[2022] KEHC 13462 (KLR)

Birech v Republic (Criminal Appeal 178 of 2019) [2022] KEHC 13462 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13462 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 178 of 2019

RN Nyakundi, J

October 5, 2022

Between

Carolly Cheruiyot Birech

Appellant

and

Republic

Respondent

(Being an Appeal from the original conviction and sentence in Eldoret Chief Magistrate’s Criminal Court Case No. 165 of 2018)

Judgment

1. The appellant was charged with the offence of attempted defilement contrary to section,9(1) (2) of the Sexual offences Act No 3 of 2006. The particulars are that the accused on July 27, 2018 at [Particulars Withheld] Sub County, within Uasin Gishu County unlawfully and intentionally attempted to cause his penis to penetrate the vagina of VK a child aged 12 years. He faced an alternative count of committing an indecent act with a child contrary to section 11(1)(2) of the Sexual offences Act.

2. The prosecution called seven witnesses in support of its case. The appellant had no witnesses and gave testimony in his defence. Upon considering the evidence and the testimonies of the witnesses the trial court found him guilty of count one and sentenced him to 10 years’ imprisonment

3. Being dissatisfied with the decision of the trial court the appellant instituted the present appeal vide a petition of appeal filed on November 21, 2019 based on the following grounds;(1)That the trial court erred in law and in fact as it failed to accord this case a fair trial(2)That (I) am aggrieved that the trial court erred in law and in fact as it failed to hold that one witness’ evidence was inconsistent.3. That (I) am aggrieved that the trial court erred in law and in fact as (she) failed to observe that the evidence of identification was not proved to connect the appellant to the offence.(4)That the trial court erred in law and in fact as it failed to observe that the witness evidence was just hearsay.(5)That the trial court erred in law and in fact as it failed to observe that the witness evidence was uncorroborated.(6)That the trial court erred both in law and in fact as it failed to accord the appellants’ defence evidence a consideration.

Appellant’s case 4. The appellant submitted that he was not subjected to a fair trial. He contended that as per the charge sheet he was arrested on July 27, 2018 and arraigned in court on July 31, 2018, and that the four days he was held in custody was unconstitutional. His rights under article 49 of the Constitution were violated as the police did not inform him of the reason for his detention and he was not arraigned on July 30, 2019 which was a Monday. Further, that the police did not have an order to continue detaining him.

5. The appellant submitted that all the seven witnesses were hostile and unreliable. PW1s evidence was full of irregularities as she admitted that her evidence was hearsay. He stated that the complainants’ evidence was also inconsistent as she could name all the other teachers except the sunday school teacher. That the evidence of the complainant struggling with the appellant to the extent of cutting his watch was impossible given her age and that she was naked compared to a man of the appellant’s age. The complainant stated that she knew the appellant since she was born but on the contrary they were neighbours for five years.

6. The appellant questioned the investigations and stated that the investigating officer relied on hearsay in his investigations. He claimed that the girl was crying and had visible swellings which was not proved by the medical expert.

7. The appellant submitted that the offence was not proven beyond reasonable doubt. He listed the ingredients of the offence of defilement, that is; identification, penetration and age and submitted that the ingredients that apply to attempted defilement were not proved. The identification was unsafe as it relied on the evidence of children.

8. The appellant maintained that the appellant had a romantic relationship with the complainants’ mother and when he claimed Kshs 500/- from her the response was the said allegation. Further, that the witnesses were coached and the trial court disregarded this evidence when he raised it in his defence.

Respondents’ case 9. There are no submissions on record for the respondent.This court being a first appellate court is alive to and takes into account the principles laid down in the case ofOkeno v Republic [1972] EA 32 where the Court of Appeal for Eastern Africa stated that:'An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v R 1975) EA 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M Ruwala V R [1957] EA 570. It is not the junction of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see (Peters v Sunday Post 1978) EA 424. '

Issues for determination (1)Whether the appellant was accorded a fair trial

(2)Whether the prosecution proved its case to the required standard

Whether the appellant was accorded a fair trialThe appellants’ contention with regards to a fair trial is that he was detained form four days which was unconstitutional. The appellant was arrested on July 27, 2018 and arraigned in court on July 31, 2018. Article 49 of the Constitution states as follows;

Rights of arrested persons(1)An arrested person has the right—(a)To be informed promptly, in language that the person understands, of—(i)the reason for the arrest;(ii)the right to remain silent; and(iii)the consequences of not remaining silent;(b)To remain silent;(c)To communicate with an advocate, and other persons whose assistance is necessary;(d)Not to be compelled to make any confession or admission that could be used in evidence against the person;(e)To be held separately from persons who are serving a sentence;(f)To be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;(g)At the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and(h)To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.(2)A person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months. 10. I find no infringement on his right as the appellant could not have been arraigned over the weekend. The appellant was held for an extra weekday which was reasonable in the circumstances.

11. I see the elements of a fair hearing to comprise the following situational analysis by the trial court;1. Where the accused’s legal rights are safeguarded and respected by law.2. Where a lawyer of the accused’s choice looks after his defence unhindered.3. Where there is a compulsory attendance of witnesses, if need be.4. Where allowance is made of a reasonable time in the light of all prevailing circumstances to investigate, properly prepare and present one’s defence.5. Where an accused’s witness, are not intimidated or obstructed in any improper manner.6. Where no undue advantage is taken by the prosecutor or anyone else or by reason of technicality or employment of a state as an engine on injustice.7. Where witnesses are permitted to testify under rules of court within proper bounds of judicial discretion and under the law governing testimony of witnesses.8. Where litigation is open, justice done, and justice seen to be done by those who have eyes to see, free from secrecy, mystery and the mystique. See the Principles Of Constitutional Law By CharlesMwaura Law Africa Publishing Kenya Ltd 2014 page 71.

12. The court in S v Shaik [2007] ZACC 19 2008 (2) SA 208 (CC); 2007 (12) BCLR 1360 (CC)the court underscored as follows: 'The right to a fair trial requires a substantive, rather than a formal or textual approach. It is clear also that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment. A fair trial also requires fairness to the public as represented by the State. It has to instil confidence in the criminal justice system'

13. I have evaluated and scrutinized the record of appeal weighing it against the memorandum of the appellant as read together with the submissions in support of the appeal. I am satisfied that the trial court followed the correct procedure under the Constitution in article 50 on fair right trials and the enabling statute. I find no exceptional circumstance that require this court to make a finding that the appellant right to a fair trial was infringed or violated in the course of the proceedings. These grounds therefore fails.

14. I find that the appellant was subjected to a fair trial.

Whether the prosecution proved its case to the required standard 15. The law does envisage two types of burden of proof; a) the legal burden of proof b) the evidential burden clearly these remarks are directly in point as deduced from the learned author Fidelis Mwadialo SAN in his book Modern Nigerian Law of Evidence University of Lagos press (1990) in which he observed as follows: 'That the term ‘burden of proof’ is used in two different senses. In the first sense, it means the burden or obligation to establish a case. This is the obligation which lies on a party to persuade the court either by preponderance of evidence, or beyond reasonable doubt that the material facts which constitute his whole case are true, and consequently to have the case established and judgment given in his favour. The other meaning of the expression ‘burden of proof’ is the obligation to adduce evidence on a particular fact or issue. This evidence in some cases, must be sufficient to prove the fact or issue, while in others, all that is required is for it to be enough to justify a finding on that fact or issue, in favour of the party on whom the burden lies. It is called ‘the evidential burden’. This is the sense in which the expression is more generally used.'

16. In the case of Miller v Minister of Pensions Lord Denning had this to say 'the burden of proof need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadows of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence, of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt. But nothing short of that will suffice.'

17. Having looked at the record and the submissions from the inferior court I am persuaded that the key principles in the above cases were followed to the letter by the learned trial magistrate. The facts in this case are not in dispute.

18. The appellant herein was charged under section 9(1) and (2) of the Sexual Offences Act No 3 of 2006. The said provision provides as follows:(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.(2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.

19. It follows that the prosecution must prove the ingredients of defilement (age, positive identification) except penetration and the steps taken by the appellant to execute the defilement which were unsuccessful. Section 388 of the Penal Code defines attempt in the following terms:(1)Where a person intending to commit an offence begins to put his intentions into execution by means adopted to its fulfilment manifests his intentions by some avert act but does not fulfil his intentions to such an extent as to commit the offence, he is deemed to attempt to commit an offence.(2)It is immaterial except so far as regards punishment whether the offender does all that of necessary on his part for completing the commission of the offence or whether the complete is prevented by circumstances independent of his will or whether he desists of his own motion from further prosecution of his intention.(3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

20. It was held in Mwandikwa Mutisya v R [1959] EA 18 and Mussa Said v R [1962] EA 454, in accordance with the definition of attempt in section 388 of the Penal Code, that the test for attempt requires a demonstration of an intention to commit the offence and overt act towards the commission of the offence which is sufficiently proximate or immediately connected to the attempted offence.

21. The age of the complainant was proven as her mother produced her health card as exhibit 3. This was adequate proof of age. The appellant was positively identified by way of recognition as he was a neighbour to the complainant. The evidence on identification was corroborated by the sister of the complainant who found the accused in the act. The presence of a destroyed watch at the crime scene was sufficient evidence of a struggle and corroborated the complainants’ testimony that the appellant had attempted to defile her.

22. Baring this matter in mind as an appeal court conducting a review of the trial magistrate decision I conclude that there are no ground formulated by the appellant to disturb the findings on conviction and sentence. It is necessary at this point to dismiss the appeal in its entirety.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5TH DAY OF OCTOBER, 2022. ............................R NYAKUNDIJUDGE