[2004] KEHC 1625 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CRIMINAL APPEAL NO.69 OF 2002 (From Original Conviction an Sentence in Criminal Case No.397 of 2001 of the Senior Principal Magistrate’s Court at Malindi – Joyce Manyasi, Ms. – SPM)

OMAR MUSHAM ISMAEL………………………………….APPELLANT

=V E R S U S=

REPUBLIC…………………………………………………RESPONDENT

J U D G M E N T OF COURT

The appellant was originally charged with the offence of Unnatural Offence contrary to Section 162(b) of the Penal Code. He was convicted and sentenced to 8 years imprisonment with 10 strokes of the cane. He appeals against both the conviction and sentence.

The prosecution case was that on 25. 11. 2000 at 7 p.m. accused went to the home of PW.1, Badi Bwana and sent PW.2, FW to a nearby home to pick his house key from the accused’s wife who was attending a wedding. PW.1 went to the accused’s wife who referred him to one Yusuf as the one having the key. PW.1 returned to the accused with that report whereupon the accused invited him to accompany the accused to the latter’s house. The complainant agreed and did so. The accused then left the complainant outside his said house and entered into it. When he came out he told PW.1, the complainant herein to remove his trousers which the latter did. The accused is then said to have sodomised the complainant outside of that house before he took him again to the verandah of a nearby house where he repeated the sodomy. He then gave the complainant 50/- and warned him not to report the matter to anyone at his home. However, the complainant went home crying and reported the incident to his mother, PW.2 who in turn took PW.1 to PW.3, Mohamed Aweso Hamada who advised her to take the boy PW.1, to hospital. PW.2 took PW.1 to Ngomeni Dispensary where the complainant was medically examined and then refered to Malindi General Hospital. The matter was reported to Malindi Police Station who issued a P3 to PW.1 and on 15. 12. 2001, the complainant was once more examined. The Doctor found that the anal area was painful and bruised and the complainant was passing blood-stained stools. The appellant/accused was then arrested and charged with the alleged offence. The appellant’s defence was alibi. He said he never met the complainant that day since he was away in Malindi Town the whole day up to 7 p.m. when he left for home in company of one Abdirahman Faki and that they arrived back home at 8. 15 p.m., after passing through the mosque. He also said he went to DW.2, Yusuf Maalim’s house where he stayed until 10. 15 p.m. before he went to sleep.

The trial Magistrate having considered the evidence aforestated proceeded to convict.

I have examined the evidence on the record. The evidence of PW.2 FW who is mother to the complainant in the lower court, corroborates the evidence of the complainant in relation to the general procedural facts. She did not physically examine the complainant’s anal area to witness whether or not there was injury or not except she saw that he was standing or walking in pain. She however confirms taking the boy to Ngomeni Clinic the next day and she was there when the Clinical Officer examined the complainant, gave him two injections before recommending for further examination in Malindi Hospital.

PW.3 Mohamed Aweso Hamada also confirmed the facts from the time when the complainant’s mother took the child to the witness. He saw the 50/- received by the complainant to discourage him from reporting the incident. He confirmed seeing the complainant crying and in pain. He examined the child’s anal area the next day confirmed the injury around the area. He accompanied the complainant to Ngomeni Police Post where the Officers were not co-operative before he was taken to the Medical Clinic there. He took the complainant to Malindi Hospital and was there when the child was examined.

PW.4 was the subordinate staff who was in attendance in Ngomeni Clinic when PW.1 was taken there. In the absence of the Community Nurse, he attended to the complainant before recommending him to Malindi Police Station. He examined the complainant and confirmed physical injury around the anal area.

Dr. Anisa, PW.6, is the Medical Doctor who produced the P3 filled by Dr. Mureithi who at Malindi Hospital examined the complainant three days after the incident and filled the P3. He read and interpreted the P3 at court due to the absence of Dr. Mureithi. He confirmed that Dr. Mureithi had noticed anal injury with blood stains on the passing stool. He produced the P3 because Dr. Mureithi would not be availed without heavy cost and delay.

As can be seen therefore the evidence in this case was coordinated and corroborated the complainant’s story very well. The unfortunate thing is that the child was at the time of giving evidence only 11 years old. This is the age termed ‘tender years’ in legal circles. It is trite law that when a court is about to take evidence from such a young child it must follow a certain course to establish first that the child is intelligent enough to give evidence and that the court may rely on the child’s evidence and whether the child understands the nature and purpose of giving evidence on oath. To establish these facts the court should put specific simple questions to the child, recording them or their relevant answers and at the end of such process make a decision, again on the record, as to whether the child is intelligent enough to give the evidence either on oath or not on oath. In this case, the trial Magistrate failed to take the special course aforementioned. A few relevant questions she asked were asked after the child was already sworn. I shall therefore assume that in its absence upon the record, the trial Magistrate failed to follow the procedure laid down and required to be followed in such cases. In this case without the said procedure having been followed I cannot say the complainant understood the meaning, nature and purpose of the oath that the trial court administered upon him. As laid down in the case ofJoseph Opondo Onago –v- R., in Mombasa Court of Appeal Criminal Appeal No.91 of 1999, where the trial court fails to carry out the two relevant tests aforementioned the conviction cannot be left to stand. The legal requirement stated is so forceful that even if the trial court carried out the tests without recording the process, the conviction will not still be left to stand. Upon this ground only therefore I will allow this appeal, despite the fact that the evidence in the case would otherwise appear to be water-tight. As touches the issue of corroboration, I note, as earlier mentioned, that there is adequate corroboration of PW.1’s evidence in several material particulars which have pointed out specifically earlier. I only have to point out that, as held in the Court of Appeal Case No.104 of 2000 BERNAD KEBIBA v REPUBLIC, the trial Court, where it forms an opinion that there is need for corroboration it must say so expressly in the judgment. The court must then look for such corroboration from the evidence and if it finds it, it must set it out expressly in its judgment. It is not enough to merely say that corroboration is found in the evidence of certain witness or witnesses. In this case the trial court without doubt looked for corroboration and found it in the evidence of PW.2, PW.3, PW.4 and PW.5. She however, as required above, failed to point out expressly to the actual piece of evidence in which she found the corroboration. She should have done so. This appeal could have succeeded on this ground as well.

The upshot of this canvassing is that the conviction is hereby quashed and the sentence set aside. The appellant is set at liberty forthwith unless lawfully held in prison. It is so ordered.

Dated and delivered at Mombasa this 11th day of September, 2002.

D. A. ONYANCHA

J U D G E

Right of Appeal explained.

J U D G E