[2017] KEHC 2717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 46 OF 2014

DICKSON MUCHANGI GUTETA................................APPELLANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION..............RESPONDENT

J U D G M E N T

1. The appellant was dissatisfied with the judgment of Embu Senior Principal Magistrate delivered on 6th August 2014. He was charged with attempted defilement contrary to Section 9(2) of the Sexual Offences Act No. 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was convicted of the main charge of attempted defilement and sentenced to serve ten (10) years imprisonment.

2. In the petition of appeal, the appellant challenges the conviction on grounds that it was based on contradictory and inconsistent evidence. Further that essential witnesses were not called to testify and further that the case was impeachable under Section 163 of the Evidence Act.

3. The counsel for the appellant filed supplementary grounds on 7/03/2016. He stated that the trial was defective as the trial magistrate did not record the language of the court. This renders the proceedings null and void because the appellant did not understand the language used in conducting the proceedings. It was further contended that the appellants constitutional rights were violated and that Section 200 of the Criminal Procedure Code was not complied with.

4. The appeal was argued by way of written submissions filed by the counsels for the parties. Messrs L. Mogusu represented the appellant while Ms. Brenda Nandwa represented the respondent.

5. The duty of the first appellate court was explained in the case of NJOROGE VS REPUBLIC [1987] KLR 19:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya v R [1957] EA 336, Ruwalla v R [1957] EA 570.

6. The evidence in this appeal may be briefly stated. The complainant aged 8 years was on her way to school on 8/11/2013 at around 8. 00 a.m. when she met the appellant. He got hold of her and dragged her to a coffee plantation. He then knocked her down and removed her clothes. The appellant then lay on the girl and covered her mouth using his hand. Th girl cried and attracted the attention of PW2 and PW3 who were walking on a foot path next to the coffee plantation.

7. The appellant on seeing the witnesses whom he knew before the incident ran away. The complainant was assisted by PW2 and PW3 to report the matter to the police and attend treatment at Kibugu Health Centre.

8. The issues arising from this appeal are as follows:

(a) Whether the appellant understood the language of the court in the proceedings.

(b) Whether lack of strict compliance with Section 200 of the Criminal Procedure Code renders the entire proceedings null and void.

(c) Whether the rights of defence under Section 211 of the Criminal Procedure Code was explained to the appellant.

(d) Whether the case was proved beyond any reasonable doubt.

9. By virtue of Article 50(2) of the Constitution any accused facing trial is entitled to use the language he understands the conduct of the proceedings. During the plea on 11/11/2013, there was interpretation of English to Kiembu as shown by the record.

10. On 3/11/2014 the clerk namely Susan Interpreted English to Kiembu and it is borne by the record. It is on the same day that the magistrate conducted the voire dire test on the complainant and formed the opinion that she understood the nature of oath and should give sworn evidence. The questions put to the child by the court and the answers were duly recorded. This confirms that the child understood Kiembu or that the interpreter made the required interpretation as the clerk interpreted of the “voire dire”test.

11. The child answered all the questions and exuded confidence which was part of the material the court relied on to form its opinion that she could give sworn evidence.

12. It was therefore not correct for the appellant to allege in his submissions that he child did not understand the language used by the court. Had that been the position, she would not have answered any of the questions put to her.

13. The four witnesses PW1, PW2, PW3 and PW4 testified on the same day the test was conducted, that is on 3/01/2014. PW1 and PW2 testified in Kiswahili in presence of the Kiembu interpreter. PW2 and PW3 testified in Kiembu which was the language the appellant understood as indicated in the proceedings right from the date of the plea.

14. On 24/06/2014, the investigating officer PW5 testified in Kiswahili. That is the only session that the court did not record the name of the interpreter. I take judicial notice that during criminal trials, the court always has a clerk who interprets the language of the court. The appellant did not complain during the trial which leads me to a conclusion that the proceedings were interpreted in Kiembu and that he understood them.

15. It is on record that the appellant gave his defence in Kiswahili. As such, he had no problem with either Kiembu or Kiswahili. On his own volition, he appellant chose to change from Kiembu to Kiswahili during his defence.

16. In the case of JOHN OUMA AWINO & ANOTHER VS REPUBLIC [201] eKLR which has similar facts, it was held:-

In this case, they expressly chose the language themselves and never complained about any change of it or their failure to follow the proceedings. We find and hold, in the circumstances, that there was compliance with the Constitution and we decline the invitation to declare the trial a nullity. That ground of appeal fails.

17. Section 200(3) of the Criminal Procedure Code gives guideline on how a succeeding magistrate in a case should proceed. It provides:-

200(3) “Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.”

18. This case was part heard by M. Wachira Chief Magistrate who heard four witnesses. She proceeded on transfer and the case was taken over by P. Biwott Senior Principal Magistrate who heard the last witness. The record does not show that the succeeding magistrate recorded that he complied with the provision of Section 200(3) of the Criminal Procedure Code.

19. The magistrate ought to have inquired from the accused his option of either starting the case de novo or proceeding from where the preceding magistrate reached and whether he wished to have any witness re- summoned. It would be in order to conclude therefore that the magistrate did not comply with the law in this regard.

20. In the case of JOSEPH KAMORA MARO VS REPUBLIC [2014] EKLR the court held that:-

''the position in law is that a trial magistrate taking over a case that is partly heard must is mandatorily obligated to inform an accused person of his right to recall witnesses. After an accused has been informed of his right,he /she may elect to have the witnesses recalled.''

21. The question which arises is whether failure to comply with the provision is fatal to the prosecution's case. This will of course depend on the extent that the evidence was affected among other things.

22. The first magistrate heard five witnesses who included three key witnesses and the arresting person who was sent to effect the arrest by the sub-area personnel. This evidence forms the bulk of the prosecution's case. The evidence of PW5 was restricted to receiving the appellant from the members of public, detained him at the station and later charged him with the offence.

23. The magistrate summarized the part played by PW5 that he re-arrested the appellant and referred the complainant the hospital and then charged the appellant. It is important to note that medical evidence was immaterial in this particular case.

24. The evidence which may be disregarded for non- compliance is minimal and would not have changed the outcome of the case. The appellant would still have been convicted with the evidence of the four (4) witnesses.

25. I find that the non-compliance with Section 200(3) of the Criminal Procedure Code did not affect the prosecution's case.

26. I have perused and evaluated the evidence of all the prosecution witness and did not find the applicability of Section 163 of the Evidence Act. The complainant and all other witnesses were credible witnesses according to the trial magistrate. There was no basis laid by the appellant to impeach the evidence of any witness. I find no factual or legal basis in that ground.

27. The appellant said his constitutional rights were violated. However, he did not explain how this was done or which particular right was violated. I find no material to interrogate the merit or otherwise of this ground and it is hereby struck out.

28. From the evidence on record, it has been established that the complainant, PW2 and PW3 recognized he appellant whom they knew before the incident. He was their neighbour at Kangeta village where the scene is situated. The incident happened during road day light and the conditions were favourable for positiveidentification. PW2 even conversed with the appellant before he ran away. She had inquired from the appellant as to why he was doing that to which he replied that he did not care even if the child was to die.

29. PW1 explained that the appellant met with her as she was going to school. He got hold of her and dragged her to the coffee plantation. After knocking her down, he removed her clothes and was on top of her when PW2 and PW3 arrived. To prevent the complainant from screaming. All these acts put together are evidence of an “overt act” which was purposed to the commission of the offence of defilement. However, the appellant was interrupted along the way and did not accomplish his mission.

30. The magistrate evaluated the evidence and came to the conclusion that it proved the charge of attempted defilement contrary to Section 9(2) of the Sexual Offences Act. The age of the child was eight years as she told the court. PW2 and PW3 who knew her before the incident confirmed that the complainant was a child.

31. He removed her clothes and lay on her as well as exposing her privacy and touching her with his body as he lay on her. The offence was proved in my considered opinion.

32. I find that the conviction was based on cogent evidence. The sentence was within the law as provided for by Section 9(2) of the Act. The conviction and sentence are hereby upheld.

33. The appeal has no merit and it is hereby dismissed.

34. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF OCTOBER, 2017.

F.MUCHEMI

JUDGE

In the presence of:-

Ms. Muriuki for Mogusu for Appellant

Ms. Manyal for Respondent