[2022] KEHC 11154 (KLR)

FM v Republic (Criminal Appeal E113 of 2021) [2022] KEHC 11154 (KLR) (16 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11154 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E113 of 2021

EM Muriithi, J

June 16, 2022

Between

FM

Appellant

and

Republic

Respondent

(Being an appeal from the original conviction and sentence by Hon. P.M Wechuli SRM in Tigania Criminal Case SO No. E027 of 2021 delivered on 17/6/2021)

Judgment

Introduction 1. The appellant, FM was charged with the offence of incest contrary to section 20 (1) of the Sexual offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between March 2021 and May 2021 at [Particulars Withheld] location in Tigania East sub-county within Meru County, he intentionally and unlawfully caused his penis to penetrate the vagina of PM a child aged 15 years who was to his knowledge his daughter. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the material date and place, he intentionally touched the vagina of PM a child aged 15 years using his penis. He was also charged with deliberate transmission of HIV contrary to section 26(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the material date and place, having actual knowledge that he was HIV positive, he knowingly and willfully had unprotected sexual intercourse with PM a child aged 15 years which infected the said PM with HIV.

2. Upon a full trial he was convicted on the two main counts of incest and deliberate transmission of HIV, respectively, and sentenced to life imprisonment for each count and the sentences running concurrently.

3. On appeal from both the said conviction and sentence, the appellant in his petition of appeal raised 10 grounds of appeal as follows:1. The Learned Magistrate erred in law and fact by failing to appreciate that the appellant was not in full control of his mental facilities all through the trial that lasted 7 days, prompting him to admit to issues alien, otherwise detrimental to his defence and his understanding at large.2. The Learned Magistrate erred in law and fact by failing to take into account the actual age of the complainant, who had either misled the court into believing that she was 15 years other than 17 years of age, a misconception that was otherwise detrimental to the appellant and his case as a whole.3. The Learned Magistrate erred in law and fact when an inference is made that the accused ought to establish his innocence against the case he was charged with.4. The Learned Magistrate erred in law and fact when he failed to properly apply the required tests of admission of circumstantial evidence, thus finding against the interests of justice and to the detriment of the appellant.5. The Learned Magistrate erred in law and fact when he failed to take into account the mental status of the accused at the time he was put on his defence the same day his tormentors had proffered damning testimonies against him.6. The Learned Magistrate erred in law and fact when he failed to take into consideration other co-existing circumstances which weakened the inference of guilt, thus finding against the interests of justice and to the detriment of the appellant.7. The Learned Magistrate erred in law and fact when he failed to appreciate that the complainant had been accused of stealing clothes and not for the first time was she appearing at the police station, and further that she had not been at home for a continued period for more than 6 months but instead, the waves of the wind were changed into having the appellant charged and setting free the complainant herein, a thing that points to poor investigations of the matter and ultimately arriving to a wrong determination against the appellant’s freedoms.8. The Learned Magistrate erred in law and fact when he failed to accord the appellant herein a fair trial as the whole trial herein proceeded un-defended and a raft of the appellant’s rights breached save to add that the same was concluded in a span of 7 days, thus finding against the interests of justice and to the detriment of the appellant.9. All in all the Learned Magistrate misdirected himself on matters of law and fact as to occasion a miscarriage of justice against the appellant.10. That in light of the foregoing the learned magistrate failed to do justice before him in the case at hand.

The Evidence 4. PW1 PM, the complainant, gave sworn testimony that she was a class 8 pupil aged 15 years. She stayed with her father, the appellant, her step mother and her 2 young sisters. In March, she was asleep in the house with her small sister E aged 3 years when her father came and knocked on the door. When she opened the door, her father told her to go with him to the farm. He then removed her trouser and panty and told her to lie down. When she tried to resist, he covered her mouth, held her neck, threw her down, removed his clothes and had sex with her. He then told her to put on her clothes and go home. She went back home to sleep and left the appellant on the road. When she woke up the following morning, she did not see the appellant. On another occasion in that month of March, the appellant came at night and took her from the house to the farm. He removed her clothes, removed his clothes, covered her mouth and neck, put her down and had sex with her. He threatened to kill her if she told anyone. After 1 week, she went to the home of a certain woman whose name she did not know and stayed there with another girl. She put on the girl’s clothes and the girl went to report that she had stolen her clothes. She was arrested and taken to Muthara police station. Her father later came to the police station and she told the police what her father usually did to her. The theft issue was in June. She was taken to Muthara dispensary for examination. She did not know if she had HIV and she identified her father in the dock and stated that he had slept with her twice. She did not tell anyone as the appellant had threatened her.

5. The accused did not cross examined the complainant although opportunity was granted as shown in the Record.

6. PW2 PC Corporal Easther Rhina and the investigating officer, was on 7/6/2021 at work. The OCS told her that there was a child with stolen clothes. After the issue was resolved, the girl refused to go home and started to cry. When prompted further, she disclosed that her father, who used to take care of her after her mother left, had raped her. She then called the complainant’s father who came with his wife. The appellant denied the allegations and said since he was HIV positive, he did not want to die and leave the complainant alone. The appellant then stated that the complainant was disturbing him as she used to run away from home, and he thought she was overwhelmed with feelings. She took the complainant to Muthara hospital where she was examined and the HIV test turned out to be positive. She confirmed that the appellant went for his HIV drugs from the said facility. She learnt that the complainant’s mother had since remarried. She produced the appellant’s clinic card and the complainant’s birth certificate as exhibits in court.

7. The accused did not cross-examine this witness although opportunity to do so was granted as shown on the Record.

8. PW3 Lucy Kagonyo, a clinician at Muthara Hospital, examined and treated the complainant whose hymen was perforated and no bruises or discharge were noted. Based on those observations, she made a diagnosis of incest. On 7/6/2021 she filled the complainant’s P3 form which she produced as exhibit in court. The HIV test was positive and she referred the complainant for counseling before treatment. She filled the PRC form on 10/6/2021 and she produced it as an exhibit in court. She also produced the appellant’s treatment card, the complainant’s treatment notes and the complainant’s hospital attendance card as exhibits in court.

9. On cross examination, she stated that she examined the complainant as a clinician.

10. PW4 Tachio Igweta, the assistant chief at Athaya in Muthara, testified that in June 2021 at 11 pm, he received a report from Nyumba kumi that some girls had stolen clothes. They proceeded to the scene where they found a crowd, the complainant and another girl. The complainant was locked in the house and they took the girls to Muthara police station. He knew the complainant’s parents and her father was the appellant.

11. The accused did not cross-examine this witness although opportunity is shown on record to have been granted.

12. In his unsworn defence, DW1, the appellant told the court that he was a building constructor. He stated that the complainant took his money, he beat her and she ran away to her mother. He had disagreed with the complainant’s mother, and she brought these false charges that he raped her. He insisted that he was innocent and he had small children, and one was disabled. He stated that if he was jailed, his children would suffer as he was alone.

Submissions 13. The appellant and the respondent filed their respective submissions to the appeal on 29/10/2021, 1/11/2021 and 22/12/2021. The appellant submitted that he was not given adequate time to prepare for his defence in accordance with article 50(2)(c) of the Constitution. He submitted that he was not informed of his right to cross examine the complainant which violated his right to a fair trial, as the trial was hurriedly conducted and concluded within 72 hours. He submitted that he did not cross examine the key witnesses in this case as he was not enjoying control of his mental facilities. He submitted that the prosecution failed to prove beyond reasonable doubt that he was the complainant’s biological father. He submitted that there was a possibility that the complainant was defiled by other people. He faulted the trial court for relying only on the evidence of the complainant without noting that the complainant might have acquired the disease during her birth. He faulted the trial court for disregarding his defence which in his view contained some reasonable facts to support his acquittal. He submitted that he faced moments of lucidity and at times lost his memory especially when under pressure. He faulted the trial court for failing to note that the complainant was aged 17 years and not 15 years. He faulted the trial court for failing to properly apply the test of admission of circumstantial evidence as set out in Abanga Alias Onyango v RCR. APP. No 32 of 1990. He submitted that the complaint against him was an afterthought as the complainant had not been home for a continued period of more than 6 months. He submitted that the evidence and testimonies presented to the trial court did not meet the standard of proof applicable, as there existed loopholes and the circumstances taken cumulatively did not form a chain so complete that, there was not escape from the conclusion that within all human probability, the crime was committed by the appellant and no one else. He submitted that if the trial court had considered the co-existing circumstances which weakened the inference of guilt, it would have arrived at a different determination in whole. He urged the court to acquit him or in the alternative declare the 7 day trial at the trial court a mistrial. He relied on Grace Nyoroka v Republic (2007) eKLR, BN v Republic(2019) eKLR, Alfayo Gombe Okello v Republic(2010) eKLR Philip Nzaka Watu v Republic (2006) eKLR,Stephen Nguli Mulili v Republic (2014) eKLR and Miller v Ministry of Pensions (1947) 2 All ER 372 in support of his submissions.

14. The respondent submitted that since the plea was taken in a language the appellant understood as well as the whole trial, and the appellant did not raise insanity as a defence, the proceedings were lawfully conducted and the conviction was proper. It submitted that the fact that the trial was concluded within 7 days did not in itself mean that the appellant’s right to a fair trial was violated, as the appellant was fully informed, understood and was also facilitated in order to effectively participate in the trial process. It submitted that although the charge sheet stated the complainant was aged 15 years and her birth certificate indicated that she was born on 10/3/2004, that error was curable under section 382 of the Criminal Procedure Code, and relied on John Irungu v Republic [2016] eKLR. It submitted that the age of the complainant was indeed proved beyond reasonable doubt to be 15 years old, and relied on Daniel Kamau v Republic [2019] eKLR and Thomas Aluga Ndegwa v Republic [2018] eKLR. It submitted that the appellant was accorded a fair trial, as he did not at any time complain that his rights were infringed during the trial, and relied on Kenga Hisa v Republic [2020] eKLR. It submitted that it proved the elements of the offence of incest beyond reasonable doubt, as set out in WOO v Republic [2016] eKLR and HKK v Republic [2017] eKLR, and the circumstances from which the inference of guilt were drawn were firmly established, as those circumstances were of definite character, unerringly pointing towards the guilt of the appellant, and the circumstances taken cumulatively formed a chain so complete that there was no escape from the conclusion that within all human probability, the crime was committed by the appellant and no one else. It supported the trial court’s application of the provisions of section 124 of the Evidence Act, after finding the complainant to be truthful, and relied on J.W.A v Republic (2014) eKLR and Mohamed v Republic [2006] 2 KLR 138 in support of that argument. It submitted that the appellant, who was aware of his HIV status knowingly infected the complainant, when he defiled her severally. It prayed the court to uphold both the conviction and the sentence of the trial court.

Analysis and Determination 15. This being a first appeal, the parties are entitled to this court’s reconsideration and reevaluation of the evidence on record in order to reach its own conclusions give due allowance, however, that the trial court had the advantage of seeing the witnesses testify. SeeOkeno v R (1972) EA 32.

16. The issues for determination have been summed up by the appellant in his submissions as follows:a.Whether the trial court took into consideration the mental facilities and status of the appellant during the trial;b.Whether the trial court took into account the actual age of the complainant in making its determination; whether the appellant was accorded a fair trial and an opportunity to establish his innocence; andc.Whether the trial court properly applied the required test of admission of circumstantial evidence and the standard of proof by taking into consideration other co-existing circumstances which weakened the inference of guilt. 17. The court will at the outset deal with question as to defectiveness of the trial in view of its natural consequences and the order for retrial sought in Prayer No. 3 of the Petition of Appeal (called Memorandum of Appeal by the Appellant’s counsel) in the words that “the 7day Trial in Tigania Criminal Case No. E027 of 2021 be declared a mistrial and investigations in the matter be re-opened to allow the due process of a criminal trial to take place afresh.” Depending on the outcome of the court’s determination in this matter, the court will rule on the other issues raised for determination.Whether the appellant was accorded a fair trial and an opportunity to establish his innocence

18. The appellant contends that since the trial took a flash record of 7 days, his rights to a fair hearing under article 50(2) (c) (e) and (k) were infringed. article 50 (2) of the Constitution provides that:“Every accused person has the right to a fair trial, which includes the right— (c) to have adequate time and facilities to prepare a defence; (e) to have the trial begin and conclude without unreasonable delay; (k) to adduce and challenge evidence.”If it can be shown that the speed of trial was such that the accused was prevented from adequately preparing for his trial or to adduce and challenge evidence such an objection may be valid. I respectfully note the observation of the Court in State v Titus Kipchirchir Kurui [2022] eKLR, (D. Chepkwony, J.) that, “In the Kenyan Jurisprudence, the right to fair trial is placed at a much higher pedestal and it includes the right by an accused person to challenge the evidence presented against him or her. The court being a custodian of the law, should however ensure the constitutional safeguards are upheld all the time and jealously protected so that the accused is accorded true investigations and fairness in compliance with the basic rule of law. That is a fundamental canon of our criminal jurisprudence and quite in conformity with the constitutional mandate contained under Article 50 of the Constitution of Kenya, 2010. ”

19. This Court has had opportunity to rule on a hasty trial in Felix Mwova Vaasya v Republic[2016] eKLR as follows:“However, a valid criticism must be made against the trial court, not on account of bias, in my view, but for the obviously too hurried a manner in which it conducted the trial - regardless of the need for expedition of the matter which involved a child complainant who as it turned out was headed for Form One secondary school admission - leading to total disregard and violation of the accused’s constitutional trial rights under Article 50 (2) of the Constitution for adequate time and facilities to prepare for his defence, to be supplied with witness statements and to be represented by Counsel.It counts for nothing as a response to such criticism that the accused had indicated on the day of hearing that he was ready to proceed with the trial. In the interests of fair trial for the accused, the court could only have accepted this indication that the accused was ready to proceed upon confirming that the accused had in accordance with the court’s direction obtained copies of the prosecution witness statements and other evidence, as he was entitled to by the Article 50 (2) (j) of the Constitution and after informing the accused of his right counsel as the court was enjoined to do by Article 50 (2) (g), and this enquiry and response should be record as part of the proceedings. An accused person who is unrepresented by counsel, who was arraigned in court only the day before hearing and who states in court that he is ready to proceed with the trial must raise the eyebrows of the court into caution, as the Court has a duty to give the accused a fair trial in accordance with the Article 50 of the Constitution. The provision, if this happened at all, of prosecution witnesses’ statements the previous day before trial cannot be said by any reasonable standards to have afforded the accused person who is unrepresented by advocate with ‘adequate time and facilities to prepare a defence’ (Art.50 (2) (c)) and reasonable information and access ‘in advance of the evidence the prosecution intends to rely on’ (Article 50 (2) (j) of the Constitution). The proceedings in the trial the day following arraignment of the accused in court in the circumstances of this case infringed upon the accused’s right to counsel, to be informed of the evidence of the Prosecution and to adequate time and facility to prepare for his defence, and must be set aside in the interests of justice.While the zeal on the part of the trial court to give the matter an expedited trial in view of the nature of the charge of defilement and the age of the victim is understandable, the Court still had a duty to balance the need for expeditious disposal of the trial and the accused’s constitutional right to a fair trial. It was not for the accused, who was unrepresented, to indicate that he was ready to proceed with the trial, and for the trial court to be thereby exonerated of its constitutional duty. No! It was the constitutional duty of the trial Court to inform the accused of his right to the prosecution’s evidence in advance of the trial and of his right to counsel. It was not for the accused to ask for the statements or for an opportunity to be represented by legal counsel; it was for the Court to inform him of these rights and to afford him an opportunity to take benefit of these rights.In ordering the commencement of hearing of the serious charge of defilement the very following day after plea is taken by an unrepresented accused person who is to be supplied with prosecution witness statements by order made at the Plea (which is not confirmed to been complied with before trial commenced) and accepting a statement by the unrepresented accused that he was ready to proceed with the case, without informing him of his right to be represented by counsel in accordance with article 50 (2) (g) of the Constitution, the learned trial magistrate acted in contravention of the accused’s fair trial rights. The High Court as a Constitutional Court is under a duty to remedy breaches of the constitutional provisions on the trial rights whenever it becomes aware of such violation or threat of violation whether under its Bill of Rights jurisdiction or under the supervisory jurisdiction of the Court.”

20. I also respectfully note the decision of the Court inJoseph Ndungu Kagiri v Republic [2016] eKLR addressing whether a speedy trial causes any prejudice to the accused person, as follows:-“considering the time frames mentioned above, an innocent observer can be easily be pardoned for praising the learned Magistrate and the prosecution for the zealous manner and the remarkable speed with which the proceedings were hurriedly conducted. Within a record of seven days as stated above, the prosecution had closed its case, a rare achievement in this country by any standard. The defense hearing was fixed within seven days from the date the prosecution closed its case, another rare happening in practice and reality. This, to an innocent observer appears to be a perfect and religious observance of the provisions of Article 50 (2) (e) of the Constitution of Kenya 2010 which guarantees an accused person the right to have his trial begin and be concluded without unreasonable delay. However, this remarkable speed raises serious fundamental constitutional issues among them whether or not the appellants right to a fair trial was infringed and whether or not the provisions of the Criminal Procedure Code were violated…..In my considered opinion, the speedy trial provided for in our constitution is not ‘a rushed and unconsidered justice’. No. It cannot be nor can it be so construed under any circumstances. In my considered view, our constitution provides for a speedy trial but it anticipates a trial with two sides, which must as of necessity exhibit the best antidote to both sides. It must demonstrate a criminal justice system that is not too fast, and not too slow, but just right. To me that is the proper meaning of the phrase ‘to have the trial begin and conclude without unreasonable delay.’ The drafters of the constitution never anticipated a trial that is too speedy to the detriment of an accused person. I reiterate that the flip side of the maxim “justice delayed is justice denied ….” Is a rushed, unconsidered, unprocedural and unconstitutional trial that undermines sound criminal justice system.” The effect is that such a trial is a sham and has absolutely no place in our constitutionalism.”

21. In this case the charge was registered on 9/6/2021, plea taken on the same day and the trial commenced on the second day thereafter on 11/6/2021, the record showing the accused as saying he was ready and that he had witness statements. On that first day, the Prosecution called two witnesses the complainant and the Investigating Officer. The record shows that the accused did not cross-examine both witnesses. The trial resumed two days later on 14/6/2021 when PW3 the clinician was called as witness and the accused is shown only to have questioned her to elicit the answer “I examined the complainant as a clinician.” On the same day PW4 the assistant chief testified and again the accused did not cross-examine him. The prosecution then closed and the court immediately ruled that the accused had a case to answer. The accused immediately thereafter gave his unsworn statement and judgment was reserved three days later for the 17th June 2021. The trial started on 11/6/2021 and ended by judgment and sentence on 17/6/2021 when the accused was convicted and sentenced to imprisonment for life on the two main charges of serious offence of incest and deliberate transmission of HIV contrary to section 20(1) and Section 26(1) of the Sexual Offences Act No. 3 of 2006, respectively.

22. The accused was not represented. The court ought to have ensured his fair trial by giving him an opportunity to prepare his defence including getting assistance of counsel, if he so wished. The court was aware of the serious prejudice to the unrepresented accused who faced a life sentence and who in ignorance or other difficulty was unable to cross-examine his accusers and or lead evidence in his defence. It is appalling that such a proceeding occurred in the records of Kenya judicial system, and it must be quashed. With tremendous respect to the trial court! The court ought to have informed the accused of his right to counsel under art. 50 (2) (g) of the Constitution as follows:“to choose, and be represented by, an advocate, and to be informed of this right promptly;”

23. Indeed, the Constitution of Kenya 2010 recognises likely prejudice as a ground for provision of representation by counsel, as follows:“to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”

24. Where this is not done may be a ground of appeal when considered with the inadequate facility given for trial preparation in the words of Article 50 (2) c) of the Constitution “to have adequate time and facilities to prepare a defence”. The unrepresented appellant herein who faced charges which on conviction would be punished by imprisonment for life is a singular example of prejudice and award for grant of legal representation. The court is aware that the legal aid provision for accused in the category of the appellant has not been operationalized and this may serve as a call to action for the relevant agencies to actualize this constitutional right.

25. Substantial injustice has indeed resulted in the conviction and sentence to two life sentences for the serious charges of incest with child victim and deliberate transmission of HIV contrary, respectively to section 20(1) Proviso and section 26(1) of the Sexual Offences Act No. 3 of 2006.

26. Having found that the trial was rushed, hasty and in contravention of the appellant’s right to fair trial with its ingredients of right to counsel and for adequate time facilities to prepare for the trial, the court must declare a mistrial or defective trial by reason of denial of adequate facilities to prepare for his trial.

Retrial 27. As held in retrial is the standard remedy for mistrial or defective trial except where the interests of justice of the particular case dictates otherwise. See Fatehali Manji v. Republic (1966) EA 343; Muiruri v. R (2003) KLR 552 and Mwangi v. R (1983) KLR 522.

28. In this case, the trial was concluded just last year and there is no indication that the witnesses are not available for retrial. The accused has not been in custody for an inordinately long period of time as to serve substantial portion of the life sentence as would make it an injustice to order his retrial. In addition, the default occasioning the mistrial was not caused by the Prosecution but by the court in ordering a hasty trial.

29. Most significantly, the offences facing the appellant of most serious concern to the court and country in the face of prevalence of cases of defilement of children. It is in the interests of justice as held in Opicho v. R (2009) KLR 369 that the accused should be tried in a fair trial for the very serious charges involving a member of his family.

30. In order not to prejudice and embarrass the trial court on retrial this court does not discuss the merits of the case save to observe that there is evidence upon which a court may on a fair trial as ordered herein convict.

ORDERS 31. Accordingly, for the reasons set out above, the convictions and sentences of the appellant for the offences of incest contrary to section 20(1) and of deliberate transmission of HIV contrary to section 26(1) of the Sexual Offences Act No. 3 of 2006 are quashed and set aside, respectively.

32. The appellant/accused shall be retried before the Principal Magistrate’s Court at Tigania differently constituted.

33. The case shall be mentioned before the Principal Magistrate at Tigania on June 23, 2022 for directions as to the retrial.Order accordingly.

DATED AND DELIVERED ON THIS 16TH DAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Mutuma Gichuru & Co. Advocates for the Appellant.Ms. B. Nandwa, Prosecuting Counsel for the DPP/Respondent.