oath and if so satisfied, proceed to receive the evidence on oath, and secondly, if the court is not so satisfied, it should then satisfy itself that the child is possessed of sufficient intelligence and in addition, that the child understands the duty of speaking the truth before reception of the unsworn evidence.

The proper procedure for conducting voire examination of a child of tender years was stated by this Court in Johnson Muiruri v Republic [1983] KLR 447.

Further, the law is clear that failure to conduct voire dire examination results in the evidence of the child being excluded from consideration and is fatal to the conviction unless there are other sufficient evidence by itself to sustain the conviction. (See Nyasani s/o Bichana v Republic [1985] EA 190), Kibangeny Arap Kolil v R. [1959] EA 92.

[9] It is apparent from the note made by the trial magistrate that an oral voire dire may have been done. However, that would not be in compliance with the law and an appellate court would not have the means to determine whether the finding of the trial court after the oral voire dire examination was justified. Furthermore, the trial magistrate erred in law when he allowed the child to give evidence on oath after finding that the child did not understand the nature of the oath. Based on that finding the complainant should, as provided in section 19 of the Oaths and Statutory Provisions Act, have given unsworn evidence.

In view of the non compliance with the law on voire dire examination, and the misdirection in law in the manner that the evidence of the complainant was received, the High Court should have totally excluded the evidence of the complainant from consideration.

[10] The High Court did not address its mind to the lack of proper voire examination or to the unlawful reception of the evidence of the complainant on oath when he did not understand the nature of the oath. Had it done so, it may have excluded the evidence of the complainant and then proceeded to find out if, nevertheless, there was other sufficient and credible evidence to sustain the conviction.

[11] The evidence of the appellant was that the case was a fabrication after he had beaten the complainant and two other boys for allowing the cattle to stray into a neighbour’s farm and destroy tomatoes. That defence was given credence by Samoei who testified thus:

“That the minor had left animals which stayed (sic) to another farm and ate tomatoes. That the accused had threatened him; later told him that he would buy a doughnut. He took him to a hole and defiled him to appear him (sic) for letting animals astray. The animals were from different bomas.”

The two courts below irregularly allowed the production of photographic evidence of the scene by PC Stanley who was not a scene of crimes officer. Those photographs were referred to by the witnesses and produced as exhibits contrary to the provisions of section 78(1) of the Evidence Act. PC Stanley was not an officer appointed by the Attorney General and the certificate in the prescribed form was not produced. It seems that these photographs were taken to lend credence to the evidence of the complainant.

There was also evidence from the complainant that the appellant used a condom. Samoeitestified that a condom was recovered in the ditch. PC Stanley also stated that he found a used condom at the scene and on searching the appellant inside the police station, he found two used condoms on the appellant. However, in his evidence in cross-emanation he stated that the two condoms he found were unused.

On his part Dr. Kakundi stated that there was no use of condom. The evidence of PC Stanley that the appellant had in possession of two condoms either used or unused while in police custody appears incredible. Lastly, there was no conclusive evidence of partial or complete penetration of the complainant’s anus. Dr. Kakundi said that there was a small anal tear but did not say whether it was old or recent or what could have caused it.

[12] From the foregoing, we are satisifed that after excluding the evidence of the complainant, there was no credible and sufficient evidence that would have justified a conviction for such a serious offence. When the remaining evidence is considered together with evidence of the appellant, it is clear that the appellant raised reasonable doubt on the credibility of the prosecution case.

[13] For the foregoing reasons, the appeal is allowed, the conviction is quashed and the sentence of life imprisonment set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held.

Dated and delivered at Eldoret this 28th day of June, 2019.

E. M. GITHINJI

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JUDGE OF APPEAL

HANNAH OKWENGU

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JUDGE OF APPEAL

J. MOHAMMED

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JUDGE OF APPEAL I certify that this is a true

copy of the original.

DEPUTY REGISTRAR