Onago v Republic (Criminal Appeal 91 of 1999) [2000] KECA 266 (KLR)
The bottom line
#Kenya's Court of Appeal freed a man convicted on uncorroborated child testimony, ruling that child witnesses who each need corroboration cannot corroborate each other.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal disclosed points of law, or material raising doubt about the conviction, such that it ought not to have been summarily rejected under section 352(2) of the Criminal Procedure Code.
- 2.Whether the unsworn evidence of the two child witnesses required corroboration as a rule of law under section 124 of the Evidence Act.
- 3.Whether the complainant's sister (PW2), who was herself a child of tender years giving unsworn evidence, could corroborate the complainant's evidence.
- 4.Whether the trial magistrate's examination of the child witnesses under section 19 of the Oaths and Statutory Declarations Act followed the procedure required by law.
Key legal issues
#The proper scope of the summary rejection power under section 352(2) of the Criminal Procedure Code.
Summary rejection is confined to appeals based on the weight of evidence or an excessive sentence where the record discloses no material raising doubt about the conviction. Where a point of law is raised in the grounds of appeal or emerges from the record, the appeal must be set down for full hearing.
The section by its terms permits summary rejection only where the appeal is brought on the ground that the conviction is against the weight of evidence or the sentence is excessive and the judge is satisfied no material raises reasonable doubt. Drawing on its prior pronouncements, the court held that points of law require full ventilation, argument by the parties and consideration by the court. Here, the corroboration requirement under section 124 of the Evidence Act and the question whether PW2 could corroborate PW1 were points of law apparent on the record, so the summary rejection was erroneous.
Whether the unsworn evidence of the two child witnesses required corroboration as a rule of law.
Unsworn evidence of a child of tender years admitted under section 19 of the Oaths and Statutory Declarations Act must, by virtue of section 124 of the Evidence Act, be corroborated by other material evidence implicating the accused; without such corroboration the accused cannot be convicted on it.
Both PW1 and PW2 were treated by the trial court as children of tender years and gave unsworn evidence. Section 124 of the Evidence Act expressly bars conviction on such unsworn prosecution evidence unless it is corroborated by other material evidence. The court distinguished the rule of practice or prudence requiring corroboration of complainants in sexual offences, which applies to the complainant only, from the statutory rule of law applicable to unsworn child evidence. The conviction rested on uncorroborated child evidence and could not stand.
Whether one child witness whose evidence itself required corroboration could corroborate the evidence of another such witness.
Evidence which itself requires corroboration cannot be used to corroborate other evidence; the complainant and her sister, each giving unsworn evidence as a child of tender years, could not corroborate each other, leaving the conviction without any corroboration.
The trial magistrate proceeded on the basis that the complainant's evidence was at least partially corroborated by her sister, PW2. But PW2 was herself treated as a child of tender years and gave unsworn evidence, so she equally required corroboration. The court held it was an error of law to use evidence requiring corroboration to corroborate another evidence. Consequently there was absolutely no corroboration of either witness, and the conviction could not be sustained.
The correct procedure for examining a child witness under section 19 of the Oaths and Statutory Declarations Act.
The court's examination of a child witness must follow two stages appearing on the record: first, whether the witness understands the meaning, nature and purpose of an oath (if so, sworn evidence follows); second, if not, whether the witness possesses sufficient intelligence to give unsworn evidence.
The court set out the mandatory sequence: questions must first be directed to whether the witness understands the meaning, nature and purpose of an oath; only if the witness fails that stage does the inquiry into sufficient intelligence follow, using simple elementary questions such as the date, the day and the school attended. The trial magistrate's examination was perfunctory, started at the second stage and never asked whether the witnesses understood the nature of an oath - an error which ought not to have occurred.
Legal principles established
#- A first appeal may not be summarily rejected under section 352(2) of the Criminal Procedure Code where a point of law is raised in the grounds of appeal or emerges from the record; such an appeal must be set down for hearing so that the point of law is fully ventilated and argued.
- A judge seized of an appeal under section 352(2) CPC must consider the entire record, not only the grounds of appeal, to determine whether the record raises reasonable doubt about the conviction or discloses points of law requiring a full hearing - particularly where the appellant is unrepresented.
- An accused person cannot be convicted on the unsworn evidence of a child of tender years unless that evidence is corroborated by other material evidence implicating him; the corroboration requirement in such a case is a rule of law, not merely of practice.
- Evidence which itself requires corroboration cannot be used to corroborate other evidence; two witnesses who each require corroboration cannot corroborate one another.
- Examination of a child witness under section 19 of the Oaths and Statutory Declarations Act must follow two stages - first ascertaining understanding of the meaning, nature and purpose of an oath, and only then, if that fails, ascertaining sufficient intelligence for unsworn evidence - and the examination must appear on the trial record.
Court orders
#- 1.Appeal allowed.
- 2.Conviction quashed.
- 3.Sentence set aside.
- 4.Appellant ordered to be set free forthwith unless otherwise lawfully held.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.CR.A. No. 103 of 1999
- Jurisdiction invoked
- Not expressly stated in the judgment; the appeal lies against the High Court's summary rejection of a first appeal under section 352(2) of the Criminal Procedure Code (Cap. 75), which the Court of Appeal assumed governed the proceedings below.
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.
Where there is a point of law raised, either in the grounds of appeal or by the material on the record, the section ought not to be used and an appeal ought not to be summarily rejected.
The entire record, for purposes of S.352(2) CPC, must be taken into consideration.
This is more particularly desirable where, as here, the appellant is unrepresented.
It is settled in law that, evidence which itself requires corroboration, cannot be used to corroborate another evidence.
There are two stages which must be followed and must appear on the record of the trial court.
We hereby therefore, and for all the reasons given allow this appeal, quash the conviction and set aside the sentence. We order that the appellant shall forthwith be set free unless otherwise lawfully held.
Issues in the judgment
#The judgment asserts that section 19 of the Oaths and Statutory Declarations Act was quoted verbatim earlier in the judgment, but no verbatim quotation of section 19 appears; the only statutory texts set out verbatim are section 352(2) of the Criminal Procedure Code and section 124 of the Evidence Act (the latter merely referencing section 19).
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joshua Kathoka Maluki v Republic [2020] KECA 863 (KLR)[2020] KECA 863 (KLR)21 Feb 2020
Cite this brief
#Cite this brief
Caselaw, "Onago v Republic (Criminal Appeal 91 of 1999) [2000] KECA 266 (KLR)", Case Analysis (2000). Criminal Appeal No. 91 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/266/eng@2000-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.