[2022] KEHC 11765 (KLR)

Jeptoo v ODPP/Republic (Criminal Appeal E011 of 2021) [2022] KEHC 11765 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11765 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal E011 of 2021

RN Nyakundi, J

May 19, 2022

Coram: Hon. Mr. Justice R. Nyakundi Mr. Wambua Kigamwa & Company for the appellant Mr Mugun for the State

Between

Joyce Jeptoo

Appellant

and

ODPP/Republic

Respondent

(Being an appeal against the conviction and sentence of the Hon. P.W Wasike - RM dated 13th November 2018 in Kapsabet SPM Criminal Case no. 2587 of 2015)

Judgment

1. What is before this court is an appeal against the conviction and sentence of the Hon. P.W Wasike RM dated 13th November 2018 instituted by way of petition of appeal. The appellant was convicted for the offence of intentionally administering a substance (alcohol) to a child under the age of 15 years with the intention to stupefy for sexual activity contrary to section 27(1)(a) as read with section 27(3) of the Sexual Offences Act no. 3 of 2006. The appellant was convicted and sentenced to serve 10 years’ imprisonment.

2. The appeal is based on the following grounds;1)That the learned magistrate erred in law and fact in failing to comply with section 200 of the Criminal Procedure Code.2)That the learned magistrate erred in law and fact in failing to find that there was failure to comply with sections 210 and 211 of the Criminal Procedure Code.3)That the learned magistrate erred in law and fact in failing to draw an adverse inference against the prosecution over the failure to call several prosecution witnesses as laid down in Bukenya v Uganda (1972) E.A 549. 4)That the learned magistrate erred in law and fact in failing to find that no medical evidence of the required standard existed to convict the appellant for the offence of defilement.5)That the learned magistrate erred in law and fact in failing to find that the age of the victim was proved in order to constitute the offence of defilement as charged.6)That the learned magistrate erred in law and fact in failing to find that the offence of defilement was not proved beyond reasonable doubt.

3. It is the appellant’s case that the trial magistrate failed to comply with section 200 of the Criminal Procedure Code by omitting to inform the making a note of the explanation of the right of the accused to apply for the recall of witnesses who had testified before the succeeding magistrate or to have the trial proceed from where it had reached. That it is clear from the record that the succeeding trial magistrate did not inform the accused of the right to have witnesses who had testified summoned and re-heard. the appellant was prejudiced by the failure to comply with the law. The appellant cited the case of Daniel Oduya Oloo v Republic (2018) eKLR and Opicho v Republic (2009) KLR 369 in support of this submission.

4. The appellant submitted that a retrial would not serve the interest of justice. That it is clear from the marked absence to avail several witnesses to testify who despite being mentioned by the complainant were not availed by the prosecution to testify. He cited the case ofBukenya v Uganda (1972) E.A 549.

5. The appellant submitted that the medical evidence in this matter is below the standard required to convict the appellant for the offence as the P3 form shows the offence of defilement was not committed. He cited the evidence of PW4 as led in Kapsabet SPM Criminal Case No. 2588 of 2015. No medical evidence of intoxication on the part of the complainant was led by an expert.

6. The complainant failed to establish based on section 27(2) of the Sexual Offences Act 2006 that the appellant administered or caused her to take any substance with a view of engaging in a sexual activity with her.

7. The appellant submitted that the particulars of the offence as charged omitted vital ingredients required by section 27(1) of the Sexual Offences Act, 2006. The charge sheet never mentioned that the accused administered the substance with the intention of causing her to engage in sexual activity with her. The court also failed to find that the holding of separate trials or the non-consolidation of the matters between Dickson Kipkogei and the appellant prejudiced her right to a fair hearing. the evidence in both matters was similar and the alleged criminal acts arose out of the same transaction this the finding that Dickson Kipkogei was not guilty meant the appellant was not guilty.

8. The respondent’s case is that the prosecution called a total of five witnesses who were able to place the appellant on the scene and linked them to the offence. The complainant testified consistently and narrated how the appellant got her as she was grazing and gave her alcohol and gave her to drink. That the complainant clearly explained the whole ordeal.

9. The ingredients of the offence were proved beyond reasonable doubt. The appellant was not a stranger to the complainant and identification was by recognition. He told the complainant to sleep with Dickson and locked the room where they were from the outside.

10. The respondent submitted that the appellant was not charged with the offence of defilement therefore the mention of Dickson’s name was not of any value to the prosecution’s case. Failing to charge the appellant jointly with Dickson is not an error and is not fatally defective to the respondent’s case.

11. The five witnesses who were called were able to prove beyond reasonable doubt that the appellant was linked to the offence and placed at the scene of the crime. PW1 gave a consistent narration of what transpired. Her evidence was corroborated by her mother PW3 and the doctor PW5. The arresting officer and investigating officer testified as PW3 and PW4.

12. The penalty was reasonable and commensurate to the magnitude of the offence that was committed.

Analysis and Determination 13. In determining this appeal, this court being a first appellate court is alive to and takes into account the principles laid down in the case of Okeno vs. Republic (1972) EA 32 where the Court of Appeal for Eastern Africa stated that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the junction of a first appellate Court merely to 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, see (Peters V Sunday Post 1978) E.A. 424. ”

Issues for Determination 14. Upon perusal of the pleadings and submissions of the parties herein I have identified the following issues for determination;1)Whether the trial court failed to comply to section 200 of the Criminal Procedure Code2)Whether the trial court failed to comply to section 210 and 211 of the Criminal Procedure Code3)Whether the charge sheet was defective4)Whether the medical evidence satisfied the burden of proof5)Whether the charge sheet was defective

Whether the Trial Court Failed to Comply to Section 200 of the Criminal Procedure Code 15. Section 200 of the Criminal Procedure Code provides;(1)Subject to sub-section (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—(a)deliver a judgment that has been written and signed but not delivered by his predecessor; or(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.(2)…..(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 witness be re-summoned and re-heard and the succeeding magistrate shall inform the accused person of that right.

16. A clear reading of these provisions leads to the conclusion that it is upon the accused person to demand that the witnesses be re-summoned. However, the succeeding magistrate has a duty to inform the accused person of that right. A perusal of the proceedings shows that the accused was made aware of this right on 11th September 2018. It is evident that the accused was therefore accorded a fair trial in this regard.

Whether the Trial Court Failed to Comply to Section 210 and 211 of the Criminal Procedure Code 17. Section 210 refers to acquittal of a person with no case to answer and therefore does not apply to the appellant. Section 211 was explained as per the proceedings on 30th October 2018. In the premises I find that the trial court complied with section 211 of the Criminal Procedure Code.

Whether the Offence was Proven Beyond Reasonable Doubt 18. the appellant was convicted of an offence under section 27(2) of the Sexual offences act. Section 27 provides;(1)Any person commits an offence if he intentionally administers a substance to, or causes a substance to be administered to or taken by, another person with the intention of—(a)stupefying; or(b)overpowering that person, so as to enable any person to engage in a sexual activity with that person.(2)In proceedings for an offence under this section it is for the complainant to prove that the accused person administered or caused the alleged victim to take any substance with a view to engaging in a sexual activity with the alleged victim.

19. this court being an appellate court has the duty to re-examine the evidence that was before the trial court to assess whether the trial court proceeded on wrong principles. Given that this is a criminal matter, the standard of proof is one that should be beyond reasonable doubt. the question that arises is with regards to proof that the accused person administered a substance that caused the complainant to be stupefied. there was no evidence produced by the prosecution or the complainant that proved that this. Section 27(2) is clear in its provision with regards to who the burden of proof falls on. No medical evidence was led to prove the substance was administered. There was no witness who corroborated the purchasing and administration of alcohol to the complainant.

20. However, section 124 of the Evidence Act provides;Corroboration required in criminal casesNotwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth

21. The exception to the rule on corroboration is where it is a criminal case involving a sexual offence therefore I find that the trial court did not err in finding the accused guilty based on the testimony of the complainant.

22. In the premises the appeal fails in its entirety.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19TH DAY OF MAY, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:Mr Mark Mugun for the state