The purpose of a voir dire examination in a criminal proceeding is to protect the right to a fair

trial which is a constitutional right under Art. 50 (1) of the Constitution of Kenya, 2010.

As a general rule, all persons are competent witnesses unless considered otherwise by the
court and a mental disability is not proof of incompetency.

Voir Dire examination serves to:

 Test the competence of a witness

 Test whether a witness understands the solemnity of taking an oath

These purposes of voir dire have been outlined in the case of Samuel Warui Karimi vs
Republic [2016] eKLR. To test the competency of a witness, the courts or any such authority
determines whether the witness is able to understand and answer the questions put out to
them. Voir dire is provided for under the part that provides for witness competency with s.
125 (1) of the Evidence Act bestowing the courts the power to determine a witness
competency where it states that:

“all persons shall be competent to testify unless the court considers that they are prevented
from understanding the questions put to them, or from giving rational answers to these
questions…”

The impairments that may render a witness incompetent under s. 125 (1) of the Evidence Act,
CAP 80 Laws of Kenya are tender years, extreme old age, disease (physical or mental) or any
similar cause. Sub-section 2 provides that mentally disabled persons are not incompetent to
testify unless their condition prevents them from understanding and answering the questions
put out to them.

A CHILD OF TENDER YEARS

Tender years have been provided as one of the factors that would render a witness
incompetent under s. 125 (1) of the Evidence Act. S. 19 of the Oaths and Statutory
Declarations Act, CAP 15 of the Laws of Kenya also provides that voir dire examination is
mandatory where a child of tender years is called as a witness. A provision that was also
acknowledged in the case of Johnson Muiruri vs Republic [1983] KLR 445. Where the
child does not understand the nature of an oath, they may give an unsworn statement (may
give evidence but not on oath) if they understand the importance of speaking the truth. In the
event where the child witness does not understand the nature of an oath and they give an
unsworn statement, the accused person shall not be liable to be convicted on such evidence
unless the testimony is corroborated as was held in the Muiruri Case (supra) Despite talking
about children of tender years, the two Acts of Parliament and the Children Act, 2022 are
silent on their definition. Consequently, the court in of Kibangeny Arap Korir v. Republic
[1959] EA 92 defined a child of tender years as any child who is fourteen years or below.
This definition of a child of tender years by the court in the Kibangeny case has subsequently
been upheld by other courts in dealing with the evidence of children. However, where a child
understands the nature of an oath, they may give a sworn statement and wilfully gives false
evidence, they would be guilty of the offence of perjury and is liable to the prescribed
punishment as is in accordance with s. 19 (2) of the Oaths and Statutory Declarations Act,
CAP 15 Laws of Kenya.

EXTREME OLD AGE

This has also been provided for as one of the factors that may render a witness incompetent
under s. 125 (1) of the Evidence Act. Old age is said to affect the thinking capacity of persons
and as such may render a witness incompetent. However, unlike with children of tender
years, the law and courts in Kenya are silent on the threshold for old age as a ground for
incompetency as a witness.

DISEASE (PHYSICAL OR MENTAL)

Illness, whether mental or physical, can be grounds on which a witness may be rendered
incompetent, provided it affects their ability to understand and answer questions that may be
put out to them. S. 125 (2) of the Evidence Act provides that mentally disabled persons or
‘lunatics’ are considered competent unless their condition affects their capacity to understand
and answer the questions that they may be asked.

CONCLUSION

In conclusion, all witnesses, even those that have been provided for under s. 125 (1) of the
Evidence Act, are competent, unless where the court considers that they are unable to
understand and answer the questions that they may be asked. The court, to come to a
conclusion that a witness is incompetent, may be guided by mental examinations on the
witnesses.