7.The Appellant filed his submissions on 7th February 2021. He has submitted that the victim is a minor; that there was penetration of the victim’s genital organs and that it is the Appellant who caused the alleged penetration to the minor.
8.The Appellant submitted that the evidence of the complainant and her mother about what happened ought to have been taken with caution and should not have been a basis for conviction. He submitted that there was no medical evidence to support penetration; that absence of hymen and vaginal discharge are not conclusive evidence of penetration. He cited P. K. W v. Republic  eKLR to point out that absence of hymen is not proof of penetration and that other factors can cause rapture of hymen. He submitted that there are other causes, including infections, that can result in vaginal discharge.
9.His submission is that the medical findings of the broken hymen and the presence of vaginal discharge was not conclusive prove that there was penetration. He has submitted that the evidence in this case does not conclusively prove penetration beyond reasonable doubt.
10.He submitted that the voir dire examination was not properly conducted and that the complainant was asked general questions that did not include whether she knows the meaning and purpose of an oath. The Appellant urged this court to find that the trial court did not appreciate the purpose of voir dire examination and that the questions put to the minor were not geared towards ascertaining the minor’s ability to appreciate telling the truth and the nature of an oath. He cited Joseph Opondo Onago v Republic  eKLR to support his submissions on this point.
11.He also cited other authorities on this issue which I have considered. He urges that this court to find that the trial magistrate failed to properly conduct a voir dire examination on the minor and therefore her evidence was not properly received and that the evidence adduced did not prove the case against the Appellant beyond reasonable doubt.
15.Am sitting on appeal as the first appellate court. I am required to consider and evaluate the evidence afresh with a view to arriving at an independent conclusion. Allowance is given that I did not observe the witnesses testifying and therefore cannot comment on their demeanour.
16.I have read the entire record of the lower court. I have noted that four (4) witnesses have testified in support of the prosecution case. The Appellant was known to the family of SNM (PW1), the complainant. He had worked as a herdsboy for them before this incident. On 19th November 2014, PW1 and her mother, EKM (PW2) were giving water to their goats. The Appellant was also present. PW2 left her daughter at the scene.
17.It is the evidence of PW1 that the Appellant took her to his hut and defiled her. He threatened to beat her if she told anyone about it. PW1 went home and told her mother. PW2 asked the Appellant about it but he denied and left. PW2 went to report to the police who advised her to take her daughter to hospital. Ann Kinyua (PW3), a Clinical Officer stations at Bissil Health Centre received PW1 on the same day and examined her. Her findings are that the complainant had a vaginal discharge and that her hymen was broken. There was no evidence of spermatozoa. According to PW3, the complainant told her that it was not the first time for the Appellant to defile her.
18.It is worth noting that neither the complainant nor her mother testified to prior defilements. It is also worth noting that PW3 did not testify to finding any injuries on the complainant’s genitalia. She only testified to finding the hymen broken without qualifying as to whether there were fresh injuries.
19.I have considered the grounds of appeal and the submissions. In my view the central issue arising from this appeal is whether the offence of defilement was proved beyond reasonable doubt. The complainant was born on 4th July 2003 according to the copy of the Birth Certificate marked Ex. 1. At the time the offence is said to have been committed on 19th November, 2014, she was aged 11 years. Section 19 (1) of the Oaths and Statutory Declarations Act, Cap. 15 Laws of Kenya requires courts to subject children of tender years to voir dire examination to determine if the child understands the nature an oath, or is possessed of sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth.
20.The above section provides as follows:
21.The record of the trial court in the proceedings of 18th February, 2016 show that the trial court examined the minor. It is worth reproducing the record of proceedings for that day. They show as follows:
22.It is clear to this court that the trial magistrate misapprehended the legal requirements for conducting voir dire examination. This is obvious from the decision he arrived at after putting questions to the complainant. In Criminal Appeal No. 91 of 1999 Joseph Opondo v. Republic, reported in 2000 eKLR, the Court of Appeal dealt with this issue as follows:
23.As stated above the trial magistrate did not follow this procedure. From the reproduced record of proceedings above, it is clear that the trial court did not establish whether the witness understands the meaning, nature and purpose of an oath upon which the trial magistrate could have based his decision to call the witness to be sworn in to testify. Further, the trial magistrate did not determine whether the witness was possessed of sufficient intelligence to justify reception of his or her evidence though not upon oath.
24.From the record of the trial court, the court seemed to have decided that the witness had satisfied the first stage of this examination given that he decided that the witness can give sworn evidence. However, that is not the finding the trial court arrived at as shown on the cited record of proceedings. This leads me to the conclusion that the evidence of the complainant was improperly received.
25.The Court of Appeal in the Joseph Opondo case above stated as follows:
26.I agree with the reasoning of the Court of Appeal in the above case that, similarly in this case, the trial magistrate did not follow the sequence as set out in that case and this was an error on his part. Is this error of the trial court fatal to the case?
27.The problem I have with the evidence is that the complainant did not have fresh injuries in her genitals given that she was examined hours on the same day after the alleged defilement. The complainant did not testify that the Appellant had defiled her on other occasions other than 19th November 2014. Her mother did not mention this either. But PW3 claims to have been told by the complainant that the Appellant had defiled her before. This evidence leaves some doubts in my mind as to whether the complainant was defiled on that day. I do not rule out that this may have happened, but a criminal case must be proved beyond reasonable doubt. Any iota of doubt must go to the benefit of the Appellant.
28.With the evidence raising some doubts in my mind and the manner the trial court conducted the voir dire examination leading to improperly receiving the evidence of the complainant, it is my considered view that it was unsafe to convict the Appellant. A sexual offence involving a minor is a serious matter given that the law protects children by ensuring that their best interests are considered in all matters concerning children. But to convict an accused person in a matter that has not been proved beyond reasonable doubt is an affront to the rule of law.
29.I have considered the submissions of the Respondent that the sustainability or otherwise of the prosecution’s case solely depended on whether the evidence on which it was anchored met the threshold of proof beyond reasonable doubt. However, that evidence must be available to the court in order to convict.
30.The outcome of my determination of this appeal is that this appeal succeeds with the result that the conviction is hereby quashed and the sentence set aside. The Appellant is at liberty to go home unless for any other lawful cause he is held in custody.
31.Orders shall issue accordingly.