Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCriminal Appeal No. 39 of 1996

Sibo Makovo v Republic

Court of Appeal
24 September 1997
ACA.M. CockarASA.B. ShahALA.A. Lakha
0 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal upheld a defilement conviction despite trial errors, because strong corroborating evidence outweighed the procedural shortcomings.

What this practically means

#

Executive summary

#
The Court of Appeal at Nakuru (Cockar CJ, Shah and Lakha JJA) dismissed the appellant's second appeal against his conviction for defiling a twelve-year-old girl contrary to section 145(1) of the Penal Code and his sentence of eight years' imprisonment, which the High Court (Ondeyo J) had already varied by reducing the strokes of the cane from four to two. The court identified three procedural shortcomings at trial. First, the magistrate affirmed the child complainant without inquiring whether she understood the need to tell the truth, which the court held was a duty and whose absence may question the probative value of her evidence. Second, the evidence of a child of tender years required corroboration, but the court found ample corroboration in the mother's testimony, in the complainant's physical condition, in the appellant's own admission that he was with the child, and in a police officer's evidence. Third, the P3 medical report was produced by a person other than its maker without any foundation being laid, contrary to the requirements of section 33 of the Evidence Act; the court admonished trial magistrates to be careful in admitting P3 forms when the maker is not called. However, since the P3 form added nothing to the prosecution case, the irregularity was not fatal. The court declined to disturb the concurrent findings of the two courts below and dismissed the appeal. No costs order was made.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the evidence of the child complainant, taken without an inquiry into her understanding of the need to tell the truth, could sustain the conviction
  2. 2.Whether the complainant's evidence was sufficiently corroborated as required for a child of tender years
  3. 3.Whether the P3 medical report was properly admitted in evidence without the maker being called
  4. 4.Whether the concurrent findings of the two courts below should be disturbed

Key legal issues

#
01

Sufficiency of the child complainant's unsworn evidence

Holding

Although no inquiry into the child's understanding of the duty to tell the truth was made, her cogent, consistent and graphic evidence, together with corroboration, sustained the conviction

Reasoning

The court acknowledged the magistrate's failure to conduct the statutory inquiry into the child's understanding of the need to tell the truth, which may question the probative value of the evidence. However, it found the complainant's evidence cogent, clear and consistent, and held that each case depends on its own facts. Her evidence was corroborated by her mother's testimony and the appellant's own admission that he was with her.

p. 2
02

Corroboration of a child of tender years' evidence

Holding

The required corroboration was provided by PW1's evidence of the complainant's physical condition and circumstances, by the appellant's own confirmation that he was with the complainant, and by the police officer's evidence

Reasoning

The court identified corroboration in the mother's evidence that the child disappeared after leaving with the appellant and was later found bloodied and unable to walk; in the appellant's own admission that he saw and was with the child; and in Constable Biwott's evidence that the appellant admitted 'moving' with the child. This satisfied the corroboration requirement for evidence of a child of tender years.

p. 2
03

Admissibility of the P3 medical report without the maker

Holding

The P3 form was improperly admitted because no foundation was laid for its production by a person other than its maker, but its exclusion would not have altered the outcome as it added nothing to the prosecution case

Reasoning

The record did not show that the contents of the P3 form were explained to the appellant, nor that the maker was unavailable. The court laid down the rule that a document whose maker is unavailable may be produced only after another person identifies the maker's signature under section 33 of the Evidence Act, and admonished trial magistrates to be careful in admitting P3 forms without the maker. Nonetheless, the form did not add to the prosecution case.

p. 2

Legal principles established

#
  • Before receiving the unsworn evidence of a child of tender years, the trial magistrate is duty bound to inquire whether the child understands the need to tell the truth; failure to do so may diminish the probative value of that evidence
  • The evidence of a child of tender years requires corroboration
  • Where the maker of a document such as a P3 form is not available, it may be produced only after another person identifies the maker's signature, in terms of section 33 of the Evidence Act; trial magistrates must be careful in admitting P3 forms when the maker is not called

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.The conviction and sentence (as reduced by the High Court in respect of the strokes of the cane) stand

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

AC
majority

Wrote the judgment

AS
majority

Wrote the judgment

AL
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nakuru
H.C.CR.A. No. 177 of 1994
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Act in criminal appeals from the High Court

Relief refused

#

Setting aside of the conviction and sentence for defilement

The court saw no reason to differ from the concurrent findings of the two courts below; the complainant's evidence was cogent and corroborated

p. 2

Costs

No costs order made (criminal appeal)

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the learned magistrate was duty bound to inquire if she understood the need to tell the truth. No such inquiry appears to have been made.
p. 2Preliminary inquiry into a child witness's understanding of the duty to tell the truth
But the evidence of a child of tender years needs corroboration.
p. 2Corroboration rule for children of tender years
It appears to us that production of P3 forms in Courts is not taken seriously and we wish to impress upon trial magistrates to be careful in admitting P3 forms when the maker is not called.
p. 2Admonition to trial magistrates on production of P3 forms
Accordingly, we see no reason to differ from the concurrent findings of the two courts below and we order that this appeal be dismissed.
p. 2Final orders - dismissal of the appeal and affirmation of concurrent findings

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Sibo Makovo v Republic", Case Analysis (1997). Criminal Appeal No. 39 of 1996. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.