Jamlick Gachari Musikiri v Republic

High Court, at Nyeri October 16, 1987

Abdullah J

Criminal Appeal No 120 of 1986

(Appeal from the Resident Magistrate’s Court at Kerugoya,

Muchemi Esq)

Criminal law – sexual offences – defilement – necessity of corroboration of prosecution evidence in cases involving such offences.

Evidence – evidence of a minor – duty of the court to comply with the Oaths and Statutory Declarations Act (cap 15) section 19 before taking such evidence – necessity of corroboration of such evidence – Evidence Act (cap 80) section 124.

Criminal Practice and Procedure - trial within a trial – accused stating he was beaten before making extra-judicial statement - failure to call police officer who recorded statement – accused not given opportunity to testify as to his alleged beating – whether statement properly admitted.

The appellant was originally charged with rape but he was convicted on a substituted charge of defilement contrary to section 145 of the Penal Code (cap 63) and sentenced to 5 years’ imprisonment together with 3 strokes of corporal punishment. He was also convicted and sentenced on a charge of possessing bhang under section 10 of the Dangerous Drugs Act (cap 245).

The case involved a complainant whose age had not been medically assessed and who had given evidence on oath without an inquiry being made as to whether she was intelligent enough to understand the nature of the oath. The trial magistrate, apparently guided by the testimony of the complainant’s mother, found that she was 12 years old.

A vaginal smear examination report made by an unknown person was produced in evidence by a police officer.

The trial magistrate conducted a trial within a trial to determine the admissibility of an extra-judicial statement which the appellant stated was recorded by him after he was beaten. Only a police officer in charge of the report office was called as a witness, after which the magistrate ruled that the statement was admissible because the appellant “did not challenge witness on cross-exam”.

The appellant appealed.

Held:

1. It would have been desirable to seek better evidence as to the age of the complainant, such as medical assessment of her age or birth certificates, before making a finding as to age on the mere say of the complainant’s mother.

2. If the complainant was of the age of 12 years, then the court, before taking her evidence, should have complied with section 19(1) of the Oaths and Statutory Declarations Act (cap 15) in that if the court was of the opinion that the complainant did not understand the nature of an oath, it could receive her evidence, even if not on oath, if it was of the opinion that she was possessed of sufficient intelligence to justify the reception of her evidence and that she understood the duty of telling the truth.

3. The necessity of material corroboration of the evidence of a child of tender years is, under section 124 of the Evidence Act (cap 80), an indispensable condition to a conviction of a person charged with an offence.

4. Moreover, in order for a conviction to be had in a sexual offence, the need for corroboration of the evidence of the prosecution is essential. The corroboration evidence given in this case was not corroboration evidence implicating the appellant.

5. The medical evidence had not been properly adduced as the report produced was not a report under the hand of the Government Analyst under section 77 of the Evidence Act (cap 80) nor had it been shown that the person who made the report could not be called in accordance with section 33 of that Act.

6. The cautionary statement of the appellant had not been properly admitted in evidence as the inspector who had recorded the statement had not adduced evidence at the trial within a trial and the appellant ought to

have been allowed to state when, where and by whom he had been beaten.

7. On the charge of possession of bhang, the trial magistrate was entitled to accept the evidence of the arresting officer, which was not disputed by the appellant.

Appeal against conviction and sentence for defilement allowed, appeal against conviction and sentence for possession of bhang dismissed.

Cases

1. Nyasani s/o Bichana v Republic [1958] EA 190

2. Kibangeny Arap Kolil v Republic [1959] EA 92

3. Oloo s/o Gai v R [1960] EA 86

4. Gabriel s/o Maholi v Republic [1960] EA 159

Statutes

1. Penal Code (cap 63) section 145

2. Dangerous Drugs Act (cap 245) section 10

3. Oaths and Statutory Declarations Act (cap 15) section 19

4. Evidence Act (cap 80) sections 33, 124

Advocates

Mr Mugu for the Republic.

Kamau Ngatia & another v Republic

High Court, at Nyeri September 11, 1987

Abdullah J

Criminal Appeal No 390 of 1986

(Appeals from the Senior Resident Magistrate’s Court at Nyeri,

E B Achieng)

Criminal law – housebreaking – ingredients of the offence – accused entering into open house and stealing property – whether offence of housebreaking committed – Penal Code (cap 63) section 304(1)(a).

Criminal law – handling stolen property – guilty knowledge – whether accused person who claims to be innocent purchaser may be imputed to have had guilty knowledge for having denied possession – Penal Code (cap 63) section 322.

Sentencing – severity of sentence – disparity of sentences – lenient sentence imposed on accused who pleads guilty and co-operates with police - severe sentence imposed on accused who is found guilty after trial for same offence – whether manifest disparity in sentences proper.

The first appellant was convicted of housebreaking and theft from a dwelling house contrary to sections 304(1)(a) and 279(b) of the Penal Code (cap 63) respectively. He was sentenced to concurrent terms of imprisonment for 4 years on each charge and to 4 strokes of corporal punishment on the second charge.

The court found that Stephen, one of the accused persons, had taken a gas cylinder from the house of the complainant while the first appellant was waiting outside, and the two later sold the cylinder to the second appellant. Stephen had pleaded guilty to the same offences and he gave testimony adverse to his co-accused. He also co-operated with the police in investigating the offences. He received concurrent sentences of 12 months’ imprisonment on each charge plus two strokes of corporal punishment on the second charge.

The second appellant was also convicted and sentenced on a charge of handling stolen property.

The appellants appealed.

Held:

1. There was no evidence that the house of the complainant had been broken into as Stephen had found the door open, entered it and stole the property. In these circumstances, the conviction for housebreaking was not correct.

2. A person who pleads guilty and co-operates with the police deserves to be treated with leniency; equally, an accused person has an inherent right to plead not guilty and to require the state to prove the charge.

3. The fact that an accused person has pleaded not guilty and is found guilty after trial should not be considered as a factor to impose a sentence in excess of what ought to be a reasonable and just sentence.

4. The sentence meted out on the first appellant was manifestly disparate in comparison with the sentence meted out on Stephen for the same offence.

5. The fact that a person accused of handling stolen property who claims to have been an innocent purchaser had denied possession of the property may not impute guilty knowledge at the time of acquiring possession.

First Appellant’s sentence reduced to 18 months’ imprisonment and two strokes, Second Appellant’s appeal allowed.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) sections 20(b),(c),(d); 279(b); 322; 304(1)(a)

Advocates

Mr Mahan for the 1st Appellant.

Mr Mugu for the Republic.