Njoki V Republic EKLR
|Criminal Appeal 687 of 1987||02 Dec 1988|
Gideon P Mbito
High Court at Nairobi (Milimani Law Courts)
Njoki v Republic
Njoki v Republic eKLR
Njoki v Republic
High Court at Nairobi
December 2, 1988
Mbito Ag J, Shah CA
Criminal Appeal No 687 of 1987
(Appeal from conviction and sentence of the Resident Magistrate’s Court at Kiambu, R K Mwangi Esq)
Minor – evidence of a minor–– child aged 12 years testifying as a complainant in criminal trial – whether complainant a child of tender years under the Evidence Act (cap 80) section 124 – whether complainant’s evidence requiring corroboration – meaning of child of tender years -Penal Code (cap 63) section 14(1).
The appellant was tried in a magistrate’s court, convicted and sentenced to imprisonment for two and a half years’ with 6 strokes of the cane for committing an unnatural offence contrary to section 162 of the Penal Code (cap 63).
The prosecution evidence involved the testimony of the complainant, a young boy aged 12 years, the evidence of a doctor regarding injuries and spermatozoa in the complainant’s anus and that of the complainant’s brother who testified that he had seen the appellant go in the direction of the complainant on the material day.
The Evidence Act (cap 80) section 124 provided that an accused person shall not be liable to be convicted on the uncorroborated evidence of a child of tender age.
Among the issues that the High Court had to consider on the appellant’s appeal was whether the complainant was a child of tender years whose evidence needed corroboration.
1. Within the meaning of section 124 of the Evidence Act (cap 80), a child of tender years seemed to be a child who is legally immature and incapable of being responsible for his own actions and they include children under the age of eight years who under section 14(1) of the Penal Code (cap 63) are not criminally responsible for any acts or omissions.
2. The Evidence Act (cap 80) section 124 only applied to children under the age of eight years upon whose uncorroborated evidence no conviction could be based.
3. The complainant in this case was aged 12 years. He was therefore not a child of tender years whose evidence required corroboration as a matter of law.
4. However, as the complainant was not over the age of 14 years, his evidence still needed corroboration as a matter of practice and the court had to caution itself of the dangers of convicting on the uncorroborated evidence of such a child before acting on such evidence.
5. The trial magistrate had found the complainant to be an intelligent child who knew why he should speak the truth and allowed him to take an oath. He was a truthful witness and his evidence was safe for basing a conviction even though it was uncorroborated in a material particular.
6. The appellant’s appeal had no merit and his sentence of two and a half years’ imprisonment was not manifestly excessive or harsh in the light of the offence.
No cases referred to.
Concise Oxford Dictionary (1979) Oxford: Oxford University Press
1. Penal Code (cap 63) sections 14(1), 162
2. Children and Young Persons Act (cap 141)
3. Evidence Act (cap 80) section 124
P N Mugo, State Counsel, for the Respondent.