[2009] KEHC 4251 (KLR)

IN THE COURT OF APPEAL OF KENYA

AT NAKURU

Criminal Appeal 208 of 2008

YUSUF SABWANI OPICHO ....................... APPELLANT

AND

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

(Appeal from a judgment of the High Court of Kenya

Nakuru (Mugo, J) dated 24th July, 2008

In

H.C. C. C. No. 208 of 2007)

************************

JUDGMENT OF THE COURT

The appeal before us rests on two, out of five, grounds laid out in the memorandum of appeal

filed belatedly on 28th September, 2009. Three of the grounds were abandoned at the hearing

of the appeal by counsel for the appellant, Mr. Githui, who urged the following grounds:-

“1. THAT the learned judge erred in law and in fact in failing to appreciate the nature and

meaning of voire dire proceedings.

2. THAT the learned judge erred in law and in fact in failing to understand the nature of

evidence required in corroboration.”

Those are issues of law which are properly raised on a second and final appeal in accordance

with section 361 of the Criminal Procedure Code. For reasons which will shortly become

apparent, we shall desist from analyzing the facts and circumstances of the case, in view of

the final orders we intend to make.

The appellant, Yusuf Sabwami Opicho, was charged before Molo Senior Principal

Magistrate’s Court with the offence of grievous harm contrary to section 234 of the Penal

Code. It was alleged in the charge sheet that the appellant, on 25th day of May, 2007 at

Eastleigh Estate Elburgon, in Molo District, jointly with others not before court, unlawfully

did grievous harm to Faris Wanjala . Faris Wanjala was the appellant’s four-year old son

with his estranged wife, Prisca Adhiambo (PW3). The circumstances of the offence amounts

to what is generally referred to as child abuse. Upon his trial in which the son, his mother,

his grandfather, a clinical officer and the investigating officer testified, the appellant was

convicted and sentenced to serve 10 years in prison. His first appeal to the superior court

(Mugo, J) was not only dismissed but the sentence was enhanced to 20 years imprisonment.

In his first ground of appeal, the appellant challenges the manner in which the evidence of the

child, Faris Wanjala was recorded, admitted and considered by both courts below. In his

submissions, Mr. Githui referred us to the record of the trial Magistrate (Oseko, SPM) and

pointed out that there was no examination of the child as to his level of intelligence and

understanding of an oath before he was allowed to testify. All the record shows is the result

of some examination of the minor which showed that he was intelligent. Nothing was said

about his understanding of the nature of an oath or the duty of speaking the truth. In that

event, submitted Mr. Githui, the trial was dealt a fatal blow. He also referred us to the record

of the superior court where the same issue was raised but was given short shrift, the learned

Judge stating:-

“It is trite law that age alone can never form the determining factor in judging the

competence of a witness.”

The learned Judge was of the view that the trial Magistrate’s statement that she had

examined the child and found him intelligent was sufficient compliance with procedure .

We think with respect, that there is merit in the appellant’s complaint and we must restate

the law and procedure relating to reception of evidence of children of tender years. There is

nothing novel in what we are about to say as this Court has pronounced itself on the matter

many times before. The starting point is section 19 of the Oaths and Statutory Declarations

Act (Cap 15), Laws of Kenya which provides as follows:-

“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, shall be deemed to be a

deposition within the meaning of that section.”

The construction of that section is now well grounded in many previous decisions and it is

surprising that trial courts still get it wrong. We need only refer to four of them: InNyasani

S/o Gichana UR [1958] EA 190, the predecessor of this Court stated:-

“It is clearly the duty of the court under that section to ascertain, first whether a child

tendered as a witness understands the nature of an oath, and if the finding of this question is

in the negative, to satisfy itself that the child is possessed of sufficient intelligence to justify

the reception of the evidence and understands the duty of speaking the truth.”

The following year inKibangeny Arap Kolil v. R [1959] EA 92, the court stated:

“In the present case, the learned trial judge, so far as appears from the record, made no such

investigation before affirming either of the two boys witnesses. Such an investigation need

not be a lengthy one, but it must be made and, when made, the trial judge ought to record it.

The investigation should precede the swearing and the evidence and should be directed to the

particular question whether the child understands the nature of an oath rather than to the

question of his general intelligence.”

The procedure for investigation, or preliminary examination of a witness, otherwise referred

to in old French and Anglo-Norman as the “voire dire” or “voir dire” is taken in two steps as

summarized in Kinyua v. Republic [2002] 1 KLR 256:-

“(a)The court should first ascertain whether the child understands the nature of an oath. An

investigation to this effect must be done by the court immediately the child witness appears in

court. The investigation need not be a long one but it has to be done and it has to be directed

to the particular question whether the child understands the nature of an oath. If upon

investigation it appears that the child understands the nature of the oath, then the court

proceeds to swear or affirm the child and to take his or her evidence.

(b) If the child does not understand the nature of the oath, he or she is not necessarily

disqualified from giving evidence . The court may still receive the evidence if it is satisfied,

upon investigation, that the young person is possessed of sufficient intelligence and

understands the duty of speaking the truth. This investigation must be done and when done, it

must appear on record. Where the court is so satisfied then the court will proceed to record

unsworn evidence from the child witness.”

Further in John Muiruri v. R [1983] KLR 445this Court re-emphasized, inter alia, that:-

“2. It is important to set out the questions and answers when deciding whether a child of

tender years understands the nature of an oath so that the appellate court is able to decide

whether this important matter was rightly decided.

3. When dealing with the taking of an oath by a child of tender years, the inquiry as to the

child’s ability to understand the solemnity of the oath and the nature of it must be recorded,

so that the cause the court took is clearly understood.

6. The judge is under a duty to record the terms in which he was persuaded and satisfied

that the child understood the nature of oath. The failure to do so is fatal to the conviction.

9. The correct procedure for the court to follow is to record the examination of the child

witness as to the sufficiency of her intelligence to satisfy the reception of evidence and

understanding of the duty to tell the truth.”

What happened in the case before us? Faris Wanjala was the second prosecution witness and

the prosecutor promptly drew the attention of the court to his age stating:

“My next witness is a 4 years (sic) old juvenile. I request the court to examine him.”

There is nothing in the record to show the manner in which the child was examined, or the

questions asked of the child and his response thereto. The learned trial Magistrate simply

recorded:

“I have examined the child. He is intelligent, speaks well though s h y . He is

understandable and eloquent. He will testify without giving oath but through the court

clerk.”

Clearly that was flagrant breach of the requirements of section 19 of the Oaths and Statutory

Declarations Act and the elaborate procedure laid by this Court in the authorities cited above

for compliance with the section. The child was a vital witness in the trial and the failure by

the court to comply with the procedure in the reception of his evidence vitiates that evidence.

The learned Senior State Counsel, Mr. Njogu, readily conceded the appeal on that issue alone,

since the learned Magistrate only tested the intelligence of the child and not his duty to tell the

truth. He, however, sought an order for retrial since the prosecution had nothing to do with

the omission. In his view there was substantial evidence to sustain a conviction of the

appellant and he prayed for an opportunity to mount a fresh prosecution. That view, was, of

course, rejected by Mr. Githui, who argued strongly in his second ground of appeal that even

if the evidence of the chid was accepted, there was no corroboration as required under section

124of the Evidence Act.

As we stated earlier, we have no intention of analyzing the evidence on record and will not

therefore discuss the submission by Mr. Githui whether the evidence of the child was

corroborated. We must first discuss whether, in view of the transgression of procedure

evident in the trial, the appellant ought to be retried before another court. If so, any analysis

of the evidence on record may well prejudice that retrial . Should we order one?

“In general a retrial will be ordered only when the original trial was illegal or defective; it

will not be ordered where the conviction is set aside because of insufficiency of evidence or

for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial;

even where a conviction is vitiated by a mistake of the trial court for which the prosecution

is not to blame, it does not necessarily follow that a retrial should be ordered; each case

must depend on its own facts and circumstances and an order for retrial should only be

made where the interests of justice require it;”

That was stated inFatehali Manji v. The Republic [1966] EA 343. In many other decisions

of this Court it has been held that although some factors may be considered, such as

illegalities or defects in the original trial; the length of time elapsed since the arrest and

arraignment of the appellant; whether mistakes leading to the quashing of the conviction

were entirely the prosecution’s making or not; whether on a proper consideration of the

admissible or potentially admissible evidence, a conviction might result from a retrial; at the

end of the day, each case must depend on its own particular facts and circumstances and an

order for retrial should only be made where the interests of justice require it. See Muiruri

v. Republic [2003] KLR 552, Mwangi v. Republic [1983] KLR 522, and Bernard Lolimo

Ekimat v. Republic, Criminal Appeal No. 151 of 2004 (UR).

The prosecution had nothing to do with the omissions made in this trial. On the contrary it

was the prosecutor who drew the attention of the court to the required procedure but the trial

court was entirely to blame for what followed. The allegations made against the appellant are

extremely serious and of public interest as they relate to child abuse, a phenomenon now

topical on the world stage, and in this country, due to its prevalence. It is in the interests of

justice that the appellant receives a fair trial and if he is to be acquitted or convicted, then it

ought to be seen that it was, in either case, in accordance with the law . We are inclined in all

the circumstances of this case to order a retrial.

In the result we allow the appeal and set aside the conviction of the appellant and the

sentence imposed on him. The appellant shall be retried before a court of competent

jurisdiction other than J. Oseko, SPM. As the appellant has been in custody for over two

years, we direct that the retrial be conducted expeditiously and to this end, the appellant shall

be produced before the Chief magistrate, Nakuru within seven (7) days of this order, for

appropriate directions.

Those shall be our orders.

Dated and delivered at Nakuru this 2nd day of October, 2009.

P.K. TUNOI

………………………

JUDGE OF APPEAL

P.N. WAKI

…………………………

JUDGE OF APPEAL

ALNASHIR VISRAM

,………………………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR