[2019] KEHC 5906 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CRIMINAL APPEAL NO. 145 OF 2017

(from the original conviction and sentence by T.A. Odera, SRM,

in Mumias PMC Sexual offence case No. 18 of 2016 dated 24/11/2017)

IWM.......................................................................................APPELLANT

VERSUS

REPUBLIC..........................................................................RESPONDENT

JUDGMENT

1. The appellant was convicted of the offence of incest contrary to Section 20(1) of the Sexual Ofences Act No. 3 of 2006 and sentenced to life imprisonment. He was aggrieved by the conviction and the sentence and filed this appeal.

2. The grounds of appeal are that:-

1. The learned trial magistrate gravely misdirected herself in law and fact in taking the appellant through a trial that violated the provisions of article 50 (2) (g), (h) and (j) of the Constitution of Kenya 2010.

2. The learned trial magistrate gravely erred in law and fact in finding the charge of incest proved beyond peradventure without observing that there lacked a conclusive DNA report by P.W.4 proving the relation between the victim and the appellant.

3. The learned trial magistrate gravely erred and or misdirected herself in law and fact in placing reliance on a DNA report which was obtained without the court’s supervision and direction and exempting the same from malice and undue influence.

4. The learned trial magistrate gravely erred in law and fact in failing to observe that the child was not identified in court by P.W.4 as required.

5. The learned trial magistrate gravely erred in law and fact in failing to observe and consider that the DNA report tendered did not link the victim, appellant and the child to a common ancestry, thereby filling the gap based on presumption.

6. That the learned trial magistrate gravely erred in law and fact in basing the appellant’s conviction on malicious, doubtful, inconsistent and fabricated evidence.

7. The learned trial magistrate gravely erred in law and fact in rejecting the appellant’s defence.

3. The state opposed the appeal.

4. The particulars of the offence against the appellant were that on diverse dates between 25th day of December 2014 and 12th day of December 2015 at [particulars withheld] village, Kholera location in Matungu sub county within Kakamega county being a male person, caused his penis to penetrate the vagina of M. B. I. (herein referred to as the complainant), a female juvenile aged 15 years who was to his knowledge his daughter.

Case for Prosecution -

5. The evidence for the prosecution was that the appellant is the biological father to the complainant. The complainant was living with the appellant at their home. The complainant’s mother had parted company with the appellant when the complainant was young. She was living with a step-mother called F who did not testify in the case.

6. That in the year 2014 the complainant’s step mother left home and went to work in Dubai. She left the complainant at home together with her children. The complainant was sleeping in one room with the other children. That on 25/12/2014 the appellant took the complainant’s beddings to his bedroom. He forced her to sleep on a mattress on the floor in his bedroom. She later woke up at night and found the appellant having defiled her. He did the same thing on her on the following night. He continued to defile her until the 14/8/2015 when she missed her monthly periods. Her step mother returned home in October 2015. The appellant continued to defile her. On 19/11/2015 her step mother witnessed the appellant defiling her at the couple’s bedroom. She reported to her step mother that she was pregnant but she did not take any action. He continued to defile her. Her step mother gave her drugs to abort the baby but it did not work. A step-brother to the appellant, SMW, PW2 learnt of the matter from the wife of the appellant. A village elder PW3 also learnt of the matter. On 5/4/206 PW2 and the village elder PW3 reported to P.C. Opiyo P.W.8 of Harambee police station. P.C. Opiyo went and recorded a statement from the girl. The girl gave birth to a baby boy on 22nd April, 2016 at Bungoma District Hospital. On 25/5/16 Sgt. Mwitau PW7 of Ejinja AP post arrested the appellant. He was taken to Matungu Police Station and charged with the offence.

7. Investigations were conducted in the matter. A P3 form was issued to the girl. On 31/5/16 she was examined by a clinical officer at Matungu Sub-county hospital. The girl had by then delivered. The baby was 5 weeks old at the time. On the 30/9/2016, P.C. Opiyo escorted the appellant, the complainant and the complainant’s baby to the Government Chemist at Kisumu for a DNA test. Swabs were taken from them. A buccal DNA test was conducted on the three of them. It was found that the child AR shared half DNA from the complainant and from the appellant. It was concluded that there was 99. 99% chance that the appellant was the biological father of AR and the complainant. A report was prepared by a government analysist P.W.4. During the hearing P.W. 4 produced the DNA report as exhibit, Pexh 7. A clinical officer P.W.5 produced the treatment notes and the P3 form as exhibits, P. Ex 4 and 5 respectively. Dr. Makokha PW6 produced the discharge summary and medical notes from Bungoma District Hospital as exhibits, P.exh 2 and 10 respectively.

Defence Case -

8. When placed to his defence the appellant gave an unsworn statement in which he stated that the complainant is his daughter. That she was aged 17 years (at the time that he testified). That on 25/12/14 he left home with his two sons and went to Mumias to attend overnight prayers. He returned home on the following day at 9 a.m. On the following day he went to work away from home. He stayed there for 1-2 weeks. Later after a long time in 2016 he was arrested by a police officer. He was taken to Harambee police station. He was detained there for 5 days and then arraigned in court. He denied committing the offence.

Submissions -

9. The appellant submitted that some crucial witnesses were not called to testify in the case. These included the complainant’s step-mother whom the complainant said witnessed the appellant defiling her at their house on the 19/11/2015, the Imam of the mosque who is said to have reported the incident to P.W.2 and a colleague of the government analyst PW4 whom PW4 said took samples from the appellant and the complainant. The appellant urged the court to make an inference that had the said witnesses been called their evidence would have tended to be adverse to the prosecution case as was stated in Bukenya & Others –Vs- Uganda(1972) EA 549.

10. The appellant submitted that there were material contradictions in the prosecution evidence. That whereas P.W.2 said that he received the report from the Imam, PW3 on the other hand said that he is the one who informed P.W.2 of the incident. The appellant took issue with why P.W.2 and P.W.3 took 6 months to report the matter to the police.

11. The appellant submitted that the charge sheet was defective in that it indicated that the appellant was arrested on 29/4/2016 and arraigned in court on 30/4/2016 yet the evidence of the investigating officer P.W.8 indicated that the appellant was arrested on 25/4/2016.

12. The appellant further submitted that the trial court relied on the DNA report without considering that the sample was conducted in non- compliance with Section 35(5) of the Sexual Offences Act No. 3 of 2006. That the tests were carried out without being supervised by the court. That in the circumstances the results cannot be trusted.

13. The appellant submitted that the trial court failed to consider that there was a land dispute between him and PW2 who had made him to be arrested over the land dispute. That the trial court erred in rejecting his defence.

14. The appellant further submitted that he was placed in custody for 5 days before being arraigned in court which was in violation of his rights under article 49 (f) of the constitution that requires an accused person to be produced before a court of law as soon as reasonably possible but not later than 24 hours after arrest. That the investigating officer did not give a reasonable explanation why she did not produce him in court within the time stipulated by the constitution.

15. The appellant submitted that he was not provided with witness statements and other documentary evidence relevant to the case which was a violation of his right to fair hearing as provided by article 50(2) (c) and (j) of the constitution.

16. The Prosecution Counsel, Mr. Ngetich, on his part submitted that the appellant did not dispute that he was the biological father to the complainant and the child born of the illicit affair between him and his daughter. That the DNA test on the baby corresponded with the DNA of the appellant. That there was evidence to corroborate the instances of sexual intercourse between the appellant and his daughter. That the trial court found the victim to be a credible witness. That the appeal should fail.

Analysis and Determination -

17. This being a first appeal the duty of the court as was stated in Kiilu & Another –Vs- Republic (2005) IKLR 174 that:-

“An appellant in a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision in the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

18. The appellant submitted that the charge was defective. Section 134 of the Criminal Procedure Code provides as to what should be contained in a charge. It provides that:-

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

19. In Sigilani Vs Republic (2004) 2KLR 480 it was held that:-

“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to specific charge that he can understand. It will also enable the accused to prepare his defence.”

20. The offence that the appellant was facing and the particulars of the offence were clearly stated in the charge sheet. That the charge sheet wrongly stated the date that the appellant was arrested did not make the charge defective as the day of the accused’s arrest was not a component or ingredient of the charge. There was thereby no defect in the charge.

21. Granted that the complainant’s stepmother, the Imam and PW4’s colleague did not testify in the case. The position of the law is however that there is no particular number of witnesses required to prove a particular fact unless the law provides otherwise section - 143 of the Evidence Act. However where the evidence adduced by the prosecution is barely sufficient and the prosecution failed to call some witnesses, the court may make an inference that had these witnesses been called their evidence would have tended to be adverse to the evidence for the prosecution – See Bukenya & Others –Vs- Uganda (1972) EA 549. The question in the case against the appellant was whether there was sufficient evidence to sustain a conviction even without the evidence of the witnesses who were not called.

23. The manner of treating contradictious and discrepancies in a case was as stated by the Court of Appeal in Jackson Mwanzia Musembi –Vs- Republic (2017) eKLR where the court cited with approval the Ugandan case of Twahangane Alfred Vs Uganda, Cr. Appeal No. 139 of 2001( 2003) UG CA,6 where the court held that:

“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”

24. That PW2 and 3 differed as to who informed PW2 of the incident was not such a crucial contradiction in the case that it should lead to their evidence being dismissed. As was stated by the Court of Appeal in the case of Philip Nzaka Watu –Vs- Republic (2016) eKLR some inconsistency in the evidence may signify veracity and honesty of the witnesses. I do not believe that PW2 and PW3 deliberately wanted to lie to court.

25. Section 35(5) of the Sexual Offences Act relates to treatment and counseling of a convicted person or victim of the offence under the sexual offences act. The section is thereby not relevant to the appeal. There was no evidence to support submissions by the appellant that the officer who conducted the DNA test could have manipulated it. There is then no substance in that argument.

26. The appellant’s step brother PW2 stated in his evidence that there was a land dispute between the appellant and PW2’s father. He said that his father had sent him to have the appellant arrested for burning the cane to his (PW2’s) father.

27. It is clear that it is not PW2 who brought up the complaint that the appellant had defiled the complainant. It is the complainant (PW1) herself who brought up the complaint. PW2 only received the report and took the matter to the police. A village elder PW3 had also received the report and reported the matter to the police. The incident had thereby nothing to do with the land dispute between the appellant and PW2’s father.

28. Article 49 of the constitution provides that:-

“Every arrested person has the right –

(f) to be brought before a court as soon as reasonably possible, but not later than:

(i) twenty four hours after being arrested or

(ii) if the twenty-four hours ends outside ordinary court hours, or midday that is not an ordinary court day, the end of the next court day.”

29. The appellant in the instant case was not taken to court until after 5 days after his arrest. The police thereby did not comply with the above stated provisions of the constitution. However, the grievance of the appellant in that respect can be addressed in a civil dispute to recover damages against the state and not in this criminal matter.

30. Article 50(2) of the constitution provides that:

“Every accused person has the tight to a fair trial, which includes the right -

(c) to have adequate time and facilities to prepare a defence.

(j) to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence.”

31. I have gone through the trial record. There is nowhere in the proceedings where it is indicated that the appellant was provided with witness statements and other documentary exhibits that the prosecution intended to rely on in the case.

32. Under the provisions of article 25 of the constitution the right to a fair trial is one of those rights and fundamental freedoms that cannot be limited. The right to be provided with copies of the documents that the prosecution intends to rely on in a case was emphasized by the Court of Appeal in Thomas Patrick Gilbert Cholmondeley –Vs- Republic Nairobi CA Criminal Appeal No. 116 of 2007 (2008) eKLR, which case was decided under the former constitution, that:-

“We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under …. our constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items.”

33. In the Simon Githaka Malumbe -Vs- Republic, Nyeri Criminal Appeal No.314 of 2010 (2015) eKLR the Court of Appeal quashed a conviction on the grounds that the prosecution had failed to furnish the appellant with witness statements despite the appellant requesting for them.

34. In Julius Rotich –Vs- Republic (2019) eKLR where the trial court did not inform the appellant of his right to receive witness statements by directing that the same be given to him at the time of arraignment. Majanja, J. held that the appellant’s right to witness statements under Article 50 (2) (j) of the constitution was violated.

35. In the instant case the appellant was not provided with witness statements and documentary exhibits that the prosecution was to rely on in the case. He was thereby denied his right to prepare for his defence. His rights under article 50 (2) (c) and (j) of the constitution were violated. It cannot be said that the charge was proved beyond reasonable doubt where there was a breach of the constitution. The conviction and the sentence should thereby not stand. The conviction is thereby quashed and sentence set aside.

36. It is the trial court that was to blame for not complying with the provisions of a fair trial as stipulated in the constitution. Should the court in the circumstances set the appellant at liberty or order a re-trial?

37. The general principle in regard to re-trials is that a re-trial should only be ordered where it is unlikely to cause injustice to the accused. In Obedi Kilonzo Kevevo –Vs- Republic (2015) eKLR the Court of Appeal held that:-

“Generally, where a suspect has not had a satisfactory trial, the fairest and proper order to make is an order for a retrial. A retrial on the other hand will be ordered only where the interests of justice require it and if it is unlikely to cause injustice to the appellant.In the case of Muiruri –Vs- Republic (2003) KLR 552, the court considered a similar situation and held as follows, inter alia:-

“Generally whether a re-trial should be ordered or not must depend on the circumstances of the case. It will only be made where the interest of justice require it and if it is unlikely to cause injustice to the appellant. Other factors include illegalities or defects in the original trial, length of time having elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely the prosecution making or not.”

In the criminal justice system, the law requires that the right of the appellant must be weighed against the victim’s right. In this case the appellant has been in confinement for three (3) years. Balancing the two competing interests, we believe justice demands that the case be re-heard in the subordinate court.”

38. In Samuel Wahini Ngugi –Vs- Republic (2012) eKLR the said court held that:-

“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 person’

39. The appellant was charged in May 2015 and convicted in November 2017. The offence he was charged with carries a maximum sentence of life imprisonment. He has served less than two years of that sentence. The witnesses in the case can easily be found. The re-trial is unlikely to cause him any injustice. I accordingly order that the appellant be re-tried of the offence. I direct that the appellant be produced before the Mumias Senior Principal Magistrate’s court for the purpose of being retried for the offence by a magistrate of competent jurisdiction other than the one who handled the case.

Delivered, dated and signed in open court at Kakamega this 10th day of July, 2019.

J. NJAGI

JUDGE

In the presence of:

Mr. Juma for state

Appellant - present

Court Assistant - George

14 days right of appeal.