D.M.K. v Republic [2011] KECA 220 (KLR)
The bottom line
#Kenya's Court of Appeal freed a man convicted of defiling his young son because the conviction relied on a small child's word without proper corroboration.
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 guilt of the appellant was proved beyond reasonable doubt
- 2.Whether the evidence of PW3 was properly received as expert evidence under section 48 of the Evidence Act
- 3.Whether the requirements of section 124 of the Evidence Act regarding corroboration of the evidence of the alleged victim were complied with
- 4.Whether the procedure for receiving the unsworn evidence of a child of tender years under section 19(1) of the Oaths and Statutory Declarations Act was strictly followed
- 5.Whether the courts below gave due consideration to the sworn defence of the appellant
Key legal issues
#Sufficiency of corroboration where the only direct evidence of the offence is the unsworn statement of a child of tender years
The conviction rested wholly on the unsworn evidence of PW6, a child of 3½ years; the evidence of PW1 and PW2 merely repeated what PW6 told them and did not provide circumstances confirming commission of the offence by the appellant, so the guilt of the appellant was not proved beyond reasonable doubt.
The court examined section 124 of the Evidence Act, which requires that a accused not be convicted on the evidence of an alleged victim unless corroborated by material evidence implicating him, subject to the proviso allowing conviction on the uncorroborated evidence of the victim in sexual offences where the court, for recorded reasons, is satisfied the victim is telling the truth. Neither the trial court nor the first appellate court gave the proper direction or warning on the need for corroboration, and no such recorded reasons existed. The lapse of time between the alleged offence and discovery of the injuries compounded the doubt.
Compliance with the voire dire procedure for a child of tender years
The procedure under section 19(1) of the Oaths and Statutory Declarations Act for receiving the evidence of a child of tender years was not strictly followed, and due consideration was not given to the sworn defence of the appellant by either court below.
The court noted that perusal of the judgments of the two courts below failed to show that proper direction or warning was given on the need for corroboration given the tender age of the sole witness to the commission of the offence. It further found the record showed the section 19(1) procedure was not strictly followed, and that neither the trial nor the first appellate court gave due consideration to the appellant's sworn defence. Had these matters been considered, the first appellate court could not have reached the decision it did.
Failure to link medical findings to the alleged offence
The medical evidence of PW3, which noted anal injuries of about three days' duration, did not establish penetration, and PW3 did not investigate the running stomach observed on PW6 or its connection with the anal findings.
The court observed that the prosecution evidence was not clear on when, if at all, the appellant committed the offence. When PW6 was examined at Njoro Health Centre on 30th March 2009, PW3 did not check the running stomach or whether it had any connection with the anal findings she observed. This gap in the medical evidence undermined the prosecution case on penetration, the essential ingredient of the charge under section 8(1) of the Sexual Offences Act.
Legal principles established
#- On a second appeal only matters of law fall for the consideration of the Court, by virtue of section 361(1).
- Corroboration must connect or tend to connect the accused with the crime, confirming not only that the crime was committed but that the accused committed it.
- Evidence of a child of tender years, whether sworn or unsworn, is as a rule of practice required to be corroborated by material evidence implicating the accused, and the court must properly direct itself on the need for such corroboration.
- The procedure for receiving the evidence of a child of tender years under section 19(1) of the Oaths and Statutory Declarations Act must be strictly followed, and failure to give the proper warning on corroboration or to follow that procedure vitiates a conviction resting solely on such evidence.
Court orders
#- 1.Appeal allowed
- 2.Conviction of the appellant quashed
- 3.Sentence of life imprisonment set aside
- 4.Appellant to be set at liberty forthwith unless otherwise held for some other lawful cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.Cr.A. 322 of 2009
- Jurisdiction invoked
- Section 361(1) of the law governing criminal appeals - a second appeal in which only matters of law fall for consideration
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.
This is a second appeal and by virtue of section 361(1) only matters of law fall for the consideration of this Court.
An important element in the definition of corroboration is that it affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it
It however remains a rule of practice and as such and subject to the proper warning being administered the court may still convict upon such evidence without corroboration - see Kinyua v. Republic [2002] 1 KLR 256 at page 258.
In the circumstances, the guilt of the appellant was not proved beyond reasonable doubt.
We allow this appeal, quash the appellant’s conviction and set aside the sentence of life imprisonment imposed upon him. The appellant shall be set at liberty forthwith unless he is otherwise held for some other lawful cause. It is so ordered.
Issues in the judgment
#The judgment invokes 'section 361(1)' for the scope of a second appeal without naming the statute in which that provision is found.
The judgment inconsistently dates the discovery of PW6's symptoms, recording both '29th November, 2009' and '29th March, 2009' for the same event.
The judgment describes PW3, Tabitha Ngugi, as 'a registered nurse' in the narrative, while the State Counsel is recorded describing her as 'the Clinical Officer'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "D.M.K. v Republic [2011] KECA 220 (KLR)", Case Analysis (2011). Criminal Appeal No. 148 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/220/eng@2011-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.