[2015] KEHC 2428 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 1 OF 2015

(An appeal from the Orders of the Senior Resident Magistrate, Siakago in Criminal Case No. 778 of 2012)

ELIAS KIAMATI NJERU............................................. APPELLANT

VERSUS

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

J U D G M E N T

This is an appeal against the judgment of Siakago Senior Resident Magistrate in Criminal Case No. 778 of 2012 where the appellant was convicted of the offence of an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was sentenced to serve ten years imprisonment.

In his petition of appeal, he relied on several grounds:

That the magistrate erred by convicting the appellant based on a null and void prosecution which was in contravention of Article 2(4), 10, 27(1) and 157(6)(a) & (9) of the constitution.

That the magistrate erred by convicting the appellant on the alternative count of indecent act with a child that was not proved beyond reasonable doubt.

That the magistrate erred by convicting the appellant in total disregard on the unrebutted defence of alibi.

The magistrate erred in relying on the prosecution’s evidence which was weak and incapable of sustaining a conviction.

That the magistrate erred by failing to give the appellant the benefit of doubt considering the flaws in the investigations and the generality of the circumstances of the case.

That the magistrate misconducted herself by failing to abide by case law and by failing to record reasons for her findings.

The appellant was represented by Mr. Gachuba of Oyoni & Opini Company Advocates while Ms. Matere represented the respondent.

Mr. Gachuba submitted that the prosecution violated Articles 2(4), 10, 27, 157(6)(a) and 9 of the constitution. Under Article 157, the director of Public Prosecution (DPP) is the only person empowered to institute criminal proceedings. The appellant was arrested and arraigned in court without the DPP being given a chance to approve the charges in violation of Article 157 which omission renders the prosecution null and void.

It was further submitted that the trial magistrate extensively dealt with the evidence of identification as opposed to the evidence relating to the alleged sexual offence. The court failed to record the reasons for believing that the complainant was telling the truth contrary to the provisions of Section 124 of the Evidence Act.

It was argued that there was no evidence to support the charge of indecent act with a child. The appellant was charged with the offence of defilement contrary to section 8(1) of the Sexual Offences Act. The court found that there was no evidence to prove the charge. The trial magistrate did not explain what evidence she relied on to convict the appellant of the alternative charge since the only evidence available was that a child was born as a result of the act. The evidence of PW4 and the investigating officer was inconclusive and so was the medical evidence since no DNA test was conducted.

The appellant further argued that the charge was defective since it was not supported by any evidence. It was further submitted that the alibi defence of the appellant was rejected although the prosecution did not disapprove it as required by the law. It was wrong for the magistrate to refer to the defence as an afterthought without any basis.

The appellant relied on the following cases to support his submissions.

NZUKI MUTAMBU VS REPUBLIC [2013] eKLRwhere the court held that it is trite law that where the evidence does not support the main charge the court convicts on the alternative charge where there is sufficient evidence to support the charge.

BERNARD KIAI NGARUIYA VS REPUBLIC [2008] eKLRwhere the court held that a conviction on a charge of committing an indecent assault was far fetched as it did not tally the evidence adduced.

JOSEPHAT KIPNGETICH VS REPUBLIC [2013] eKLRwhere the court held that the prosecution case was full of doubts as medical exam was conducted 15 days earlier

PETER KIMANZI VS REPUBLIC [2013] eKLRthe court held that the magistrate who took the evidence of the child did not record any reasons in the proceedings stating whether or not she was satisfied that the child told the truth. The same was not alluded to in the judgment. The court held that the trial court failed to analyze the evidence on record prior to reaching its findings

VICTOR MWENDWA MULINGE VS REPUBLIC [2014] eKLRthe court of appeal held that even if the appellant raised the defence of alibi for the first time while in court,pursuant to section 309 of the cpc the prosecution could have sought to adduce further evidence in reply to rebutt the appellant's defence

J.W.N VS TEACHERS SERVICE COMMISSION [2014] eKLRwhere the court held that there was no DNA connection between the complainant and the child.

Ms. Matere submitted that the prosecutor who conducted the case was duly gazetted. This was in response to the argument that the DPP did not approve the charges which explanation seemed misplaced. In regard to the burden of proof, it was submitted that the case was proved beyond any reasonable doubt. The complainant’s evidence was supported by that of her mother and that of the investigating officer. The clinical officer found that there was evidence of previous pregnancy when he examined the complainant.

The respondent further argued that the magistrate analyzed the evidence of the complainant and dismissed the defence of alibi. There was further corroborative evidence from the father of the child in regard to the paternal responsibility taken up by the appellant after the birth of the child. The agreement between the parents and the appellant was produced in evidence without any objection.

The respondent stated that the magistrate’s judgment was well reasoned and was in compliance with Section 169 of the Criminal Procedure Code. The evidence was watertight and supported the conviction. As for the alibi the counsel submitted that it was raised a bit late in the day by the appellant’s advocate.

The duty of the 1st appellate court was explained by the Court of Appeal in the case of KARIUKI KARANJA VS REPUBLIC [1986] KLR 190 that:-

''On first appeal from a conviction by a judge or magistrate, the appellant is entitled to have the appellate court's own consideration and view of the evidence as a whole and its own decision thereon. The court has a duty to rehear the case and reconsider the material before the judge or magistrate with such materials as it may have decided to admit.''

The law applicable is Section 11(1) of the Sexual Offences Act which provides:-

“Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years”.

The appellant relied on several articles of the constitution. Article 2(4) provides that any law which is inconsistent with the constitution is void to the extent of the inconsistency, and any act or omission in contravention of the constitution is invalid.

Article 10 provides that the national values and principles of governance contained therein are binding to the state, or its state officers, public officers and all persons involved in applying or interpreting the constitution, enacting, applying or interpreting the law.

Article 27(1) provides that every person is equal before the law and has the right to equal protection and equal benefit of the law.

Article 157(6)(a) provides for the powers of DPP “to institute and undertake criminal proceedings against any person before any court in respect of any offence alleged to have been committed”.

Article 157(9) provides that the powers of DPP may be exercised in person or by any subordinate officers on general or special instructions.

The appellant argued that Article 157 was violated in that the charges were instituted by the police and were not approved by the DPP. Although the appellant is said to have been arrested and arraigned in court the following day, no evidence was presented to show that the DPP did not approve the charges. It is possible that the officer in charge of the police station may obtain approval from the DPP within a short time before presenting the charge sheet to court for registration. It cannot be said for certain that the charges were not sanctioned by the Director of Public Prosecutions. The claim that the prosecution is null and void has no legal or factual basis.

Although the appellant relied on Article 10, 27 and 157(9), it was any demonstrated that there was no violation of the articles and neither was their relevance to this application explained.

The evidence of the prosecution was that PW1 was impregnated by the appellant and that she gave birth on the 25/9/2011 at the age of 17 years. On the material day she had been sent to collect firewood away from home by her mother, when the appellant came and wrestled her to the ground. He removed her underpants and the biker she was wearing hadbefore defiling her. He warned her not to scream or else he would kill her. She did not tell anyone about what had happened because she feared to be killed. It was not until 3 months later that she realized that she had missed her monthly periods and that her stomach started bulging. She said that her legs were also swelling.

She informed her parents who took her to Kiritiri Health Centre where she was examined. The appellant was summoned by her parents and later by the area Children’s Officer. He admitted that he had defied the complainant and paid 1,200/= as hospital expenses to her parents. An agreement between the appellant and the parents was produced in evidence.

PW2 and PW3 are parents of the complainant. They gave evidence on how they came to learn that the complainant was impregnated by the appellant. The appellant admitted before them that he was responsible for the pregnancy. The matter was referred to the District Children’s Officer where an agreement was reached to the effect that the appellant was to meet medical expenses and buy clothes for the baby. The agreement was reduced in writing and KShs.1,200/= was paid to them in three instalments.

PW4 was the aunt of the complainant but did not witness the incident. She testified that she had a conversation with PW1 who informed her that she had been defiled by the appellant on the 25/9/2011. She was pregnant and had not yet informed her parents. PW4 undertook to inform the parents who then took the complainant to hospital. PW4 told the court that she was involved in the negotiations before the children’s officer between the appellant and parents of the complainant.

The investigating officer PW6 testified that the case was reported at Siakago police station on 30/10/2012 by the complainant. She alleged that she had been defiled by the appellant on 25/9/2011. He issued her with a P3 form to attend treatment at Mbeere District Hospital. PW6 later obtained the birth certificate of the complainant from her parents. He also learnt that she had a five month old baby and was given the babies health and nutrition card.

PW7 is the clinical officer who examined PW1 at Mbeere District Hospital on 13/11/2012. He testified that since time had lapsed since the victim was defiled he advised that a DNA test be done. PW7 on examination found that the genitalia was normal but there were signs of a recent pregnancy. PW1 told him that she had given birth to a baby boy following an incident of defilement. He produced a P3 as evidence.

The appellant in his defence denied the offence. He told the court that he did not know the complainant although he knew her parents. He said he could not recall owning up to the offence and promising to pay any money. He further testified that he paid the father of the complainant PW2 some money which he had earlier lent to the appellant to buy medicine. The appellant said that on 19/12/2011 he was at Kanyariri and not in Muraru where the offence allegedly occurred.

The appellant argued that trial magistrate did not comply with Section 124 of the Evidence Act in that she did record the reasons why she believed the complainant. The Section provides:-

Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.

I have perused the judgment of the learned magistrate and note that although she dealt with the evidence of the complainant at length she did not record the reasons which made her believe her evidence. Section 124 requires that the reasons be recorded in case of conviction of the accused where the court is satisfied that the alleged victim is telling the truth. Failure to record the reasons was a misdirection on the part of the magistrate.

This is a case where medical evidence to support the complainant’s evidence was lacking. The complainant was examined on 13/11/2012 which was about 1 year after the alleged defilement. PW7 recommended that a DNA test be conducted since the complainant had already given birth. It appears that the investigating officer did not take the doctor's advice. It was not enough to say that the girl had given birth after having been defiled. The investigating officer ought to have conducted sound investigations. There was therefore no evidence to support the charge of defilement. The magistrate opted to convict on a lesser charge of indecent act with a child.

It was argued that there was no evidence to support the lesser charge. In addition to the evidence given by the complainant on how she was defiled, there was no explanation on the delay to attend medical examination. She testified that she was defiled on 29/11/2011 and did not inform her parents or report to the police. Even after learning that she was pregnant 3 months later the complainant did not report the matter to the police. The parents engaged the appellant in an informal settlement for maintenance of the baby and payment of hospital expenses. It is evident that this did not work out which eventually led to the matter being reported to the police one year later on 30/10/2012.

I take judicial notice that the complainant though a minor at the material time, she was not a child of tender age and was capable of understanding the importance of informing her parents or reporting the alleged crime matter to the police. The delay in this case was not explained and it leaves a lot to be desired. It cannot be ruled out that a sexual intercourse did not take place between the complainant and the appellant or any other man which resulted in pregnancy. However, the conduct of the complainant and her parents puts their credibility as witnesses in question. The trial magistrate did not address the issue of the delay in her judgment. It was important that this critical issue be addressed.

The magistrate convicted the appellant on the evidence of the complainant whose credibility is in question. There was no other evidence to corroborate PW1’s evidence. In my considered opinion, the evidence of the prosecution was not sufficient to support the charge.

It was argued that the alibi defence was not rebutted. The appellant relied on the Court of Appeal case of VICTOR MWENDWA MULINGE VS REPBLIC [2014] eKLR. The court held that even if the appellant raised the defence of alibi for the first time during the trial, the prosecution ought to have applied to adduce further evidence in accordance with Section 309 of the Criminal Procedure Code to rebut the appellant’s defence.

Section 309 of the Criminal Procedure Code provides:-

“If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.”

In the case of KIARIE VS REPUBLIC [1984] KLR the Court of Appeal held:-

“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. The judge had erred in accepting the trial magistrate’s finding on the alibi because the finding was not supported by any reasons”.

The prosecution in the case before me did not apply to the court to obtain evidence for the purpose of rebutting the alibi of the appellant. This puts the case of the prosecution in doubt considering that the evidence tendered cannot be said to be overwhelming.

In view of the foregoing analysis of the prosecution’s evidence and the decisions relied on by the appellant, I am of the considered opinion that the magistrate ought to have given the appellant the benefit of the doubt in the prosecution’s case. I reach a conclusion that the case against the appellant was not proved beyond any reasonable doubt rendering the conviction unsafe.

The appeal is hereby allowed. The conviction is hereby quashed and the sentence are set aside. The appellant is set at liberty unless otherwise lawfully held.

It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 30TH DAY OF SEPTEMBER, 2015.

F. MUCHEMI

JUDGE

In the presence of:-

The appellant

Ms. Matere for State

Mr. Gachuba for appellant