Jamlick Gachari Musikiri V Republic  EKLR
|Criminal Appeal 120 of 1986||16 Oct 1987|
Fidulhussein Esmailji Abdullah
High Court at Nyeri
Jamlick Gachari Musikiri v Republic
Jamlick Gachari Musikiri v Republic  eKLR
Jamlick Gachari Musikiri v Republic
High Court, at Nyeri October 16, 1987
Criminal Appeal No 120 of 1986
(Appeal from the Resident Magistrate’s Court at Kerugoya,
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.
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.
1. Nyasani s/o Bichana v Republic  EA 190
2. Kibangeny Arap Kolil v Republic  EA 92
3. Oloo s/o Gai v R  EA 86
4. Gabriel s/o Maholi v Republic  EA 159
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
Mr Mugu for the Republic.