[2010] KEHC 679 (KLR)

REPUBLICOFKENYA

IN THE HIGH COURT OFKENYA

ATMOMBASA

CRIMINAL APPEAL NO. 67 OF 2009

(From Original Conviction and Sentence in Criminal Case No. 406 of 2007 of the Resident Magistrate’s Court at Wundanyi: F. Munyi – R.M.)

JAMES MWANGEMI ................................ APPELLANT

VERSUS

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

JUDGEMENT

The Appellant herein JAMES MWANGEMI, has filed this appeal challenging his conviction and sentence before the subordinate court on a charge of DEFILEMENT OF A GIRL CONTRARY TO SECTION 8(3) OF THE SEXUAL OFFENCES ACT, 2006. The particulars of the charge were that

“On the 10th day of August 2007 in Taita-Taveta District withinCoastProvince, had unlawful carnal knowledge of R.M a girl of the age of fourteen years.”

In addition the Appellant faced an alternative charge of INDECENT ASSAULTONA FEMALE CONTRARY TO SECTION 11(1) OF THE SEXUAL OFFENCES ACT, 2006.

The Appellant entered a plea of ‘not guilty’ to both charges and his trial commenced before the learned Resident Magistrate sitting at Wundanyi Law Courts on18th October 2007. The prosecution led by INSPECTOR OMBOGO called a total of five witnesses in support of their case. At the close of the prosecution case the Appellant was ruled to have a case to answer and was placed on his defence. He elected to give an unsworn statement in which he denied the charges. On 26th March 2009 the learned trial magistrate delivered his judgement in which he convicted the Appellant on the main charge of Defilement and thereafter sentenced him to serve twenty (20) years in jail.

The Appellant who was unrepresented by counsel at the hearing of this appeal chose to rely entirely upon his written submissions which with the leave of the court had been duly filed. MR. ONSERIO, learned State Counsel opposed the appeal and made oral submissions in which he urged the court to uphold both the conviction and sentence of the lower court.

I have carefully perused the record of the proceeding from the lower court. I have noted one glaring anomaly which I am surprised Mr. Onserio overlooked. On18th October 2007 the complainant R.M commenced her testimony led by the prosecutor. At page 3 line 1 the complainant stated

“I was issued a P3 at the hospital.”

At that point the prosecutor made the following application

“I realized I do not have the P3 with me. The investigating officer senior sergent Murage informs me that he left it behind by mistake he came with a wrong P3. I pray that PW1 be stood down and she be given another date to enable us go on with the hearing.”

This application was allowed. The complainant was stood down before she completed her testimony. More importantly the Appellant was not given an opportunity to cross-examine the complainant. The hearing proceeded next on 6th December 2007 when PW2 P.W was called to the stand. Thereafter the remaining prosecution witnesses testified in sequence. At no time was the complainant re-called to the stand to complete her testimony. On 25th September 2008, the prosecution closed their case. The failure to allow the complainant to testify was in my view a fatal omission by the prosecution. S. 208(2) of the Criminal Procedure Code provides

“The accused person or his advocate may put questions to each witness produced against him.”

This provision was not complied with. The rules of natural justice demand that an accused be granted an opportunity to confront his accuser. The complainant in this case was the accuser. The Appellant was not given a chance to confront her and to challenge her evidence by way of cross-examination. This in my view renders the trial a nullity. I can only explain this glaring omission by the fact that the trial in the lower court was conducted by two different magistrates. HON. F. MUNYI Resident Magistrate took over the case after HON. J.N. NDUBI Resident Magistrate, had heard two (2) witnesses. The incoming magistrate ought to have perused the proceedings before she came on record and had she done so I have no doubt that she would have noted this anomaly. Hon. Munyi did in her judgement note at page J1 line 29

“PW1 was stood down for the prosecution to obtain the correct P3 form and she did not proceed with the hearing”

Surprisingly despite noting this anomaly the trial magistrate still proceeded to render a conviction as against the Appellant. It is my view that she erred in so doing. The omission to allow the Appellant to cross-examine the complainant, who was the key witness, was in my view fatal to the prosecution case and rendered the trial null and void. On that ground alone I do allow this present appeal. I quash the conviction of the Appellant and the subsequent sentence is hereby set aside.

Having said that I am mindful of the fact that the offence with which the Appellant was charged is a serious offence. The victim was a minor and I have considered the weight of evidence available. The witnesses were all residents of Werugha Location and it is my belief that they can be traced easily. The Appellant has served less than 2 years of a 20 year term. A re-trial will not prejudice him. For the above reasons I order a retrial of this case.

Mention on10th November 2010 before the Resident Magistrate Wundanyi Law Courts for fresh plea to be taken.

Dated and Delivered inMombasathis 26th day of October 2010.

M. ODERO

JUDGE

Read in open court in the presence of:-

Appellant in person

Mr. Muteti for State

M. ODERO

JUDGE

26/10/2010