[2023] KEHC 25007 (KLR)

EKC v Republic (Criminal Appeal E081 of 2022) [2023] KEHC 25007 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25007 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E081 of 2022

SM Mohochi, J

November 9, 2023

Between

EKC

Appellant

and

Republic

Respondent

(Appeal against the conviction and sentence in CMCC SO No. 03 of 2018 - Eldoret, Republic v Evans Kiplagat Chelimo, delivered by C. KUTWA, S.P.M. delivered on 31. 10. 2019. )

Judgment

Introduction 1. The appellant was charged, tried, found guilty, convicted and sentenced to ten (10) years imprisonment for the offence of “Defilement” contrary to Section 8(1) of the Sexual offences Act No 3 of 2006.

2. Being dissatisfied and aggrieved of the conviction and sentence, the appellant preferred this Appeal on the following four (4) grounds;a.Violation of the appellant’s right to fair trial under Article 50 (2) (e) 25 (a), 27, 159 (2), (6), 47 of constitution 2010 and section 37 and 108 of the CPC.b.Defective charge sheet, conviction and sentence under section 214 (1) and 169 of the CPC.c.The trial court failed to recognize that, the Prosecution did not prove its case beyond any reasonable doubt.d.Disregard of the appellant’s defence alongside the Prosecution’s evidence.

3. On the 18th January 2023 the parties consented to the Appeal being heard on the basis of the filed written submissions without need for highlighting.

4. The Appellant filed his handwritten submissions on the 12th of January 2023 while the Respondent filed its written submissions on the 13th January 2023.

The Appellant’s Case 5. The Appellant submits that his fair trial rights were contravened when he was arrested and held in excess of the 24 hours to be arraigned before court having been arraigned on Tuesday the 16th January 2018 having been arrested on Sunday the 14th of January 2018 and that the Prosecution did not offer any explanation for the delay thus infringing upon his Article 49 (21) (f) and section 30 and 108 of the rights.

6. The Appellant submits that the charge sheet was defective to the extent that he was charged with an offence under section 8(3) which presupposes a victim being above 12 years and below 17 years whereas the evidence indicate that the complainant was 17 years old and that section 137 of the Criminal Procedure Code prescribes the rules of framing charges that was not adhered to and that the same ought to have been amended. The Appellant relies on The Case of Simeon Wanjala Vs R Machakos HCRA 59 (2011).

7. The Appellant contends in support of his third ground that, the Prosecution dud not prove its case beyond reasonable doubt that by virtue of PW1, PW2, PW3 and PW4 alluding to a pregnancy as a result of the alleged defilement that element ought to have been proven by way of DNA to be conclusive. That when the matter was moved from Hon C. Kutwa to Hon Nyaberi Section 200 of the Criminal Procedure Code was never complied with and that the trial court never afforded him the opportunity to ether commence denovo hearing or continue from where the matter had reached. The Appellant sought reliance on the Court of Appeal case of Bob Ayub, Alias Edward Gabriel Mbwana alias Robert Mandiga Vs R CRA 106 (2006) which elaborated the procedure applicable by section 200(3).

8. Finally, the Appellant submits that, the Trial Court did not consider his defence case of the case having been framed against him from a grudge between him and the complainant’s mother over cows wandering on to his land.

9. The Appellant thus prays that his Appeal be allowed, his conviction be set aside and he be set free.

The Respondent’s Case 10. The Respondent opposes the Appeal in its entirety and submits in its written submissions dated 11th January 2023 that, the Prosecution proved its case beyond reasonable doubt. In response to the grounds raised by the Appellant, the Respondent submits generically on grounds nos. 1,2 and 3, as follows;a.In a case of defilement, the onus is the Prosecution to establish that there was penetration, that the victims age is proved and the identity of the perpetrator.b.In respect of the first ingredient of penetration, the Prosecution relied on the evidence of the victim and the mother. The testimony of the victim was corroborated by her mother and the evidence of PW-1, a doctor. Her mother found the accused defiling the complainant on 11th January, 2018. The findings of PW-1, there was presence of pregnancy and spermatozoa an indication of penetration. She had a whitish discharge from the cervix. On examination of libia minora and majora, the doctor found it to be normal. In light of the medical evidence, Prosecution proved the ingredient of penetration marked the P3 Form as Exhibit no. 1 in support of penetration.c.The age of the complainant/victim was proved as the prosecution produced a birth certificate that shows the minor was born on 17th June, 2000. The minor was about 17 years at the time of incident. This therefore means that the second ingredient was proved to the requires standard of proof.d.As regards to the identity of the perpetrator, the prosecution relied on the testimony of the complainant which was very firm and her mother. The accused was found by the mother, in the act defiling the victim and the victim pushed her and ran away. The Appellant was not a stranger to the victim. She knew the Appellant prior to the incident therefore had enough opportunity to identify the Appellant. She described the Appellant very well: where he worked, at what time he worked, where he used to be during the day, what the Appellant wore on that day, the incident took place in the morning and where and with whom the Appellant lived with. That this is sufficient proof for identity of the perpetrator. The Respondent therefore strongly oppose these grounds of appeal.e.With regards to ground no 4, the Respondent submit that, An alibi goes to identification of the appellant as the person who committed the offence. That the appellant in his unsworn statement, denied committing the offence. He stated that he was not at the scene and was grazing cows on 11. 11. 2017. The accused did not even defend the incident that took place on 11. 1.2018 when the mother to the victim found him defiling the victim placing him at the scene. The accused did not call any witness in support of his testimony. His defence was an afterthought and did not displace the prosecution case. The law today is that it is up to the prosecution to displace any defence of an alibi and show that the accused was present at the place, and at the time the offence was committed by the accused or his accomplices which the prosecution has proved beyond reasonable doubt.

11. In conclusion the Respondent submit that it has proven its case beyond reasonable doubt and that the conviction was merited and that, the sentence of 10 years meted out was lawful taking into account that the complainant was 17 years of age the law prescribes a sentence of a term of not less than 15 years.

Analysis and Determination 12. The duty of the first appellate court in criminal cases was restated in the case of Charles Mwita –vs- Republic, C. A. Criminal Appeal No. 248 of 2003 (Eldoret) (unreported) where the Court of Appeal, at page 5, recalled that;“In Okeno v R [1972] E.A. 32 at page 36 the predecessor of this Court stated: - “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya –v- R [1957] EA. 336) and to the appellate court’s own decision on the evidence”.

13. Being a 1st Appeal Court I must, weigh conflicting evidence and draw conclusions, (Shantilal M. Ruwalla –v- R [1957]EA 570) it is not the function of a 1st Appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower courts findings and conclusion; 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, [1958] E.A. 424. ”

Trial Court Proceedings 14. The Prosecution called four (4) witnesses in support of their case and produced two (2) exhibits being a P3form (PEXH1) and a birth certificate (PEXH2) of the victim.

15. PW1 Dr. Wilfred Kimosop a doctor attached to the Kapsowar Mission hospital testified under oath how on the 15th January 2018, he examined the victim on referral from the OCS Kapsowar Police Station to determine her pregnancy status that was affirmed from the examination. The witness narrated the preliminary history of the victim having been lured into sex by her neighbor who impregnated her.

16. It was the witness testimony that the victim had eloped to the appellant’s house and that she was seventeen and a half (17. 5) years old as she was with her birth certificate during examination. The witness filed the P3form which he produced in evidence.

17. In cross-examination the witness asserted that the victim had informed him she had gone to live with her boyfriend and that he was unaware if the appellant was the boyfriend to the victim.

18. PW2 SJK gave her sworn evidence stating that she was nineteen (19) years old, born on 16. 6.2000, presenting her birth certificate in court.

19. She testified she was a student at [Particulars Witheld] and that on 11. 11. 2017, She was sent by her mother to collect “pawpaw” bought from the appellant where the appellant grabbed and pushed her on his bed, removed her clothes and defiled her.

20. The witness further testified how on the 11. 1.2018 she went to see the accused to inform him that she was pregnant and the appellant defiled her the second time and was found in bed by PW2’s mother, the appellant pushed her mother and he ran away.

21. She narrated how her mother was very angry constraining her from returning home until the 14. 1.2018 when her mother asked her to go back home where she disclosed her pregnancy, she and the appellant were arrested and taken to Arror Police Post before being escorted to the Arror Mission Hospital for examination where her pregnancy was confirmed.

22. The witness further disclosed that she conceived from the defilement in 2017 while 17 years of age, and gave birth to a child on 21. 7.2018.

23. In Cross-examination by the appellant, the witness re-affirmed that she was defiled twice on 11. 11. 2017 and 1. 1.2018. And on 11. 11. 2017 she had gone to collect pawpaw from appellant who had a plantation and he called her and took her to his house, she did not scream because he told her he loved her.

24. That the clothes he removed were not in court. she did not tell her mother on 11. 11. 2017. She found them in bed on 11. 1.2018. After the pregnancy the appellant lied that he was young to marry her.

25. The witness narrated how the appellant asked her to lie and threatened her at the police station. That there were no people in the compound, the appellant was a National Police Reservist and a neighbor who used to work at night and was always at home during the day.

26. She was wearing a blouse and a shirt; the appellant was wearing a jungle shirt. The incident took place in the morning. The appellant stays in the same compound with his father. She restated the dates when she was defiled and where she was taken to hospital.

27. PW3 RK, a farmer, gave sworn testimony both in English and keiyo that PW2 (victim) is her daughter, the appellant, E is a neighbor.

28. That on 11. 11. 2017 she was at home and went to look for pawpaws and bought pawpaws from the appellant’s father, carried some pawpaw and left others. That on the same day she asked PW2 to go and collect the remaining pawpaws.

29. That on 11. 1.2018 she sent PW2 and when she stayed for long she decided to follow her and found the accused and PW2 on the bed having sex. The appellant pushed her and ran away. PW2 also ran away and decided to tell her husband having realized that PW2 was pregnant.

30. A report was made at Arror Police Post and when PW2 went for examination it was confirmed that she was pregnant. That PW2 told her on 14. 1.2018, that the appellant had defiled her twice.

31. The witness narrated that PW2 was 17 years old at the time of defilement. It is the police officer who took her to hospital. The Appellant and PW2 were arrested on 14. 1.2018, PW2 was a student at [Particulars Witheld], class seven, born on 17. 6.2000. the witness has no dispute with the appellant.

32. On cross-examination the witness restated the facts in her evidence in chief on the events of 11. 1.2018 how she found the appellant with PW2 on the bed, she screamed and the appellant pushed her away. That she did not witness the incident on the 11. 11. 2017.

33. The appellant’s compound has houses and she did not see any neighbor, the nearest house is about 500 m from the appellant’s compound. Appellant is a police reservist. She went to the shamba and collected my papaws and went and informed her husband. The appellant has pawpaws, however she bought the pawpaws from the appellant’s father.

34. PW4 PC Koech from Arror Police Post gave sworn evidence that on 12. 1.2018 members of the public brought PW2 to the station. They made a report of defilement and he commenced investigations and on 14. 1.2018 he arrested the appellant in his house. At the time he was sleeping with PW2 who was 17 years old. He produced the birth certificate in court as — PEXH 1.

35. In Cross-Examination PW4 recalled finding the appellant on the day of arrest, we found you with the child. The child was examined. He did not know if the appellant was examined. He was not present when PW1 was taken to hospital. He did record his statement.

36. The prosecution closed its case, the Appellant was found with a case to answer and placed to his defense, electing to give unsworn evidence

Defense case 37. DW1 the Appellant from Arror area, stated that he was charged with defilement on 16. 1.2018. That on 11. 11. 2017 he was grazing his cows and, in the evening, he went home. On the way he saw RK cows in his land. It is PW2 who was looking after the cows. When he asked her, she ran home and told her mother R. Later the appellant went and made a report at Arror Police Post.

38. The appellant was shocked on 14. 1.2018 to be arrested and taken to Kapsowar Police Station where it was alleged that he defiled PW2. He denied defiling PW2.

39. This Court has considered evidence adduced and submissions by the parties and in line with the decision in the case of Fappyton Mutuku Ngui V R [2012] eKLR framed issues for determination as follows;a.Was the Appellant’s fair trial rights, contravened when he was arrested and held in excess of the 24 hours?b.Was the charge sheet fatally defective?c.Was the witness evidence manifestly insufficient, inconsistence and uncorroborated?d.Did the trial court fail to consider the appellant defense evidence?e.Was the evidence of identification and recognition inconclusive?f.Did the learned trial magistrate fail to consider the Defense case?

40. Before I delve into the evaluation of the evidence, I shall first deal with the Appellant’s Submission that, he was arrested on Sunday the 14th of January 2018, and arraigned in court on Tuesday the 16th January 2018, and for seven (1) day he was illegally detained in police custody without being arraigned before court and from the perusal of the record, it is evident that there were no court orders sought by the investigation officer to continue detaining him for more and further investigations which raises the issue of violation of Appellant’s right under Article 49 and 50 of the Constitution.

41. Article 165(6) and (7) bestows supervisory jurisdiction in this court which is enjoined to, promote the purposes, values and principles of the constitution, and to interpret it in such a way that the interpretation: advances the rule of law, develops the law and contributes to good governance failing which, then the person who caused the arrest and detention has a duty to explain the delay and persuade the court that in any event the person has been brought before court as soon as reasonably practicable. The burden of proving that such a person has been brought to court as soon as is reasonably practicable rests on the person who alleges that the provisions of the constitution aforesaid have not been violated.

42. Article 49(1), (f)(g) and (h)- provides for the Rights of an arrested person to include the rights to;(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 Constitution of Kenya, 2010(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.

43. Article 50 of the Constitution underscores the right to a fair hearing and provides that:(2)Every accused person has the right to a fair trial, which includes the right—(k)to adduce and challenge evidence

44. Section 108 of the Criminal Procedure Code provides for, Person arrested to be brought before court without delay the police officer or other person executing a warrant of arrest shall (subject to the provisions of section 103 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce that person.

45. Section 36A of the Criminal Procedure Code provide for the procedure to extend Pre-Remand by court (1) Pursuant to Article 49(1) (f) and (g) of the Constitution, a police officer shall present a person who has been arrested in court within twenty-four hours after being arrested.(2)Notwithstanding subsection (1), if a police officer has reasonable grounds to believe that the detention of a person arrested beyond the twenty-four-hour period is necessary, the police officer shall—(a)produce the suspect before a court; and(b)apply in writing to the court for an extension of time for holding the suspect in custody.(3)An application under subsection (2) shall be supported by an affidavit sworn by the police officer and shall specify—(a)the nature of the offence for which the suspect has been arrested;(b)the general nature of the evidence on which the suspect has been arrested;(c)the inquiries that have been made by the police in relation to the offence and any further inquiries proposed to be made by the police; and(d)the reasons necessitating the continued holding of the suspect in custody.(4)In determining an application under subsection (2), the court shall consider any objection that the suspect may have in relation to the application and may—(a)release the suspect unconditionally;(b)release the suspect subject to such conditions as the court may impose to ensure that the suspect— (i) does not, while on release, commit an offence, interfere with witnesses or the investigations in relation to the offence for which the suspect has been arrested; (ii) is available for the purpose of facilitating the conduct of investigations and the preparation of any report to be submitted to the court dealing with the matter in respect of which the suspect stands accused; and (iii) appears at such a time and place as the court may specify for the purpose of conducting preliminary proceedings or the trial or for the purpose of assisting the police with their inquiries; or(c)having regard to the circumstances specified under subsection (5), make an order for the remand of the suspect in custody.(5)A court shall not make an order for the remand in custody of a suspect under subsection (5)(c) unless—(a)there are compelling reasons for believing that the suspect shall not appear for trial, may interfere with witnesses or the conduct of investigations, or commit an offence while on release; (b) it is necessary to keep the suspect in custody for his protection, or, where the suspect is a minor, for his welfare;(c)the suspect is serving a custodial sentence; or(d)the suspect, having been arrested in relation to the commission of an offence, has breached a condition for his release.(6)The court may, for the purpose of ensuring the attendance of a suspect under subsection ((4)(b)(ii) or (iii), require the suspect— (a) to execute a bond for such reasonable amount as the court considers appropriate in the circumstances; and (b) to provide one or more suitable sureties for the bond.(7)Where a court makes an order for the remand of a suspect under subsection (4)(c), the period of remand shall not exceed thirty days.(8)A police officer who detains a suspect in respect of whom an order has been issued under subsection (4)(c) may, at any time before the expiry of the period of remand specified by the court, apply to the Court for an extension of that period. (9) The court shall not make an order for the extension of the time for remand under subsection (8) unless it is satisfied that having regard to the circumstances.

46. Section 37 of the Criminal Procedure Code, Obligates the Police to report apprehensions that, Officers in charge of police stations, shall report to the nearest magistrate, the cases of all persons arrested without warrant within the limits of their respective stations, whether those persons have been admitted to bail or not.

47. Section 36A. Remand by court (1) Pursuant to Article 49(1) (f) and (g) of the Constitution, a police officer shall present a person who has been arrested in court within twenty-four hours after being arrested.(2)Notwithstanding subsection (1), if a police officer has reasonable grounds to believe that the detention of a person arrested beyond the twenty-four-hour period is necessary, the police officer shall— (a) produce the suspect before a court; and (b) apply in writing to the court for an extension of time for holding the suspect in custody.(3)An application under subsection (2) shall be supported by an affidavit sworn by the police officer and shall specify— (a) the nature of the offence for which the suspect has been arrested.

48. The Following Provisions of the Constitution are worthy to recall, Articles 3(2), binds every person with the obligation to respect, uphold and defend the Constitution, Article 10, enshrines the national values and principles of governance that bind all State organs, State officers, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions, Article 232 (1) provides the values and principles of public service to include— (a) high standards of professional ethics.

49. The Appellant’s Charge sheet, in the trial court, was approved and certified on the 16th January 2018, by an officer in the Office of the Director of public Prosecution clearly ignoring the fact that the Appellant had been illegally detained for One (1) Extra day.

50. Upon Arraignment for plea taking, the trial court failed to inquire on the apparent detention exceeding 24 hours in police custody, the Prosecution Counsel, a public officer, failed to elaborate or explain the reason for the prolonged detention to the court before plea was taken.

51. The Constitutional tenets are binding to all, and as such, the requirement of arrest and arraignment of criminal suspects before court within 24 hours, and where prolonged detention is necessary, the seeking-of and receipt-of, necessary court orders, to enable conclusion of investigations is non-negotiable and cannot be casually treated.

52. The Respondent did not deem it necessary to respond to this ground of Appeal.

53. The fair trial guarantees flow, include and transcend from the rights of an arrested person and any contravention thereof, would contaminate the entire trial leading to declaration of a mistrial as this court finds.

54. This court finds that the Appellant’s one-day incarceration period at the Kapsowar police station from the 15th January 2018, to the 16th January 2018 constituted illegal detention and a gross contravention of the Appellant’s fundamental rights.

55. In the case of Mohamed Feisal& 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR Justice Nyakundi R while citing Keroche Industries Ltd V Kenya Revenue Authority and 5 others 2007 2 klr the court held as follows“one of the ingredients of the rule of law is certainty of law. Surely the most focused deprivations of individual interest in life, liberty or property must be accompanied by sufficient procedural safeguards that ensure certainty and regularity of law. This is a vision and a value recognized by our constitution and it’s an important pillar of the rule of law. Enforcing the law and maintaining public order must always be compatible with respect for the human person. Under article 73(a) and (b) of the constitution its provided that authority assigned to a state officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the constitution, demonstrates respect for the people, brings honour to the nation and dignity to the office, promotes public confidence in the integrity of the office and vests in the state office the responsibility to serve the people, rather than the power to rule them”.Further holding that, the yardstick that police officers are meant to achieve in exercising their powers under the National police service Act and the criminal procedure code. To arrest, detain or investigate must be carried out within constitutionally permissible parameters.

56. This Court is persuaded that a proper inquiry relating to the 24 hours Pre-trial police incarceration outside the parameters of the law must be undertake prior to and as a precursor of, a fresh criminal trial.

57. If the Trial Court finds the incarceration in excess of the 24-hour prescribed, to have fatally contaminated the intended trial, then it may issue appropriate orders.

58. What is the course available to the Court in such circumstances? In other words, should the Court order a retrial? The Court of Appeal in the case of Ahmed Sumar vs. R (1964) EALR 483 offered the following guidance:“...in general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the Prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the Prosecution is not to blame, it does not necessarily follow that a retrial should be ordered;......”

59. The Court of Appeal in the case of Samuel Wahini Ngugi vs. R [2012] eKLR held: -“The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the Court found as follows:‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the Prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the Prosecution is not to blame it does not in our view follow that a retrial should be ordered…In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’

60. That decision was echoed in the case of Lolimo Ekimat vs. R, Criminal Appeal No. 151 of 2004(unreported) when this Court stated as follows:‘…the principle that has been accepted to courts is that each case must depend on the particular facts and circumstances of that each case but an order for the retrial should only be made where interests of justice require it.’”

61. In Muiruri –vs- Republic (2003), KLR, 552 and Mwangi –Vs- Republic (1983) KLR 522 and Fatehali Maji –vs- Republic (1966) EA, 343 the view expressed was that: -“Although some factors may be considered, such as illegalities or defects in the original trial, the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the Prosecution’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for a retrial should only be made where the interests of justice requires it.”

62. The trial Court shall consider and make a ruling, before the trial begins, on whether the one (1) day that the Appellant was held without charge, do or do not render the trial itself an illegal trial. This is to be done before plea-taking, for the purpose of complying with this order.

63. This Court Considers the serious charges against the Appellant, the potential of the admissible evidence to secure a conviction and interests of justice would demand a retrial notwithstanding the Five (5) years since the alleged crime and the period the Appellant has remained in Prison custody.

64. I do therefore direct that, a retrial be conducted before a different magistrate at the Chief Magistrate’s Court Eldoret. For this purpose, I order that the Appellant shall be produced before the Chief Magistrate’s Court at Eldoret on 13th November 2023 or so soon thereafter, to plead afresh to the charge of Defilement Contrary to Section 8 (1) as read with Section 8 (4) and the Alternative Charge of Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.It is So Ordered

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 9TH DAY OF NOVEMBER 2023________________________Mohochi S.MJUDGE