[2022] KEHC 1852 (KLR)
The High Court found that the evidence presented at trial established the offence of incest, not defilement, as the complainant was the appellant's niece and the daughter of his younger sister. The trial court's conviction for defilement was therefore fatally defective, rendering the proceedings a mistrial. Given...
Source-derived case information.
- Citation
- [2022] KEHC 1852 (KLR)
- Parties
- Appellant: EM; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 214 of 2014
- Procedural Posture
- Criminal Appeal / Judgment on First Appeal
- Outcome
- appeal allowed; conviction and sentence quashed; re-trial ordered
- Legal Topics
- Defilement, Incest, Sexual Offences Act, Retrial, Standard of Proof, Mistrial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
EM
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on First Appeal
Legal Issues
- 1 Whether the trial court erred in convicting the appellant for defilement when the evidence disclosed the offence of incest.
- 2 Whether the trial was fatally defective due to mischaracterization of the offence.
- 3 Whether a re-trial should be ordered in the interests of justice.
Ratio Decidendi
The High Court found that the evidence presented at trial established the offence of incest, not defilement, as the complainant was the appellant's niece and the daughter of his younger sister. The trial court's conviction for defilement was therefore fatally defective, rendering the proceedings a mistrial. Given the nature of the evidence and the period the appellant had already spent in custody, the court determined that the interests of justice required a re-trial. The conviction and sentence were quashed, and a re-trial was ordered under the court's powers pursuant to section 354(3)(a)(i) of the Criminal Procedure Code.
Court Disposition
appeal allowed; conviction and sentence quashed; re-trial ordered
Orders
- The conviction and sentence of the appellant are quashed.
- The appellant is remanded in custody to be produced before the Chief Magistrate’s court at Bungoma for re-trial as soon as practicable.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. 214 OF 2014
EM....................................................................................................................................APPELLANT
VERSUS
REPUBLIC.................................................................................................................RESPONDENT
(Being an appeal from the judgement of Hon. I.G. Ruhu, RM, dated 16th December,2019
in the PM’s Court at Kimilili, in Criminal No.13 of 2019, Republic vEM)
JUDGEMENT
In his petition of appeal, the appellant has appealed against his conviction and sentence of twenty five (25) years imprisonment in respect of the offence of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006.
In this court the appellant has raised six grounds of appeal in his petition of appeal.
The grounds of appeal as follows.
In ground 1 the appellant has faulted the trial court in failing to find that the prosecution failed to prove its case beyond reasonable doubt.
In ground 2 the appellant has faulted the trial court in failing to find that there was no exhibit found in his possession.
In ground 3 the appellant has faulted the trial court in failing to inform him of his right to legal representation by an advocate.
In ground 4 the appellant has faulted in failing to find that the evidence of Pw 1 and Pw 2 was not truthful because it was based on speculation and conjecture.
In ground 5 the appellant has faulted the trial court that the prosecution failed to call vital witnesses to testify.
In ground 6 the appellant has faulted the trial court in convicting the appellant on insufficient evidence.
The appellant also filed written submissions, which I find unnecessary to consider the grounds and the appellant’s submissions for reasons that will appear below in this judgement.
The submissions of the respondent
The prosecution filed written submissions in support of their case. They urged the court to dismiss the appellant’s appeal in its entirety.
I find unnecessary to consider the respondent’s submissions for reasons that will appear below in this judgement.
Findings of the court.
The evidence of the 8 year old complainant (Pw 1- her name is withheld) is that the appellant is her uncle. She testified that her uncle defiled her.
Furthermore, the mother of the complainant namely LN (Pw 3) testified that the appellant is her elder brother and that the complainant is her blood daughter.
Additionally, Pw 3 testified that her daughter told her what her brother had done to her.
As a first appeal court, I am required to re-evaluate the entire evidence. I have done so. I find that the complainant is the niece of the appellant; since the mother of the complainant is a younger sister of the appellant.
In the circumstances, I find that the evidence discloses the offence of incest contrary to section 20 (1) of the Sexual Offences Act No. 3 of 2006.
It therefore follows that the trial of the appellant was fatally defective. In other words, it was a mistrial.
In the premises, I find that the appeal of the appellant has succeeded. I therefore quash his conviction and sentence.
The only issue for consideration is whether I should order a re-trial. In this regard, one of the main considerations is whether the potentially admissible evidence if believed might result in a conviction. See Braganza v R (1957) EA 152. The other consideration is the period the appellant has been in custody namely both pre-trial and post judgement custody.
I also find that the victim is an eight year old niece of the appellant.
Additionally, the appellant has been in both pre-trial and post judgement custody for about a period of two years and two months.
After taking into account all of the foregoing matters into account I find that it is in the interests of justice to order a re-trial which I hereby do pursuant to this court’s power’s under section 354 (3) (a) (i) of the Criminal Procedure Code (Cap 75) Laws of Kenya.
In the premises, the appellant is hereby remanded in custody to be produced in the Chief Magistrate’s court at Bungoma as soon as practicable for re-trial purposes.
JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE THIS 25TH DAY OF FEBRUARY 2022.
J M BWONWONG’A
JUDGE
In the presence of:-
Mr. Kinyua: Court Assistant
The appellant – Present in prison
Mr. Mukangu for the Respondent