Ezekiel Oramat Sonkoy v Republic [2013] eKLR corroborated by the evidence of PW2 and PW3. The learned judge on first appeal on re-appraisal of the evidence expressed herself thus:“The interpretation by counsel of what the victim meant when she said “we never did anything” was that the appellant and the respondent did not have any sexual intercourse. I have considered those submissions in light of the entire testimony by the victim and that of the appellant and have taken the considered view that that statement by the victim should not be taken in isolation. The whole testimony taken together clearly shows that even on that first night, the appellant had intercourse with the victim and because of her age, she was defiled. I therefore refuse to buy into counsels' contention that there was no evidence of intercourse. Moreover, for the two months that the appellant and the victim were in an Eldoret home, they freely engaged in sex. It has been argued on behalf of the appellant that even if he had sex with the victim, the victim willingly gave herself to the appellant and that in the circumstances, it cannot be said that the appellant intentionally and unlawfully defiled the victim Under Section 42 of the Sexual Offences Act, No. 3 of 2006, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice. I think it is necessary to consider the provisions of Section 45 of the Sexual Offences Act in order to determine whether indeed the victim in this case consented to the acts of defilement committed over a 2-month period. First of all, there is evidence to show that despite the victim's age (an issue to be addressed shortly hereafter) the appellant made the victim to believe that she was of marriageable age, when he was aware that the victim was infact a Form 1 student at [particulars withheld] Secondary School. In effect, the appellant induced the victim into “consenting” to the act of defilement with that false promise that he would marry her. In my considered view therefore, the victim cannot be said, to have consented to the act of defilement......” We entirely agree with the learned judge on these findings which in effect mean that the charge sheet is not irregular in any way as the charge is supported by the evidence. In any event and considering the age of the complainant consent was not a necessary ingredient of the offence and needed not be proved. The appellant also complains that there was no “first report” of the incident, presumably to police. But PW2 testified that upon finding PW1 missing, and after initial enquiries, he made a report to the police and to the District Officer. The other issue raised is on reliance of the evidence of a child by the trial court. It is true that evidence of children must at all times be treated with utmost care by trial courts. Courts must be satisfied that children understand the nature of an oath if they are to give sworn evidence. Proper voire dire examination must be conducted and recorded by the trial court before evidence is taken. A general guideline on this was given by this court in Samuel Wahini v Ngugi Republic (Criminal Appeal No. 218 of 2007 (ur) which quoted Johnson Muiruri v Republic [1983] KLR 445 as follows:“We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are tendered as witnesses. In Peter Kiriga Kiune, Criminal Appeal No. 77 of 1982 (unreported) we said:“When in any proceeding before any court, a child of tender years is called as a witness, the court is required to form an opinion, on voire dire examination, whether the child understands the nature of an oath in which event his sworn evidence may be received. If the court is so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of http://www.kenyalaw.org - Page 4/6