[2024] KEHC 3192 (KLR)

Ekuwam v Republic (Criminal Appeal E022 of 2023) [2024] KEHC 3192 (KLR) (5 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3192 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E022 of 2023

AC Mrima, J

April 5, 2024

Between

Benson Ekuwam

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. S. K. Mutai (Senior Principal Magistrate) in Kitale Chief Magistrate’s Court Sexual Offence Case No. E101 of 2022 delivered on 9th March, 2023)

Judgment

1. Benson Ekuwam, the Appellant herein, was charged in Kitale Chief Magistrate’s Court Sexual Offence Case No. E101 of 2022 with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act.

2. He denied the offence and was tried. The Appellant was subsequently found guilty as charged, convicted and sentenced to a prison term of 20 years. That was on 9th March, 2023.

3. Aggrieved by the conviction and sentence, the Appellant preferred the instant appeal.

4. The Appellant was not represented by Counsel both at trial and on appeal.

5. This being a first appeal, the duty of this Court is to re-consider and to re-evaluate the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okono vs. Republic [1972] EA 74). In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v. Republic [2004] KLR 81.

6. This appeal was opposed by the State.

7. On review of the matter, this Court’s attention was caught by the manner in which the evidence of the 8 year-old-minor-victim was recorded.

8. The Court, rightly so, found the victim not capable of giving sworn evidence since she did not understand the meaning of an oath. The minor then gave unsworn evidence.

9. The minor’s evidence-in-chief was duly recorded and that was all. The Appellant was not accorded any chance to cross-examine the victim. Further, no reasons were given for such state of affairs.

10. Superior Courts have dealt with similar instances as above, many a times. There is an unperturbed consensus that such state of affairs run a foul the law. The Court of Appeal in H O W v Republic [2014] eKLR discussed the above scenario in great detail, and as follows: -….. We can find no reason for this serious omission except that we think perhaps the court erroneously felt that as an accused person who gives unsworn evidence is not to be cross- examined so would any witness who gives unsworn evidence not be cross-examined. Of course, that was a misapprehension of the law. An accused person who chooses to give unsworn statement in his defence does so as a result of the provisions of the Criminal Procedure Code which protect him from being cross-examined if he chooses to give unsworn statement in his defence. It must be appreciated that the accused person cannot in law be charged with the offence of perjury in respect of a statement he gives in defence of himself in a criminal case brought against him. That protection is not available to a witness in a criminal case. Section 208 of the Criminal Procedure Code is clear on this aspect. It states:208 (1) If the accused person does not admit the truth of the charge, the court shall proceed to hear the complainant and his witnesses and other evidence (if any).(2)The accused person or his advocate may put questions to each witness produced against him.(3)If the accused person does not employ an advocate, the court shall, at the dose of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer."(underlining supplied).

11. In explaining the essence of Section 208 of the Criminal Procedure Code, the Appellate Court in the above case had the following to say: -This provision is clear on the duty of the court to ensure that at the end of any evidence in chief, the accused is not only afforded opportunity to cross-examine that witness but if he is unrepresented, he is asked by the court to do so if he wishes and his answer to that question shall be recorded. The learned trial Magistrate did not do this, perhaps because he thought as we have stated that as J.S. gave unsworn evidence she would not be subjected to cross-examination. With respect he was wrong and the learned Judge of the High Court failed to note and to act on this serious failure in law.

12. In Nicholas Mutula Wambua v Republic, Criminal Appeal No. 373 of 2006 heard at Mombasa, the Court of Appeal cited with approval the decision of the Supreme Court of Uganda in Sula v Uganda [2001] 2 EA 556 thus: -The second point we wish to discuss is whether or not a child witness, who gives evidence not on oath is liable to cross examination. There appears to be a widespread misconception that a child witness who is allowed to give evidence without taking oath because of immature age, should not or cannot be cross-examined.... it would appear that misconception arises from a view that because accused persons are not cross­ examined whenever they make unsworn statements in the defence, child witnesses who did not take the oath should be treated in the same way. Such a view is oblivious of the peculiar protection given to an accused person in the form of a right to make an unsworn statement with no liability to be cross-examined.

13. This above is the law.

14. This Court would only wish to add that the proviso to Section 19 of the Oaths and Statutory Declarations Act, the section that gives guidance on the evidence of children of tender years, directs what happens when a minor witness gives false evidence. The proviso states as follows: -If any child whose evidence is received under subsection (1) willfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of adult with imprisonment.

15. On the basis of the foregoing, this Court takes the view that unless a child's evidence is subjected to cross-examination, it would be impossible to know whether the evidence is false or not. Section 208 of the Criminal Procedure Code applies to all witnesses who give evidence and is not confined to only those witnesses who give sworn evidence. It covers children giving evidence not on oath as well.

16. The upshot is that the Learned trial Court, with tremendous respect, erred in law in failing to ask the Appellant to cross-examine the complainant if he wished to do so.

17. The conviction cannot, therefore, legally stand.

18. Having found as such, the Court now has to ascertain whether the Appellant be released or be retried.

19. The Court of Appeal in Samuel Wahini Ngugi v. R (2012) eKLR rendered itself on the applicable legal principles on retrials as follows: -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 predecessor to this Court stated as concerns the issue of retrial in criminal cases 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 personThat 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.

20. Returning to the matter at hand, the error captured above was precipitated by the Court. Ordinarily in such instances a retrial is allowed. The witnesses are readily available and the Appellant has been in custody for slightly more than one year. A retrial will meet the ends of justice.

21. Consequently, the following final orders do hereby issue: -

a. The appeals on conviction and sentence are hereby allowed.b. The conviction is hereby quashed and the sentence of 20 years imprisonment set-aside forthwith.c. The Appellant shall be retried by any other Court other than Hon. S.K. Mutai, SRM.d. The Appellant shall be handed over to the police and shall be arraigned for plea-taking within 7 days of this Order.It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 5TH DAY OF APRIL, 2024. A. C. MRIMAJUDGEJudgment delivered virtually and in the presence of: -Benson Ekuwam, the Appellant in person.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.Chemosop/Duke – Court Assistants.