Wanyama v Republic (Criminal Appeal E075 of 2026) [2026] KECA 1715 (KLR) (25 September 2026) (Judgment)

Wanyama v Republic (Criminal Appeal E075 of 2026) [2026] KECA 1715 (KLR) (25 September 2026) (Judgment) Neutral citation: [2026] KECA 1715 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CRIMINAL APPEAL E075 OF 2026 PM GACHOKA, WK KORIR & L NDOLO, JJA SEPTEMBER 25, 2026 BETWEEN DENIS WANYAMA .................................................................................  APPELLANT AND REPUBLIC ............................................................................................  RESPONDENT (Appeal from the Judgment of the High Court at Eldoret (W.A. Okwany, J.) delivered on 30th January 2019 in HCCRA No 91 of 2017) JUDGMENT 1. This is a second appeal from the judgment of the High Court at Eldoret (W.A. Okwany, J.) dated 30th January 2019, by which the appellant’s conviction and sentence by the Chief Magistrate’s Court at Eldoret were upheld. 2. The appellant, Denis Wanyama, was charged with the oence of delement, contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. Particulars of the oence were that on 27th September 2015, at [Particulars withheld] farm in Likuyani Sub-County, within Kakamega County, the appellant unlawfully and intentionally caused his genital organ (penis) to penetrate into the genital organ (vagina) of MN, a child aged 9 years. The appellant faced the alternative charge of committing an indecent act with a child, contrary to section 11 of the Sexual Offences Act. 3. On 29th September 2015, the appellant appeared before the trial court for plea-taking, and he denied both the main and alternative charge. He was tried and convicted on the main charge of delement, and was consequently sentenced to life imprisonment. His appeal to the High Court was dismissed, with both conviction and sentence being upheld. 4. The appellant, is dissatised with the judgment of the High Court and is before us on a second appeal. In his initial memorandum of appeal, which is undated, the appellant faults the rst appellate court for failing to consider that: the clinical ocer (PW4) was not fully cross-examined; no investigation was https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1715/eng@2026-09-25 1 carried out; the appellant was not linked to the delement of the complainant; the evidence tendered was insucient to warrant a conviction; the two minors (PW1 & PW2) were not subjected to a voir dire examination; important witnesses were not availed; and the age of the minor was not conclusively proved. 5. The appellant led amended grounds of appeal dated 30th May 2026 stating that: the rst appellate court erred in law by upholding his conviction based on the complainant’s testimony which was not preceded by a voir dire examination; the ingredients of the oence of delement were not proved; the investigating ocer was not called as a witness; and the medical evidence was not fully adduced. According to the appellant, this occasioned incurable gaps in the prosecution case. The appellant further complains that the trial was unfair and that the rst appellate court failed to consider the constitutionality of the mandatory minimum sentence of life imprisonment. 6. In support of its case at trial, the prosecution called four (4) witnesses; the complainant, her brother aged 7 years, her mother and a clinical ocer. The record shows that when taking the evidence of the complainant (PW1) and her brother (PW2), the trial court formed the opinion that they were not of tender age and could therefore be sworn. 7. The prosecution case was that the complainant was at home with her brother (PW2) who told her that a neighbour going by the name Mama Lengu, had asked that the complainant goes to run an errand for her. The complainant went to Mama Lengu’s home but she did not nd her; instead, she found the appellant, an employee of Mama Lengu, who deled her. The complainant went back home and reported the incident to her mother (PW3). PW2 told the court that it was the appellant who asked him to inform the complainant that Mama Lengu wanted to send her on an errand. PW2’s further evidence was that the complainant took long at Mama Lengu’s home and when she came back, she was crying. 8. PW3 testied that the complainant was her second-born child, and that her date of birth was 1st November 2006. She produced a child health card to support this testimony. PW3 further testied that on 27 th September 2015, she came back home at 11:00 am and found the complainant missing. PW2 informed PW3 that the complainant had gone to Mama Lengu’s home to run an errand for her. 9. PW3 further testied that the complainant came back home crying, and informed her that she had been deled by the appellant. PW3 confronted the appellant, who denied having deled the complainant. The complainant was treated at Matunda Sub-County Hospital and a P3 form was completed. Stanley Soita, a clinical ocer from this hospital testied as PW4, producing a P3 form and treatment notes for the complainant, and a P3 form for the appellant. The complainant was examined on 17th October 2015 and found to have a mild swollen labia and a freshly perforated hymen. Lab tests on the appellant revealed numerous pus cells. 10. When PW4 took the witness stand, he gave his evidence-in- chief, after which the appellant began cross-examining him. After asking a few questions, the appellant sought an adjournment to enable him review the P3 form. The case was adjourned and xed for further hearing on 5th December, the year not being indicated. On 5th December 2016, the prosecutor sought an adjournment on the ground that no witnesses were available. The case was adjourned to 18th January, the year not being indicated. On 18 th January 2017, the record shows that the trial magistrate was on ocial leave, and the case was adjourned to 15th March 2017. On 17th April 2017, the case was adjourned to 19th April 2017 because of an ongoing doctors’ strike. On 19th April 2017, the prosecutor again sought an adjournment and applied for summonses against the clinical ocer and the investigating ocer. On the subsequent hearing date, the prosecutor was still not ready to proceed because witnesses were unavailable, and the court adjourned the case to 12th June 2017. On that date, the prosecutor informed the court that he did not have his le and that the remaining witnesses were absent. The appellant objected, stating https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1715/eng@2026-09-25 2 that he was suering in custody and that the prosecution had been granted several adjournments. The prosecutor then closed his case, and the court ruled that the appellant had a case to answer, based on the evidence on record. 11. We have detailed the sequence of the foregoing events, as this will be a crucial issue for determination, as will become clear later in the judgment. At this stage, what is important to highlight is that the clinical ocer was not presented for further cross-examination and that the investigating ocer never testied. 12. At the hearing of the appeal on 3 rd June 2026, the appellant appeared virtually from Naivasha Maximum Prison and Mr. Okaka, Learned Principal Prosecution Counsel, appeared for the respondent. The parties relied on their written submissions, which were briey highlighted. 13. In his written submissions dated 30th May 2026, the appellant states that there was a fundamental breach of procedure by the trial court, while taking the evidence of PW1 and PW2 who were minors aged 10 and 11 years respectively. He points out that the trial magistrate failed to conduct the mandatory voir dire examination to test the minors’ understanding of the meaning and import of an oath as required under section 19 of the Oaths and Statutory Declarations Act. 14. Relying on the decision in Samuel Warui vs Republic [2016] eKLR the appellant argues that failure to subject PW1 and PW2 to voir dire examination invalidated the proceedings, as the testimony of PW1 was not corroborated by independent testimony. He faults the rst appellate court for accepting the evidence of the minors. The appellant further cites the decision in Kinyua vs Republic [2002] KLR 425 where it was held that a trial court is required to conduct a voir dire examination, by not only posing questions to the minor, but by recording the questions and the answers given by the minor. 15. Regarding the age of the complainant, the appellant submits that the child health card, produced before the trial court, was not sucient proof of age. He points out that the card only contained a declaration by the parents of the child that she was born at home and the birth, having been registered months later, was not conclusively proved. According to the appellant, this evidence ought to have been corroborated by other forms of evidence such as a birth certicate or an age assessment report. He relies on the decisions in JOA vs Republic [2019] eKLR and Stephen Nguhiu Mwangi vs Republic [2014] eKLR to back his argument on alternative means of proving age and corroboration of such evidence. 16. The appellant submits that the prosecution failed to prove the element of penetration. Referring to the testimony of the clinical ocer (PW4) which was not completed, the appellant maintains that there was no evidence linking him to the oence. He ags the fact that he was not given an opportunity to interrogate the contents of the P3 form through cross examination of the clinical ocer. The appellant’s position is that both the trial court and the rst appellate court erred in relying on the testimony of PW4, which was not subjected to cross examination. 17. The appellant also takes issue with the fact that the investigating ocer did not testify. This, the appellant argues, created substantial gaps in the prosecution case. In addition, the appellant claims that the testimony tendered by the prosecution witnesses was contradictory and inconsistent. 18. In opposing the appeal, the respondent led submissions dated 28th May 2026. Submitting on the jurisdiction of this Court on a second appeal, the respondent referred to section 361(1) of the Criminal Procedure Code and the decision in Karingo & 2 Others vs Republic [1982] KLR 213. 19. The respondent maintains that the appellant was properly convicted for the oence of delement. On the age of the minor, the respondent submits that PW1 herself testied that she was 10 years old and that her child health card corroborated this testimony. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1715/eng@2026-09-25 3 20. Regarding penetration, the respondent submits that the narration by the complainant of the circumstances of the oence was corroborated by the testimonies of PW2 who testied that he was present when the complainant left home and when she came back after the delement, and of PW4 who testied on the nature of injuries sustained by the complainant. While conceding that PW4 was not fully cross examined by the appellant, the respondent takes the view that this did not aect the veracity of the testimony. 21. The respondent contends that PW1 and PW2 were subjected to voir dire examination, although not in the ordinary question and answer format. Relying on the decision in Johnson Nyoike Muiruri vs Republic [1983] KECA 1 (KLR) the respondent argues that failure to record the voir dire examination did not render the proceedings a nullity. Citing this Court’s decision in Karimi vs Republic [2016] KECA 812 (KLR) the respondent takes the position that failure to conduct a voir dire examination altogether is what would vitiate a conviction. 22. We have carefully considered the record and the submissions led by the parties, alongside cited authorities. In our view, this appeal turns on two major questions: rst, whether the trial court conducted a voir dire examination on PW1 and PW2 before taking their testimony, and second, whether the medical evidence was properly adduced. 23. ‘Voir dire’ is an old French phrase meaning ‘to speak the truth.’ A voir dire examination is a preliminary questioning process used in court to check the competence of a particular witness, before they can participate in a trial. It acts as a specialized screening tool, especially for child witnesses and it is this pretrial process that enables the court to determine if the witness has the competence to testify and if so, whether they will give a sworn or unsworn statement. 24. The primary purpose of a voir dire examination, particularly regarding the testimony of minors or children of tender years is to enable the trial court to conduct a preliminary inquiry to satisfy itself that the child possesses sucient intelligence, understands the duty of telling the truth, and comprehends the nature of an oath, before their evidence is taken. 25. The duty of a trial court taking the testimony of a child is as codied in section 19(1) of the Oaths and Statutory Declarations Act which provides as follows: (1) Where, in any proceeding before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sucient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any oence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap.75), shall be deemed to be a deposition within the meaning of that section. 26. This duty is critical in assuring a fair trial and trial courts must take it seriously. It is not a run-of-the-mill ritual before trial and its mishandling can lead to a grave miscarriage of justice. In Japheth Mwambire Mbitha vs Republic [2019] eKLR the import of voir dire was set out as follows: “ Voir dire examination is a hearing to determine the admissibility of evidence or the competency or qualication of a witness or juror…With specic regard to the testimony of children, voir dire examination is essential to enable the court satisfy itself that the child is conscious of the truth,” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1715/eng@2026-09-25 4 27. In the appeal before us, what transpired prior to the testimony of PW1 and PW2 being taken is reproduced below: “ PW1: I am 10 years. I am in std 5 Court: She is not of tender age. She can be sworn. PW2: My name is EN (name redacted) I am in std 6. I am 11 years. Court: He is not of tender age. He can be sworn.” 28. In addressing the complaint raised by the appellant on the issue of voir dire, the High Court, as a rst appellate court, had this to say, in its judgment dated 30th January 2019: “ The appellant raised the issue that voir dire examination was not conducted on the complainant so as to establish if she was competent to testify. On this point, I note that the trial court upon observing and questioning the complainant on her age noted that she was not of tender age and could therefore give a sworn statement.” 29. We are unable to understand the basis upon which the trial court arrived at the conclusion that PW1 and PW2, who told the court they were aged 10 and 11 years respectively, were not children of tender years. Clearly, PW1 and PW2 were children of tender years for purposes of voir dire. See Karimi vs Republic [2016] KECA 812 (KLR). That aside, the record does not reveal the factors taken into account by the trial court to determine that the two minors were competent to give sworn statements. 30. We are aware that there is no statutory format for conducting a voir dire examination. However, though there is no formal procedure to conduct voire dire, a trial court must do it in a manner that shows it had a basis for determining whether a child ought to give sworn or unsworn evidence. The Court has pronounced itself on the irreducible minimum of what such an examination ought to contain. In James Mwangi Muriithi vs Republic [2016] eKLR it was held that: “ The need for the administration of voir dire on minor witnesses before reception of their testimonies especially in criminal trials is entrenched in section 19 of the Oaths and Statutory Declarations Act cap 15 Laws of Kenya. This provision does not of itself provide the format to be applied in the course of such administration. The format used has basically evolved through case law. In Sula versus Uganda [2001] 2EA 556 the Supreme Court of Uganda approved two formats. The rst one is where the trial court can write down the questions put to the witness and the answer of the witness in the rst person in the words spoken by the witness in a dialogue form and then make its conclusions after the dialogue. In the second format the court may omit to record the questions put to the witness but record the answers verbatim in the rst person and then make its conclusion thereafter.” 31. We have agonized over the manner in which the trial court handled the testimony of PW1 and PW2 and have reached the inescapable conclusion that no voir dire examination as dened in law, was conducted. What the trial magistrate did cannot, by any stretch of argument, be deemed as an exercise of conducting a voir dire examination. The trial magistrate had no basis to proceed in the casual manner she did, in taking the testimony of the two witnesses. This, in our considered view, rendered the testimony worthless and incapable of sustaining a conviction. We do not agree with the rst appellate court that the trial magistrate conducted a proper and legally acceptable voir dire. Failure to conduct https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1715/eng@2026-09-25 5 a proper voir dire examination of a child witness of tender years renders the trial problematic. Thus, in Karimi vs Republic (supra), it was held that: “ The above decision supported the denition of a child of tender years to be 14 years and below and contextualized that denition within the Oaths and Statutory Declarations Act and under the Children’s Act. On our part, we have no good reason to depart from this well- trodden path, as we are in agreement the purpose of undertaking voire dire examination in a criminal trial is to protect the guaranteed right of a fair trial. Where the witness as in this case was aged 12 years and that essential step was not taken in a criminal trial, that trial becomes problematic. In the circumstances we nd the evidence by the complainant was not properly received thus, the conviction of the appellant becomes unsafe to sustain as she was the complainant and not any other witness.” 32. We will now turn to the issue of the medical evidence tendered by PW4, whose testimony was not completed. In his written submissions, the appellant cited Article 50(2)(k) of the Constitution of Kenya, 2010 which guarantees every accused person the right to adduce and challenge evidence. It is an undisputed fact that PW4 was stood down on 17th October 2016 to allow the appellant time to scrutinize the P3 form and that the witness did not return to the stand, and the prosecution eventually closed its case on 12th June 2017. The result of this is that the medical evidence which was crucial in proving the oence was not tested in cross examination. 33. Section 208(2) of the Criminal Procedure Code provides that prosecution witnesses are subject to cross-examination by the accused person or their advocate. In his oral submissions before us, Learned Principal Prosecution Counsel, Mr. Okaka conceded that because the evidence of PW4 was not fully rendered, it was erroneous for the trial court and the rst appellate court to rely on it. He however urged that although medical evidence is desirable, it is not mandatory in proving delement. 34. On our part, we are clear that testimony that is not subjected to cross examination by an accused person violates the fundamental right to a fair trial, and cannot therefore be relied upon to support a conviction. In its decision in HWO vs Republic [2010] eKLR this Court, citing with approval, Sula vs Uganda [2001] EA 556 asserted that the right to an accused person to cross examine every prosecution witness, including unsworn minors, comprises the fulcrum of fair trial. 35. We have said enough to dispose of this appeal; the complainant’s testimony and that of her brother (PW2) was taken without the mandatory voir dire examination and the medical evidence was not properly adduced. What then shall we say? When judges and judicial Ocers sit to hear cases, they are guided by the law and the evidence presented before them; they are not to be inuenced by gut feeling or unveried nuances. 36. Sitting as a second appellate court, and fully reliant on the record and the law, we have reached the conclusion that the conviction of the appellant was unsafe. Clearly, this is an appeal in which the hearing in the trial court should be declared a mistrial. However, we note that the alleged oence occurred on 27th September 2015, which is more than 10 years ago. The complainant is now in her twenties, and it may not serve the ends of justice to have her go through the ordeal of the events once again. The lapse of time may aect the witnesses due to lapse of memory or even availability. 37. Consequently, the appeal succeeds with the result that the appellant’s conviction and sentence are quashed and the appellant is set at liberty, unless otherwise lawfully held. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. M. GACHOKA C.Arb, FCIArb. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1715/eng@2026-09-25 6 ...................................... JUDGE OF APPEAL W. KORIR ...................................... JUDGE OF APPEAL L. M. NDOLO ...................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1715/eng@2026-09-25 7