[2017] KEHC 2817 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL APPEAL NO. 53 OF 2016

J A O……………………..…………………………….APPELLANT

VERSUS

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

(Appeal against Judgment, Conviction and Sentence imposed in Maseno Criminal Case Number 746 of 2012 byHon. M.C.Nyingei RM on 15. 1.15

JUDGMENT

The trial

The Appellant herein J A Ohas filed this appeal against his convictionandsentenceonthe firstchargeofdefilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006 and the second charge of incest by male contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the first charge are that

On diverse dates between the year 2011 and 11th May 2012 at an unknown time at [Particulars Withheld] Sub-Location in Kisumu West District within Kisumu County intentionally and unlawfully penetrated into the female genital organ namely vagina of C. A a child aged 10 years.

The particulars of the second charge are that

On diverse dates between the year 2011 and 11th May 2012 at an unknown time at [Particulars Withheld] Sub-Location in Kisumu West District within Kisumu County intentionally and unlawfully penetrated into the female genital organ namely vagina of C. A a child aged 10 years who to his knowledge is his daughter.

The prosecution’s case

The prosecution called 4 (four) witnesses in support of the charges. PW1 the complainant testified that she was 10 years old and in class one. She recalled that on the 11. 5.12, her mother was away and she had been left with her brother R with whom they used to share a bed and her father, the appellant herein. It was her testimony that the appellant returned home drunk, removed her to his bed where he defiled her before taking her back to her bed. She said that the appellant defiled her on another occasion whose date she could not recall.

PW2 PC Yatich, the investigating officer recalled that on 19. 6.12, complainant was taken to the police station by a teacher. That upon interrogation, complainant reported that her father had defiled her. That the complainant was taken to hospital and appellant was arrested the following morning and charged.

PW3 Mary Alendi, a teacher at [Particulars Withheld] Primary School and the complainant’s class teacher, recalled that complainant was a poor performer and a late comer and that upon interrogation; she reported that her father had defiled her. That she reported the matter to the children’s officer and handed over the complainant to the said officer.

PW4, Mose Jones, a clinical officer stated when he examined complainant on 22. 6.12 and found that her hymen was broken and she had a foul smell in her genitalia.She produced complainant’s and appellant’s P3 forms as PEXH. 1. That on the same date; he examined the appellant but did not notice anything useful. He produced the appellant’s P3 form as PEXH. 2.

The Defence Case

When he was put on his defence, the appellant gave an unsworn testimony in which he denied the offences. The learned trial magistrate considered the evidence and finding the charges proved against the appellant sentenced him to life imprisonment in both counts. The court ordered that the sentences run concurrently.

The Appeal

Being dissatisfied with the conviction and sentence, the appellant lodged the instant appeal. In his amended grounds of appeal filed on 30. 5.17, the appellant set out 5 grounds of appeal to wit:-

1. That the learned trial magistrate erred in law and in fact by convicting the appellant on the charge of defilement without considering that the age of the complainant was not proved beyond any reasonable doubt.

2. That the learned trial magistrate erred in law and in fact by failing to observe the principle of double jeopardy while sentencing the appellant to serve 2 terms of life imprisonment

3. That the learned trial magistrate erred in law and in fact by failing to give an opportunity to the appellant to cross-examine PW1 which was contrary to section 208 of the Criminal Procedure Code thus denying him an opportunity to adduce and challenge evidence as envisaged under Article 50(2)(k) of the Constitution

4. That the learned trial magistrate erred in law and in fact by failing to uphold the provisions of Article 21(1) of the Constitution and failed to note that the prosecution failed to comply with the provisions of Article 50(2)(j) of the Constitution

5. That there was an irregularity with the trial which resulted to an unsound judgment that made the whole trial null and void.

During the hearing of the appeal on 11. 7.17, the appellant relied on his amended grounds of appeal and written submissions. Ms. Wafula, learned Counsel for the state offered to file written submissions but when the matter came up for mention on 25. 7.17, the submission had not been filed and counsel did not make any oral submissions.

Analysis

Thisbeingacourtoffirstappeal, I am expected to subject the entire evidence adduced before the trial court to a fresh evaluation and analysis while bearing in mind that I neither saw nor heard any of the witnesses and have to give due allowance. I am guided by the Court of Appeal’s decision in the case of Issac Ng'ang’a Alias Peter Ng'ang'a Kahiga V Republic Criminal Appeal No. 272 of 2005 which held as follows:-

“in the same way, a court hearing a first appeal (i.e. a first appellate court) also has duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same.

There are now a myriad of case law on this but the well-known case of Okeno v Republic (1972) EA 32 will suffice. In this case, the predecessor of the Court of Appeal stated:-

The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; 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 (See Peters Vs. Sunday Post, (1958) EA 424)'

The trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and this court is in dealing with this appeal obligated to give allowance for that.

Determination

In dealing with this appeal, I will consider only groundnumber 3 because in the event that it is established, the court will not need to belabor itself with the other grounds.

Section 208 of the Criminal Procedure Code provides as follows:-

(1)Iftheaccusedpersondoesnotadmitthetruthofthecharge,thecourtshall proceed to hear the complainant and his witnesses and other evidence (if any).

(2) The accused person or his advocate may put questions to each witness produced against him.

(3) Iftheaccusedpersondoesnotemployanadvocate,thecourtshall,at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer.

From the evidence on record, it is apparent that after the close of the evidence by the complainant, the court proceeded to fix the case for a further hearing date and complainant who had given unsworn evidence was therefore not cross-examined.

The issue of cross-examination of child witnesses that give unsworn evidence was settled by the Court of Appeal inMSA CRA No.373 of 2006 Nicholas Mutula Wambua v Republicwhere it quoted with approval the decision of the Supreme Court of Uganda in Sula v Uganda [2001] 2 EA 556that:

“The Second point we wish to discuss is whether or not a child witness, who gives evidence not on oath is liable to cross-examination. There appears to be a widespread misconception that a child witness who is allowed to give evidence without taking oath because of immature age, should not or cannot be cross-examined.... It would appear that misconception arises from a view that because accused persons are not cross-examined whenever they make unsworn statements in the defence, child witnesses who did not take the oath should be treated in the same way. Such a view is oblivious of the peculiar protection given to an accused person in the form of a right to make an unsworn statement with no liability to be cross-examined”.

That thinking is expressed in Section 208 of the CPC which governs hearing of criminal proceedings in the Magistrate's courts. It provides that during the hearing, “the accused persons or his advocate may put questions to each witness produced against him”. Accordingly, all prosecution witnesses are liable to be cross-examined in order to test the credibility and the veracity of the witness. The trial courts should always observe that requirement of the law in all criminal trials to obviate an otherwise stable case from being lost on that omission.

The trial court, therefore, fell into an error when it failed to afford the Appellant an opportunity to cross-examine PW1 and PW3.

In the case of Michael Kamoru Guantai v Republic [2013] eKLR, the court held:

From the record, there is nothing to show that the Appellant was informed of the right to cross-examine PW1 or was called upon by the trial court to cross-examine PW1. It was incumbent upon the trial court to have informed the Appellant of the right of cross-examination, especially where he was not represented by a legal counsel, and if the Appellant did not have any question to put to the witness, it should have recorded that fact. That is the law and should be the standard procedure in a criminal trial. Thus, that failure by the trial court was a fatal omission which entitles the Appellant to assert that he was not afforded the opportunity to cross-examine those witnesses. It is a kind of judicial error on which a court of law may ordinarily quash the conviction and set aside the sentence which I hereby do.

Similarly in the case ofBGM HCCRA No 141 of 2011 [2013] eKLR,a similar situation was considered and the court rendered itself thus:

I would want to believe, presumably, the trial court was acting under a misconception that a child of tender age who gives an unsworn statement as a witness for the prosecution, should enjoy the protection that the accused enjoys when he makes unsworn statement in his defence. That is not it. The very nature of a criminal proceeding clothes the accused person with certain staple protections in the Constitution and Statute law as part of the right to fair hearing, say, right to remain silent or give unsworn statement without being liable to cross-examination. In law, there are no corresponding rights that accrue to the witnesses for the Prosecution

I associated myself with the cases analyzed herein above and further find that appellant’s right to challenge evidence that is enshrined in Article 50(2) (k) was breached.

I have considered whether this would be an appropriate case for re-trial. I have considered the principles for re-trial enunciated in Benard Lolimo Ekimat V R Criminal Appeal No. 151 of 2004in which the Court of Appeal held:-

There are many decisions on the question of what appropriate case would attract an order of retrial but on the main, the principle that has been acceptable to court is that each case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where interests of justice require it.

The phrase "in the interests of justice" potentially has a broad scope. It includes the right to fair trial, which is a fundamental right of the accused. In the context of the right to a fair trial, the time the case has lasted, the period the appellant was in prison, the weight of the evidence and the possibility of a conviction needs to be considered.

In this regard, I find it necessary to emphasize that fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of thesociety, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. There has to be a fair trial and no miscarriage of justice should be permitted and under no circumstances should prejudice be caused to the accused.

I am not persuaded that a retrial can be conducted without causing injustice to the appellant in this case. First, he was first arraigned in court on 25. 6.12 and he was in prison for 14 months before he was released on bail. He stood trial, went through the entire process and he tendered his defence. Having already tendered his defence in the lower court, I find that a retrial will not be without prejudice because the prosecution is already aware of his defence.

Secondly, the Double Jeopardy rule will be infringed in that the appellant will be tried twice for the same offence. Appellant was convicted on 15. 1.15 and he has already served a prison term of 2 years and 8 months.On the totality of the evidence on record, I find that the interest of justice in this case does not justify a re-trial.

ORDERS

In view of the foregoing analysis, this appeal is thus allowed. The conviction is hereby quashed and the sentence is set aside. It is ordered that the appellant be set at liberty unless otherwise lawfully held.

DATED AND DELIVERED THIS….…3rd…….…DAY OF……October…….. 2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Present in Person

For the State-Ms Wafula