Robert s/o Sakila v. R., Crim. App. 928-M-66; 25/2/67; Platt, J.

Robert s/o Sakila v. R., Crim. App. 928-M-66; 25/2/67; Platt, J.

Accused was convicted of defiling a girl under the age of 12 years (P.C. s.136(1)) on evidence which disclosed that the girl was between 12 and 13. The republic sought to have the Court “alter the finding” to one of “guilty of rape” (P.C s.131), pursuant to its powers under Criminal Procedure Code section 319. At the trial, various children of uncertain age testified after the magistrate had informed them of the importance of giving evidence and the gravity of the oath.

            Held: Criminal Procedure Code section 319 authorizes the High Court to “alter findings” on appeal where the error to be remedied affects only the charge itself; where the evidence does not sustain a charge of defilement, the High Court may not alter the finding to one of rape. (2) The magistrate’s duty, as to witnesses of “tender years” is not just to admonish them of the serious nature of the oath, but to determine whether they understand the oath, and to allow then to testify only after being satisfied that they do. To attempt merely to inform them of their duties is to commit an error which is in itself a sufficient ground of appeal. Distinguishing Oloo Gai v. R., (1960) E.A.86.