[2014] KEHC 780 (KLR)
The court held that the Sexual Offences Rules of Court, 2014 empower the court to order the collection of DNA samples from an accused person where a child is alleged to have been born as a result of the offence, regardless of whether the accused has already been arraigned. The applicant's argument that such an order...
Source-derived case information.
- Citation
- [2014] KEHC 780 (KLR)
- Parties
- Applicant: B M M; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 343 of 2014
- Procedural Posture
- Criminal Revision / Order on Revision
- Outcome
- Application for revision dismissed. Directions issued for sample collection and possible reinstatement of bail.
- Judges
- LN Mutende
- Legal Topics
- Sexual Offences, Incest, Bail and Bond, Dna Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B M M
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Order on Revision
Legal Issues
- 1 Whether the trial court was correct in cancelling the applicant's bail due to non-cooperation with DNA sample collection order.
- 2 Whether the accused can be compelled to provide DNA samples after arraignment for purposes of establishing paternity in a sexual offence case.
- 3 Whether compelling the accused to provide DNA samples violates constitutional rights.
Ratio Decidendi
The court held that the Sexual Offences Rules of Court, 2014 empower the court to order the collection of DNA samples from an accused person where a child is alleged to have been born as a result of the offence, regardless of whether the accused has already been arraigned. The applicant's argument that such an order is unconstitutional or that investigations should have been complete at arraignment is contrary to the law. The trial magistrate was justified in cancelling bail due to the applicant's non-cooperation, as this conduct indicated a likelihood of absconding. The court directed that the matter be mentioned before the trial magistrate for a proper order under the Sexual Offences...
Court Disposition
Application for revision dismissed. Directions issued for sample collection and possible reinstatement of bail.
Orders
- The matter to be mentioned before the trial magistrate for a proper order under the Sexual Offences Rules of Court, 2014.
- The accused shall be escorted to the nearest hospital for collection of required samples.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL REVISION CASE NO. 343 OF 2014
B M M …………..……………………………….APPLICANT
VERSUS
REPUBLIC ………………………….……...RESPONDENT
(Being a Revision from the order of Machakos Chief Magistrate’s Court Criminal Case No. 126 of 2014 by Hon. T.B. Nyangena, Ag. PM on 5 /12/2014 )
ORDER ON REVISION
1. Pursuant to a letter dated the 5th December, 2014 from the firm of Mutinda Kimeu and Company Advocates, I called for the record of proceedings in the Subordinate Court presided over by the Hon. T.B. Nyangena Ag. Principal Magistrate in order to satisfy myself of correctness, legality and propriety of its order dated the 5th of December, 2014.
2. The accused person is charged with Incest contrary to Section 20(1) of the Sexual Offences Act 2006.
3. Particulars thereof being that on diverse dates between the month of November, 2013 and December, 2013 in Kathiani District within Machakos County, intentionally and unlawfully caused penetration of his penis into the vagina of M M Ma child aged 14 years who to his knowledge is his step-daughter.
4. The charge as framed was read to the accused on the 5th August, 2014 whereby he admitted the same. The prosecution sought time to present facts of the case. When the case came up on the 6th August, 2014 he changed plea. Having denied the charge the case was scheduled to be heard at a later date.
5. The matter came up on the 5th December, 2014 when the Court Prosecutor notified the court that he was not ready to proceed as a child had been born out of the incestuous relationship. He sought an order of the court to have the accused present himself to the Police Station Kathiani for purposes of being escorted to the nearest hospital for samples to be taken for Deoxyribonucleic Acid (DNA) profiling. Counsel for the accused responded by stating that a formal application be filed. In view of that response the court deemed it fit to cancel bail terms given. The trial magistrate noted that there was a likelihood of the accused absconding.
6. There is a replying affidavit deponed by the accused on record. He deposed that he opposed the application to have samples taken from him by force as it is presumed that at the point of arraignment in court investigations were complete; there must have been sufficient evidence to sustain the charge without the DNA test.
7. Further, he stated that providing samples for DNA profiling would be assisting the police to prove their case which is unconstitutional and in breach of his rights.
8. Article 49(1) (h) provides:-
“an arrested person has the right –
to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”
9. The accused was released on a cash bail of 50,000/=. No conditions were imposed. However, when the accused declined to cooperate following an application made by the prosecution, the learned trial magistrate formed an opinion that he was likely to abscond hence cancellation of the bond.
10. The learned Prosecuting Officer did not point out the law that empowered him to make the application. However, Rule 11 of the Sexual Offences Rules of Court, 2014 provides that:-
“where a person has been accused of committing an offence under the Act, and it is alleged that a child has been born alive as a consequence of the commission of the offence, the court may order the collecting of such samples in the form provided in the schedule as may be required from the accused person and such samples may undergo such tests as the court may order to determine whether or not the child is the result of the commission of the alleged offence”
11. It is apparent that the court has the power to order an accused person to provide samples following an allegation that a child has been born as a consequence of the offence. It is not stated that the order shall be made prior to the person being arraigned in court. Therefore the averments of the accused person are erroneous and contrary to the law.
12. It is evident that he proved to be a difficulty person hence the order made by the court.
13. I therefore direct that the matter be mentioned before the learned trial magistrate as scheduled for a proper order to be made by the court pursuant to the Sexual Offences Rules of the Court 2014. The accused shall then be escorted to the nearest hospital for collection of the samples required. Thereafter, an application can be made for reinstatement of bail.
14. It is so ordered.
DATED, SIGNED and DELIVEREDatMACHAKOS this 19TH day of DECEMBER, 2014.
L.N. MUTENDE
JUDGE