R. v. Elinaja & Anor. Crim. App. 905-A-70; 30/7/71; Kwikima Ag. J.

R. v. Elinaja & Anor. Crim. App. 905-A-70; 30/7/71; Kwikima Ag. J.

            The respondents Elinaja and Eliakunda were charged with defilement of a girl under the age of 12 years c/s 136(1) of the Penal Code. the prosecution alleged that the respondents defiled the complainant, a minor, when she was on her way home. One Tanansi testified that both respondents were very well known to him, that on the material day he heard a girl crying near his house but did not go to rescue her, later Eliakund turned up at his house with his clothes muddy and that he had seen him near the alleged scene of the crime soon after the cries of the complainant were heard. As far as Elinaja was concerned, it was alleged that the complainant named him to he grandmother connecting him with the alleged crime. During the trial, the learned magistrate examined the complainant on the voir dire and found her to be appreciative of the obligation to tell the truth under oath without being satisfied first that she was intelligent enough to give evidence. In his judgment the trial magistrate acquitted the respondents for lack of corroboration but the Republic contended that on the facts this was an erroneous conclusion.

                        Held: (1) “As a child of tender years, the complainant could have he evidence taken only after the court was satisfied firstly that she was intelligent enough to give evidence and secondly that she appreciated the need to tell the truth after taking the oath in accordance with the provisions of section 153 (3) C. P. C. and authorities like Jackson Oniyiwa v. R. 1969 H. C. D. 27, Kibangeny Arap Kalil v. R. 1959 E. A. 92, Kibonge Ramadhani v. R. 1969 H. C. D. 28 to cite but a few authorities. The learned magistrate who examined the complainant on the voir dire found the complainant to be appreciative of the obligation to tell the truth under oath. Although it should have been ascertained first whether the complainant was intelligent enough to give evidence, there can be no danger of a child intelligent enough to appreciate an oath being as unintelligent as to the incapable of giving evidence in a court of law. The trial court cannot thus be held in error when it received the complainant’s evidence in the way it did.” (2) “The evidence against Elinaja, however, is that of the complainant only. She named him to the grandmother. There is no independent evidence to connect Elinaja to the offence. With respect to the learned state attorney, such evidence cannot constitute corroboration the definition of which was lucidly given by George’s c. J. in R. v. Jairi Maipopo 1968 H. C. D. 300: “Corroboration, it must be stressed, is independent evidence connecting the accused person with the offence.” If such test is applied, the magistrate could not have come to any other conclusion except to acquit Elinaja. Although a magistrate may convict without corroboration where he is so impressed by the complainant’s evidence and after warning himself of the danger of convicting without independent testimony, the learned trial magistrate did not find the complainant to be such an impressive witness. The evidence of the complainant, a minor, therefore required corroboration before conviction could be founded upon it. Elinaja’s conviction could not therefore be supported on the corroborated evidence of the complainant simply because she named him to willaeli …………. It was urged for the republic that Tanasi’s evidence was corroborative of the complaint against Eliakunda. Yet when he gave evidence, Tanasi did not identify the girl whose cries he heard. This court is being asked to infer that that girl was the complainant. Tanasi did not say whether the complainant or her grandmother was his neighbour. Only P W 3 Grace Elia said that the complainant was her neighbour. Grace gave the residential address as Mwika Msai. Tanansi gave him as Mamba Lekura. Thise two may be names of one and the same place but the court must be told so. It cannot be expected to tell of its own knowledge. So badly presented was Tanasi’s evidence that it cannot be said toe connect Eliakunda with the offence, in view of the gaps which I have just pointed out.” (3) Appeal dismissed.