J.M V Republic  EKLR
|Criminal Appeal 44 of 1982||15 Apr 1983|
Zakayo Richard Chesoni, Chunilal Bhagwandas Madan, Kenneth D Potter
Court of Appeal at Nairobi
J.M v Republic
J.M v Republic  eKLR
J M v Republic
Court of Appeal, at Nairobi April 15, 1983
Madan, Potter JJA & Chesoni Ag JA
Criminal Appeal No 44 of 1982
Evidence - child’s evidence - unsworn and sworn testimony - children of tender years - meaning of - proper procedure while dealing with child witnesses - corroborating evidence of child witnesses - weight given to - judge’s duty in assessing child’s evidence - failure of court to warn itself - failure to record reasons for finding evidence competent - effect of such omissions.
Sentencing - severity of sentence - appropriate sentence - factors to be taken into consideration - mitigating factors - harsh and excessive sentence - meaning of.
Criminal Practice and Procedure - assessors - summation to - failure to make proper direction to assessors - form of proper directions to assessors.
The appellant was charged with murder contrary to section 203 of the Penal Code (cap 63). The court admitted evidence of two children of tender years at trial. He was convicted and he appealed.
1. Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion , on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received. If the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.
2. It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided.
3. Where a child of tender years gives unsworn evidence, then corroboration of that evidence is an essential requisite. But if a child gives sworn evidence, no corroboration is required but the assessors must be directed that it would be unsafe to convict unless there was corroboration.
4. When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood.
5. A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth.
6. The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to the conviction.
7. The failure by the judge to direct himself and the assessors on the danger of relying on uncorroborated evidence of a child of tender years and the reliability of such evidence was a fatal error and conviction could not stand.
8. Despite the absence of an express statutory provision, it is the duty of the court not only to ascertain the child is intelligent and competent to justify reception of evidence from the child, but it must also ascertain that the child understands the difference between truth and falsehood.
9. The correct procedure for the court to follow is to record the examination of the child witness as to the sufficiency of her intelligence to satisfy the reception of evidence and understanding of the duty to tell the truth.
10. The matter of whether a child is of tender years or not is a matter of the good sense of the court where there is no statutory definition of the phrase. In Kenya there is no statutory definition of the expression “child of tender years” for the purposes of section 19 of the Oaths and Statutory Declarations Act (cap 15).
11. Where there is a prescribed mandatory sentence, in this case death as provided for by section 204 of the Penal Code, the argument that such a sentence is harsh and excessive cannto be upheld. A mandatory sentence can neither be harsh nor excessive.
12. It is improper to make an unfavourable comment or comment at all to the assessors on a permissible right, exercised by the accused (in this case the right to make unsworn testimony).
1. Regina v Campbell The Times, December 10, 1982
2. R v Lal Khan  73 Cr App R 190
3. Oloo s/o Gai v R  EA 86
4. Gabriel s/o Maholi v R  EA p 159
5. Kibangeny Arap Kolil v R  EA 92
6. R v Campbell  2 All ER 272
7. Peter Kirigia Kiune v Republic Criminal Appeal No 77 of 1982 (unreported)
1. Oaths and Statutory Declarations Act (cap 15) section 19
2. Penal Code (cap 63) sections 203, 204
3. Evidence Act (cap 80) section 104
Muli for Appellant
Nebutete for Respondent