[2015] KEHC 7706 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO.1 OF 2012

(An Appeal arising out of the conviction and sentence of HON. W. OKETCH - RM delivered on 18th December 2013 in Makadara CM. CR. Case No.4012 of 2010)

EVANS OMBUI OGACHI……………………………………….APPELLANT

VERSUS

REPUBLIC………………………………………………........RESPONDENT

JUDGMENT

The Appellant, Evans Ombui Ogachi was charged with rapecontrary to Section 3 (1) as read with Section 3(3) of the Sexual Offences Act. The particulars of the offence were that on 15th October 2010 in Nairobi County, the Appellant unlawfully and intentionally committed an act which caused penetration with his male genital organ into the female genital organ of B O M, a female adult aged 22 years. He was alternatively charged with committing an indecent act contrary to Section 6 of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the Appellant intentionally and unlawfully committed an indecent act on B O M, an adult aged 22 years by touching her breasts and her private parts namely vagina. When the Appellant was arraigned before the trial magistrate's court, he pleaded not guilty to the charge. After full trial, he was convicted on the alternative count of committing an indecent act. He was sentenced to serve five (5) years imprisonment. The Appellant was aggrieved by his conviction and sentence and filed an appeal to this court.

In his petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. The Appellant was aggrieved that the trial court had failed to take into consideration that there were no independent witnesses called to corroborate the complainant's testimony. The Appellant was aggrieved that he was convicted on the basis of evidence that did not establish his guilt to the required standard of proof beyond any reasonable doubt. He was of the view that the trial court relied on contradictory evidence to convict him. He took issue with the fact that the trial court relied on circumstantial evidence to convict him. For the above reasons, the Appellant urged the court to allow the appeal, quash the conviction and set aside the sentence that was imposed on him.

During the hearing of the Appeal, the Appellant was represented by Mr. Ndege. The Appellant presented to court written submission in support of his appeal. Mr. Ndege further made oral submission urging the appeal on the Appellant's behalf. He reiterated the contents of the petition of appeal. He further submitted that the Appellant's rights under Section 200(3) of the Criminal Procedure Code were not explained to him when the convicting magistrate took over the proceedings from the previous magistrate. Ms. Nyauncho for the State conceded the appeal. She agreed that non-compliance with Section 200 (3) of the Criminal Procedure Code by the convicting magistrate was fatal to the prosecution's case. She submitted that the Appellant was accordingly prejudiced. According to Ms. Nyauncho, the prosecution's evidence on record was overwhelming. She therefore sought an order from court that the Appellant be retried. In this regard, she relied on the case ofFetehali Manji -vs- The Republic 1966 E.A. 343.

What are the facts of this case?

The complainant in this case, B O M (PW1) is a mentally challenged female. She was able to testify during trial. She lived with her mother PW3 D M and her aunt PW4 A M. PW3 testified that the complainant developed her current condition when she was about six (6) years old. The complainant recalled that on 15th October 2010 at around 4. 00 p.m. She was in the house. The door was open. She testified that the Appellant entered the house and locked the door from inside. He touched her breasts and kissed her. The Appellant then removed her clothes including her underpants. He also removed his trouser. He told her that he would give her money to buy mandazi before proceeding to have sexual intercourse with her.

PW4 A M, a sister of PW3 testified that on the material day she arrived home at around 5. 00 p.m. She found the house locked from inside. PW4 knocked the door severally but there was no answer. Later, PW1 answered the door. PW4 testified that she found the complainant with the Appellant when she entered the house. She then called PW3 and reported that she had found the Appellant with the complainant locked inside the house. On her part, PW3 testified that when she arrived home at around 6. 00 p.m, the complainant was not wearing her underpants. She testified that the complainant told her that the Appellant had sexual intercourse with her. PW4 further testified that the complainant had previously been defiled and impregnated.

The matter was reported to Ruaraka Police Station. The police advised PW3 to take the complainant to Nairobi Women's Hospital. At the said hospital, the complainant was seen by Dr. Liku. The medical report was produced on her behalf by PW2 Dr. Charles Woya as Prosecution's Exhibit No. 1. The doctor noted that the vagina was normal. The hymen was absent. She had an infection. The complainant was put on treatment immediately. The doctor also recommended that she be counselled. The complainant was also seen by Dr. Zephaniah Kamau on 30th November 2011. He noted that the complainant had no bodily injuries. The case was investigated by PW6 Police Constable Zipporah Mwangi. After concluding her investigation, she reached the conclusion that indeed a case had been made for the Appellant to be charged with the present offence. When the Appellant was put on his defence, he denied committing the offence. He told the court that the reason why he was in the house with the complainant was because the complainant had asked him to deliver flowers to her house.

This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced before the trial court so as to enable it to reach its independent determination whether or not to uphold the conviction of the Appellant. In doing so, this court is required to always have in mind the fact that it neither saw nor heard the witnesses as they testified and therefore cannot make any finding regarding the demeanor of witnesses (See Njoroge -vs- Republic (1987) KLR 19). In the present appeal, the issue for determination by this court is whether the prosecution established the charge ofrape contrary to Section 3(1) as read withSection 3(3) of the Sexual Offences Act to the required standard of proof beyond any reasonable doubt.

This court has re-evaluated the evidence adduced before the trial court. It has also considered the grounds of appeal filed by the Appellant and the submission made on behalf of the Appellant and on behalf of the State. Section 200of the Criminal Procedure Code provides thus:-

“(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 witnesses be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right.

4. Where the accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may if it is of the opinion that the accused person was prejudiced materially, thereby set aside the conviction and may order a new trial.”

This court has perused the record of proceedings before the trial court on 9th November 2011 when the Honourable W. Oketch, Resident Magistrate took over the conduct of the trial from Honourable D. Kinaro, Senior Resident Magistrate. It is satisfied that Section 200 of the Criminal Procedure Codewas not complied with thereby prejudicing the Appellant. It was clear that the magistrate who took over the proceedings did not explain to the Appellant his right under Section 200(3) of the Criminal Procedure Code. The Appellant was not given an opportunity to indicate whether he desired to recall the witnesses who had testified before the previous magistrate. This was in breach of the Appellant’s right to fair trial. The State concedes that indeed the succeeding magistrate failed in his duty to explain that right to the Appellant. In the premises therefore, the appeal lodged by the Appellant on conviction is hereby allowed.

The issue that remains for determination is whether the Appellant should be retried. The State is of the view that the Appellant should be retried taking into consideration the serious nature of the offence that he faced. On his part, the Appellant does not desire to be retried. He urged the court to take into account the nature of evidence that was adduced in the vitiated trial. He was of the view that even if he was to be retried, that evidence would not muster the threshold of the standard of proof required by the law. This court has carefully evaluated the evidence that was adduced in the vitiated trial. This court agrees with the Appellant that the likelihood that the said evidence would muster the standard of proof established by the law is remote. It is trite that a retrial should not be ordered to enable the prosecution fill gaps in its case. In the premises therefore, this court holds that it will not serve the interest of justice for the Appellant to be retried. The Appellant is forthwith discharged. He is ordered set at liberty unless otherwise lawfully held. It is so ordered.

DATED AT NAIROBI THIS 30TH DAY OF SEPTEMBER 2015

L. KIMARU

JUDGE