Levis Nyandika Mayore v Republic

3. 3. The Court be pleased to factor in the provision of section 333 (2) of the Criminal Procedure Code. As this is a second appeal, the role of this Court was set out in Karani vs R (2010) 1 KLR 73 as follows: “ This is a second appeal. By dint of the provision of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with decision of the superior Court on fact unless it is demonstrated that the trial court and the rst appellate Court considered matters, they ought not to have considered or that they failed to consider matter they should have considered or that looking at the evidence as a whole they were plainly wrong decision, in which case such omission or commission would be treated as a matter of law.” It was further explained in Njoroge vs Republic [1982] KLR 388 and Kaingo vs Republic [1982] KLR 213, that on a second appeal, this Court will not interfere with concurrent ndings of fact unless those ndings are unsupported by the evidence on record. 4. The particulars of the oence the appellant was charged with were that on 1st May 2015 at Kijauri in Borabu district within Nyamira County, the appellant intentionally caused his penis to penetrate the vagina of MA, a child aged 14 years old. In the alternative he faced a charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. A summary of the prosecution’s case was set out in the evidence of ve (5) witnesses it called to testify during the trial. 5. BOO, the complainant’s father (PW1) stated the complainant was born on 21st July 2001, making her 14 years old at the time of the commission of the oence, and he produced the birth certicate as an exhibit. He testied that on 1st May 2015, upon arriving home around 8:00 p.m., his daughter reported that the appellant had locked her inside his house and raped her, whereupon he reported the matter to Matutu Police Post. Cpl. Linah Chepngeno (PW4), who was the Investigating Ocer conrmed receiving the report on 2nd May 2015, interviewing the complainant, interrogating the suspect, issuing P3 forms, and escorting the complainant to hospital. At the hospital, the complainant was examined by Samson Mogaka Gichaba (PW2), a clinical ocer at Borabu Sub County Hospital, who observed inammation of the labia minora, indicating vaginal penetration. A lab analysis of a high vaginal swab revealed the presence of spermatozoa. PW2 produced the treatment notes and P3 form for the complainant as exhibits, which conrmed delement. 6. The complainant, MAO (PW3), testied that around 4:00 pm on 1st May 2015, she went to look for her aunt in a neighbouring plot where she met the appellant, who tripped her, pulled her by force into a one-room house, and threatened to kill her if she screamed. Further, that at the appellant called out to someone outside to lock the door from the outside. The complainant described how the appellant removed her clothes, pushed her onto the bed, and deled her. After the ordeal, which lasted for about 30 minutes, the door was opened from the outside by one "Nyakundi", and she went straight home to tell her father. 7. Georey Mariera (PW5), a neighbour and co-tenant of the appellant, corroborated this account of events and testied that on 1st May 2015, the appellant asked PW5 to place a padlock on the appellant’s house door while the appellant was inside, while claiming that he did not want to be disturbed by the landlord. PW5 conrmed he locked the door from the outside as requested, though he did not check inside the room. 8. The appellant, when put on his defence, gave sworn testimony denying the allegations, and claimed that on 1st May 2015, he asked a neighbor to lock his door from the outside so he could sleep without https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1883/eng@2026-09-25 2

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being sent on errands by his landlord, and after he woke up, he went out to milk cows, and was later arrested around 8:00 p.m. and midnight by police and community policing members. The appellant maintained that he did not dele the complainant and that police told the victim's parents nothing was wrong after the hospital examination. 9. We heard the appeal on this Court’s virtual platform on 3rd September 2025. The appellant, Mr. Levis Nyandika Mayore was present virtually from Siaya Main Prison, while the learned Principal Prosecution Counsel, Mr. Mwangi, appeared for the respondent. The appellant and learned counsel placed reliance on their written submissions dated 3rd July 2025 and 15th May 2025 respectively. 10. On the rst issue raised of the omission of a voir dire examination the appellant submitted that the trial Court erred in law by failing to conduct a voir dire examination before receiving and admitting the evidence of PW3, a 14-year-old minor and alleged victim. The appellant argues that an omission of this examination renders the minor's evidence improperly received, making the conviction unsafe. On his part, counsel for the respondent while citing the decision by this Court in Korir vs R (2025) 1095(KLR), submitted that the issue of failing to conduct a voir dire examination was never raised in the trial court or on rst appeal to the High Court, and that this Court, as a second appellate court, cannot entertain new unraised issues. Additionally, that the victim gave her testimony under oath, demonstrating an appreciation of the oath, and her testimony was corroborated by medical evidence. 11. We have perused the record of appeal, and we note that the appellant did not specically raise the issue of lack of a voir dire examination in his petition of appeal or submissions in the High Court. His general grounds of appeal in this regard were that the trial learned magistrate erred when he “ erroneously based the conviction on the allegations demonstrated in court by the prosecution side yet the same were ctitious, imaginary and not safe to be relied upon by the court given that the same were deeply shrouded with some irregularities which lessened the signicance of the prosecution evidence”, and “miserably based the conviction on awed and mistrial process in which the law was not complied with by the court, hence occasioning gross prejudice against the mere novice appellant”. 12. To this extent, we shall address the appellant’s arguments on the voir dire examination in the context of the ground he raised in the High Court as regards the processes of law having not been complied with. A voir dire examination originates from the requirements of section 19 of the Oaths and Statutory Declarations Act on the reception and admissibility of evidence of a child of tender years who, in the opinion of the court does not understand the nature of an oath. The evidence of such a child may nonetheless be received though not given upon oath if, in the opinion of the court, the child is possessed of sucient intelligence and understands the duty of speaking the truth. In essence, the voir dire examination is the means by which a trial court determines if a child of tender years who does not understand the nature of an oath is possessed of sucient intelligence and understands the importance of speaking the truth. 13. As regards the class of children required to be subjected to a voir dire examination, this Court held as follows in Maripett Loonkomok vs Republic [2016] KECA 520 (KLR) : “ The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory denition of a “child of tender years” is section 2 of the Children Act where it is dened to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R, Criminal Appeal No.137 of 2014 and in Samuel Warui Karimi v R Criminal Appeal No.16 of 2014 stated categorically that the denition in the Children Act https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1883/eng@2026-09-25 3

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is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination. It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that; “ In appropriate case where voir dire is not conducted, but there is sucient independent evidence to support the charge… the court may still be able to uphold the conviction.’ See Athumani Ali Mwinyi V R Cr.Appeal No.11 of 2015” 14. In the present appeal, the proceedings of the trial show that the trial Court did not record whether it tested the intelligence of the complainant (PW3), and if it found her to possess sucient knowledge to understand the nature of the proceedings or of speaking the truth. However, it is indicated that the complainant gave evidence after she was duly sworn, which meant she understood the nature of an oath, and section 19 of the was therefore inapplicable. Furthermore, any irregularity in the conduct of a voir dire examination does not vitiate the entire prosecution’s case, and the only eect is that the evidence of a child of tender years will in such circumstances require to be corroborated by other material evidence. The evidence of PW3 was in this regard cogent; she was cross-examined by the appellant; her evidence as regards the actions of the appellant were corroborated by PW5 who was a neighbour of the appellant, and the evidence of penetration was corroborated by the medical evidence of PW2 who examined PW3. Therefore, the evidence of PW3 was suciently corroborated, and the ingredients of the oence of delement proved to the required standard. The trial was accordingly not vitiated by the failure to conduct a voir dire examination, and the appellant’s conviction was safe. 15. On the unconstitutionality of the 20-year imprisonment sentence, the appellant requested to be treated as a rst-time oender and granted a reduced sentence, citing his age (19 years at the time of the alleged incident) and Article 50(2)(p) of the Constitution of Kenya. Learned counsel for the respondent, while relying on the judgment by the Supreme Court of Kenya in Republic vs Joshua Mwangi & Initiative of Strategic Litigation in Africa (ISLA) & 2 others, (2024) KESC 34 (KLR), submitted that the decision in Muruatetu & another vs Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (the Muruatetu Case) did not invalidate all mandatory and minimum statutory sentences, and the 20-year sentence was legal and valid. 16. The Supreme Court of Kenya in its decision in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (supra), addressed the legality of minimum sentences and particularly whether the ratio decidendi in (the Muruatetu Case) on the unconstitutionality of mandatory sentences could be applied mutatis mutandis to the mandatory nature of minimum sentences provided for in the Sexual Offences Act 17. The Supreme Court held as follows in this regard: “ 57. Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the oor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence…. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1883/eng@2026-09-25 4

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58. In the Muruatetu case, this court solely considered the mandatory sentence of death under section 204 of the Penal Code as it is applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that apply for example to capital oences, are vastly dierent from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting dierent sentencing for criminal oences, the drafters of the law in the Legislature, take into consideration a number of issues including deterrence of crime, enhancing public safety, sequestering of dangerous oenders, and eliminating unjustiable sentencing disparities.” 18. Similarly, the Supreme Court held in Republic vs Julius Kitsao Manyeso, [2025] KESC 16, that the decision in the Muruatetu Case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Oences Act or any other statute. Further, that the Muruatetu Case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. The sentence of twenty (20) years that the trial magistrate imposed upon the appellant was the minimum sentence provided under section 8(3) of the Sexual Offences Act. The sentence was therefore, in light of the above- cited decisions by the Supreme Court, neither excessive, illegal or unconstitutional. 19. The last issue is that of the time the appellant spent in remand custody. The appellant submitted that this court considers section 333(2) of the Criminal Procedure Code regarding the period he spent in remand custody, specically 5 months and 7 days between his arrest on 2nd May 2015, and his release on bond on 12th October 2015. The respondent’s counsel conceded that the sentence should factor the period the appellant spent in remand custody before bond was issued, pursuant to Section 333(2) of the Criminal Procedure Code. The provisions of section 333(2) of the Criminal Procedure Code provide that the period during which an accused has been held in custody before being sentenced must be taken into account in meting out the sentence on the following terms: “ Subject to the provisions of section 38 of the Penal Code (Cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 20. This Court in the case of Ahamad Abolfathi Mohammed & Sayed Mansour Mousavi vs Republic [2018] KECA 743 (KLR) explained as follows as regards the manner of applicability of the said section: “ By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take eect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(s) of the Criminal Procedure Code was introduced in 2007 to give the court https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1883/eng@2026-09-25 5

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power to include the period already spent in custody in the sentence that it metes out to the accused person. We nd that the rst appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012." 21. The Judiciary Sentencing Policy Guidelines likewise provide that the proviso to section 333(2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. It is not contested by the respondent that the appellant had been in custody from the date of his arrest on 2nd May 2015 until the approval of his surety for bond on 12th October 2015. When sentencing the appellant, the trial court stated as that “the accused person is sentenced to serve (20) twenty years imprisonment. Right of appeal 14 days”, and did not take into account the period spent by the appellant in custody as required by law. We accordingly nd merit in this ground of appeal. 22. The upshot of the foregoing analysis is that the appellant’s appeal against his conviction is not merited and is dismissed, while his appeal against the sentence partially succeeds only to the extent that that the 5 months and 7 days the appellant spent in remand custody between his arrest on 2nd May 2015, and his release on bond on 12th October 2015 be taken into account in computing his sentence of 20 years’ imprisonment pursuant to the provisions of Section 333(2) of the Criminal Procedure Code. 23. Orders accordingly. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026 P. NYAMWEYA .................... JUDGE OF APPEAL L. ACHODE .................... JUDGE OF APPEAL J. MATIVO .................... JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1883/eng@2026-09-25 6

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