James Muriuki v Republic

High Court, at Nyeri December 7, 1993

Ang’awa J

Criminal Appeal No 206 of 1993

Evidence – child /Minor – evidence of a child of tender years – how such evidence should be treated – where the Court fails to warn itself before taking such evidence – whether such failure should affect the verdict of the court.

Evidence – identification evidence – where one is arrested more than two days after commission of crime – whether identification parade should be conducted in such instance.

Evidence – expert evidence – whether a doctor should be called to give evidence on P3 form, being the maker – whether a police officer can give evidence on P3 report.

The appellant was charged with offence of defilement of a girl contrary to section 145(1) of the Penal Code. The facts are that on 24th March, 1993 at Kimunye village in Kirinyaga District, of Central Province, had carnal knowledge of R N, [particulars of her full name with a girl under the age of 14 years.

Only 4 witnesses gave the evidence. PW2, the mother of complainant and PW3 the hair dresser were both not present when the offence was committed. PW4, the arresting officer who arrested accused upon identification of accused being pointed out more than 2 days after commission of the alleged crime. He later produced P3 form filled by the doctor.

The trial magistrate asked the complainant the meaning of telling the truth and proceeded to record that the child understands without further warning herself before admitting evidence of a minor.

The defence’s contention was that the presiding magistrate failed to warn herself before admitting the evidence of the child of tender years, therefore the conviction should be quashed.

Held:

PW2, the mother of the child and PW3, a hair dresser, were both not present when the offence was committed.

2. The trial magistrate did not warn herself in admitting the evidence of a minor. The golden words being “this Court warns itself of admitting the evidence of the minor”.

3. Where corroboration is necessary and the trial court has neither directed itself to the need nor has in fact looked for corroboration, the appellate court will not itself consider whether corroboration existed, unless circumstances are such that it is quite clear that there had been no failure of justice.

4. PW4 the arresting officer arrested the accused 2 days after the alleged incident. It was important that identification parade be held but it was not.

5. It was imperative that the makers of P3 form be called to give evidence on their report since a police officer is unsuitable to answer medical questions if raised.

6. The relevant exhibits which are the underpants of both the complainant and the accused and the spit of the accused should have been forwarded through the doctor to the government analyst.

7. It was clear from the evidence that PW2, the mother of the complainant, washed the complainant. This therefore meant that the vital evidence was destroyed.

8. There was a claim by the accused that he was insane, and if this was correct, then he was entitled to plead it at his defence.

Appeal allowed.

Cases

1. Maganga Msigara v Republic [1965] EA 471

2. Maina v Republic [1970] EA 370

3. Thuo v Republic [1988] KLR 763

Statutes

1. Penal Code (cap 63) section 145(1)

2. Evidence Act (cap 80) section 77

3. Criminal Procedure Code (cap 75)

Isaack Muchiri Wanjohi v Republic

High Court, at Nyeri March 17, 1993

Tunoi J

Criminal Appeal No 15 of 1993

(From Original Conviction and Sentence in Criminal Case

No 312 of 1992 by Njuguna Kimani - RM)

Charge – substitution of – where its found that the facts of the major charge constitute a minor offence – whether accused should be convicted of the minor offence though not charged with it - where there are more than one accused persons – whether charge should be reduced for all accused – whether charge is capable of separation.

Evidence – strength of evidence – where complainant in assult case was intoxicated at the time of the offence - strength of the complainant’s evidence.

The appellant and two others were jointly charged with grievous harm contrary to section 234 of the Penal Code in that on 14.4.1990 at Othaya township jointly with others, did grievous harm to the complainant Lawrence Muchori Gicheru.

The complainant, the appellant, his co-accused and other people were drinking, and between 10 – 11 pm a scuffle ensued whereby complainant was pierced in the eye with an umbrella. According to complainant, it was appellant who had the umbrella and therefore pierced him with it. Accused was convicted, while the co-accused’s charge was reduced to assault.

The defence contented that the complainant was too drunk and therefore he was unable to identify who pierced him in the eye.

Held:

1. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.

2. If the learned trial magistrate found that the facts of the major charge constituted a minor offence he ought to have reduced the graver charge for all the accused and not for some because if the charge is subtracted it follows that it is eliminated and obliterated altogether.

3. The violence alleged in the charge was the same as that alleged and proved against all accused persons and was not capable of separation.

All of them could either be found guilty of graver charge or the minor offence and not some to be indicated separately and selectively.

4. There was ample proof that the complainant had consumed a large quantity of beer and was hopelessly drunk at the time of the attack upon himself. He was not sure of the number of the persons who assaulted him and neither could he recall the weapons used to injure him.

Appeal allowed

Cases

Ali Mohammed Hassani Mapanda v Republic [1963] EA 294

Statutes

No statutes referred.