James Muriuki V Republic  EKLR
|Criminal Appeal 206 of 1993||07 Dec 1993|
Mary Atieno Ang'awa
High Court at Nyeri
James Muriuki v Republic
James Muriuki v Republic  eKLR
James Muriuki v Republic
High Court, at Nyeri December 7, 1993
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.
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.
1. Maganga Msigara v Republic  EA 471
2. Maina v Republic  EA 370
3. Thuo v Republic  KLR 763
1. Penal Code (cap 63) section 145(1)
2. Evidence Act (cap 80) section 77
3. Criminal Procedure Code (cap 75)