[2017] KEHC 3808 (KLR)

JKM v Republic (Criminal Appeal 198 of 2014) [2017] KEHC 3808 (KLR) (13 July 2017) (Judgment)

J K M v Republic [2017] eKLR

Neutral citation: [2017] KEHC 3808 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal 198 of 2014

CW Githua, J

July 13, 2017

Between

JKM

Appellant

and

Republic

Respondent

(Being an Appeal from the original conviction and sentence by Honourable B. MOSIRIA Principal Magistrate, dated 1st December, 2014, in Kapsabet Principal Magistrate’s Court Criminal Case No. 2678 of 2010)

Delay in conclusion of a trial does not deprive a child offender of the protection meant to safeguard rights of children

The case held that sentencing of a child offender as an adult simply because the trial of a child had been unduly delayed was prejudicial and amounted to a miscarriage of justice. The court further emphasized the need for the trial courts to be guided by the provisions of section 191 of the Children Act, 2001 when sentencing a child offender so as to avoid imposing an illegal sentence on a child or to an accused person who committed the offence while they were a child.

Reported by Moses Rotich

Constitutional Law- Bill of Rights - rights of a child - the right to a fair trial-where the appellant (a minor) was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act-where the appellant alleged that failure by the trial court to record the language used in court during trial violated his right to a fair trial-claim by the appellant that his right to legal representation was violated as some proceedings were conducted in the absence of his advocate-whether failure by the trial court to record the language of the court during trial vitiated the appellant’s conviction-whether the trial court in conducting the trial proceedings in the absence of the appellant’s advocate violated the appellant’s constitutional right to legal representation-Constitution of Kenya, 2010, articles 50(1), 50(2)(g) and 50(2) (m); Sexual Offences Act, No 3 of 2006 sections 8(1) and 8(2).Constitutional Law- Bill of Rights-rights of a child-the right of a child not to be detained except as a measure of last resort-where the appellant, who was a child at the time of commission of the offence, was convicted of defilement and sentenced to life imprisonment-whether the sentence of life imprisonment meted on the appellant by the trial court was illegal and in violation of the Constitution and the Children Act-Constitution of Kenya 2010, article 53(1)(f); Children Act, 2001 section 190(1).

Brief facts The appellant (a minor) was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006 (Sexual Offences Act). In the alternative, the appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. After a full trial, the appellant was convicted with the main charge of defilement and sentenced to life imprisonment by the trial court.Aggrieved by the judgment of the trial court, the appellant filed an appeal on both conviction and sentence. It was the appellant’s case that the trial court erred in law and fact in sentencing him to life imprisonment while he had been proved to be a minor aged 14 years.Further, the appellant contended that he was denied the right to a fair hearing as the language used to read and explain the charge to him was not indicated in the court record. It was the appellant’s further contention that his constitutional right to legal representation was violated as some proceedings were conducted in the absence of his advocate.

Issues

Whether failure by the trial court to record the language of the court during trial vitiated the appellant’s conviction.

Whether in conducting the trial proceedings in the absence of the appellant’s advocate, the trial court violated the appellant’s constitutional right to legal representation.

. Whether the sentence of life imprisonment meted on the appellant who was a minor at the time of commission of the offence, was illegal and violated article 53 of the Constitution of Kenya, 2010, and section 190 of the Children Act.

Whether the delay caused by the complexities in the child offender’s trial violated his right to having the matter determined without delay under section 186(c) of the Children Act, 2001.

Held

Courts had a duty to ensure that an accused person was able to follow the proceedings from the beginning to the end in a language that the accused understood. That was why the facility of free interpretation was given to an accused person as of right to ensure that he understood the proceedings even if the accused was not proficient in the language used by the court and other participants in the trial. It was therefore crucial that courts noted on record the language used by the court, the witnesses and the language of interpretation if any.

It was clear from the trial court’s record that the appellant understood the charges and the evidence adduced by the 8 prosecution witnesses who testified in 3 different languages. There was no doubt that the appellant was able to follow all the proceedings given the manner in which he participated in the trial, including the way he cross-examined the witnesses.

When prosecuting his appeal, the appellant gave brief oral submissions in Swahili language while his submissions were written in English. Even though the language used in the trial was not indicated on the court’s record, the appellant fully understood whatever language was used in the trial court and was not prejudiced in any way.

The record showed that at the time the appellant was arraigned in court for plea, he had already picked an advocate of his choice. Therefore, the appellant was already aware of his right to legal representation and there was no need for the trail court to inform him of that right.

However, it appeared from the record that the appellant’s advocate attended the court only twice. The appellant’s advocate did not attend the court on all other subsequent dates. Though it would have been desirable for the trial court to inquire from the appellant what had become of his advocate, it was the appellant who ought to have volunteered information to the court regarding whether he still had an advocate and whether he needed to be given time to have his advocate attend the court to represent him in the trial.

The appellant did not apply for adjournment on grounds relating to unavailability of his advocate or on ground that he wished to engage a different advocate and his application rejected. There was no basis to hold that the appellant’s constitutional right to legal representation was denied.

There was no reason to fault the findings of the trial court on the credibility of PW1 and the evaluation of the evidence on record. The medical evidence and the P3 form proved without doubt that PW1 was defiled.

From the evidence on record, it was clear that the complainant and the appellant were not strangers. There was undisputed evidence that they were neighbors. The offence was committed at around 4. 00 pm which meant that it was in broad daylight. PW1 had walked and talked with the appellant for a short while before the offence was committed. It followed that the complainant’s recognition of her assailant was free from the possibility of error. The prosecution had proved the charge of defilement against the appellant beyond any reasonable doubt.

A scrutiny of the record reviewed that the age of the appellant was ascertained during trial through an age assessment report. The report confirmed that at the time of trial, the appellant was aged 14 years old. There was no doubt that at the time the appellant committed the offence he was a child within the meaning of section 2 of the Children Act.

The appellant ought to have been sentenced as a child and not as an adult. That was due to the fact that the appellant committed the offence as a child and not as an adult. Consequently, the appellant ought to have been punished as a child.

Had the appellant pleaded guilty or the trial had been concluded expeditiously as envisaged under section 186 of the Children Act, the appellant would have been sentenced as a child. The appellant ought not to have been denied the protection meant to safeguard the rights of children just because he had become an adult by the time his trial was concluded due to delays caused by complexities inherent in the justice system and which were not of his making and which were beyond his control.

The trial court fell into error when it imposed on the appellant a custodial sentence. The trial court failed to take into account the provisions of section 8(7) of the Sexual Offences Act which would have led it to consider the provisions of sections 190 and 191 of the Children Act which prescribed the lawful sentences which could be imposed on child offenders

Appeal partly allowed.

Orders i. The conviction of the appellant by the trial court was upheld.ii. The sentence of life imprisonment imposed on the appellant by the trial court was set aside.iii. The probation officer was directed to file a report with the court within 10 days of the court’s decision recommending the sentences under section 191 of the Children Act that would be most appropriate for rehabilitation of the appellant.iv. The appellant was to be released into the custody of the Eldoret GK remand prison till July 25, 2017 when the appeal was to be mentioned for purposes of receiving the probation officer’s report and for orders on sentencing.

Citations CasesKenya Kiilu & another v Republic [2005] KLR 175 - (Mentioned)

Kilonzo, Mwendwa & another v Republic Criminal Appeal 209 & 210 of 2004; [2013] KECA 184 (KLR) - (Mentioned)

Njoroge v Republic [1987] KLR 99 - (Mentioned)

Thiongo , George Mbugua v Republic Criminal Appeal 302 of 2007; [2013] KECA 449 (KLR) - (Mentioned)

Regional CourtOkeno v Republic [1972] EA 32 - (Mentioned)StatutesKenya Borstal Institutions Act (cap 92) In general- (Cited)

Child Offender Rules (cap 141 Sub Leg) rule 12- (Interpreted)

Children Act (cap 141) sections 2, 186, 190(1); 191 - (Interpreted)

Civil Procedure Rules, 2010 (cap 21 Sub Leg) In general- (Cited)

Constitution of Kenya article 50(g)(m) - (Interpreted)

Criminal Procedure Code (cap 75) sections 198, 200(3); 354- (Interpreted)

Evidence Act (cap 80) section 33(b) - (Interpreted)

Penal Code (cap 63) section 35(1)- (Interpreted)

Probation of Offenders Act (cap 64) In general - (Cited)

Sexual Offences Act (cap 63A) sections 8(1)(2)(7); 11(1) - (Interpreted)

AdvocatesMs Asiyo for the State

Judgment

1. The appellant JKM was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (the Act). He was also alternatively charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Act.

2. The particulars supporting the main charge of defilement alleged that on July 9, 2010 at [particulars withheld] village in [Particulars Withheld] sub location, Kurkung location in Nandi North district of the Rift Valley province, the appellant intentionally caused his penis to penetrate into the vagina of LC (Name withheld) a child aged seven years.

3. After a full trial, the appellant was convicted of the main charge. He was sentenced to life imprisonment.He was dissatisfied with his conviction and sentence. He proffered an appeal to this court through his petition of appeal dated December 11, 2014. On December 1, 2016, he sought and obtained leave to amend his grounds of appeal. He subsequently filed amended grounds of appeal on the same date.

4. In his amended grounds of appeal, he raised four grounds in which he complained as follows;(i)That the learned trial magistrate erred in law and fact by sentencing him to life imprisonment despite the fact that he was proved to be a minor aged 14 years.(ii)That he was denied the right to a fair hearing as the language used to read and explain the charge to him was not indicated on the court record.(iii)That his constitutional right to legal representation was violated as some proceedings were conducted in the absence of his advocate.(iv)That the trial magistrate erred in law and fact by convicting him without appreciating that penetration had not been proved beyond any reasonable doubt.

5. The appellant prosecuted his appeal in person. He relied on home made written submissions which he filed on December 1, 2016. He in addition made brief oral submissions.

6. In his submissions, the appellant mainly expounded on his amended grounds of appeal. He contended that as he had been proved to be a minor, his age just like that of the victim ought to have been considered in the trial; that the trial court’s omission to indicate the language used when he took his plea was fatal and ought to vitiate his conviction; that his right to legal representation was violated because there is a time he had counsel on record but the trial magistrate proceeded with the trial in his absence without enquiring whether the advocate was still on record or whether his services had been withdrawn. He further contended that the charges were not proved beyond reasonable doubt. He urged the court to find that he was wrongly convicted and sentenced and allow the appeal.

7. The appeal is contested by the state. Learned prosecuting counsel Ms Oduor while opposing the appeal asserted that the prosecution had adduced credible and watertight evidence which proved all the elements of the offence beyond any reasonable doubt; that the appellant was properly convicted and that his appeal should be dismissed for want of merit.

8. This is a first appeal to the High Court. I am well aware of the duty of the first appellate court which is to revisit all the evidence tendered before the trial court; to re-evaluate it to arrive at its own independent conclusions taking into account that unlike the trial court, it did not have the benefit of seeing and hearing the witnesses. See: Okeno v Republic 1972 EA 32;Kiilu & another v Republic [2005] KLR 175;Njoroge v Republic [1987] KLR 99.

9. I have carefully considered the grounds of appeal; the proceedings and all the evidence presented before the trial court alongside the submissions made by both the appellant and the state. I have also read the judgment of the learned trial magistrate.

10. The record of the lower court reveals that the trial in this case was conducted by two different magistrates. The trial opened before Hon A Lorot (SRM) on July 20, 2011. He proceeded to hear the entire prosecution case and had put the appellant on his defence before he was redeployed to another station. The case was then taken over by Hon B Mosiria (PM) who on the appellants request started the case denovo. Though the record does not show that she complied with the provisions of section 200(3) of the Criminal Procedure Code before taking over the trial, it is my view that this omission though a fundamental one did not occasion any prejudice to the appellant since the case started afresh in any event albeit for different reasons.

11. Turning to the complaint concerning language of the court not being disclosed on the court record, though the appellant specifically limited his complaint to the date he took his plea, it is important to note that at the heart of the right to a fair hearing is the requirement that an accused person must understand all the elements of the charges facing him and all the evidence adduced against him throughout the entire trial. This is so because this is the only way that an accused person can be able to cross examine witnesses and prepare his or her defence.

12. The above legal principle has been accorded both statutory and constitutional recognition. Under article 50(m) of the Constitution, an accused person has a right to have the assistance of an interpreter without payment if he cannot understand the language used at the trial.Section 198 of the Criminal Procedure Code provides that when an accused person is present in a trial, any evidence given in a language he does not understand shall be interpreted to him in a language which he understands.

13. What clearly emerges from the above constitutional and statutory provisions is that courts have a duty to ensure that an accused person is able to follow the proceedings from the beginning to the end in a language that he understands. That is why the facility of free interpretation is given to an accused person as of right to ensure that he understands the proceedings even if he is not proficient in the language used by the court and other participants in the trial. It is therefore crucial that courts do note on record the language used by the court, the witnesses and the language of interpretation if any.

14. In this appeal, the appellant has not complained that he did not understand the charge preferred against him or that he was unable to follow the proceedings as they were conducted in a language he did not understand. His only grievance is that the language used by the trial court at the time he took his plea was not indicated in the court record.

15. The Court of Appeal in a number of authorities has held that the mere failure or omission to indicate on record the language used in the trial or the interpretation thereof cannot vitiate a conviction if the record demonstrates that an accused person fully understood the charges and was able to follow and participate in the proceedings. See: George Mbugua Thiongo v Republic [2013] eKLR; Mwendwa Kilonzo & Another v Republic [2013] eKLR.

16. In this case, it is clear from the trial court’s record that the appellant understood the charges and the evidence adduced by the eight prosecution witnesses who testified in three different languages, that is, Nandi, English and Swahili. There is no doubt that he was able to follow all the proceedings given the manner in which he participated in the trial including the way he cross-examined the witnesses. He was even able to express his dissatisfaction with the answers given by PW6 under cross-examination. It is important to note that PW6 gave her evidence in the English language. After the prosecution closed its case, the appellant proceeded to give his defence which was recorded by the court.The record does not show that he complained to the trial court at any stage in the course of the trial that he had any difficulty with the language used. And in all the court sessions, a court clerk was in attendance whose role was to inter alia provide interpretation if required.

17. I must also add that when prosecuting his appeal, the appellant gave brief oral submissions in the Swahili language while his submissions were written in English. Given the foregoing, I have no doubt in my mind that even though the language used in the trial was not indicated on the court record, the appellant fully understood whatever language that was used and he was not prejudiced in any way. That ground must therefore fail.

18. With regard to legal representation, I agree with the appellant’s submissions that under article 50(g) of the Constitution, an accused person has the right to choose and be represented by an advocate and to be informed of that right promptly.

19. The record shows that at the time the appellant was arraigned in court for plea, he had already picked an advocate of his choice one Mr. Sang. He was therefore already aware of his right to legal representation and there was no need for the trial court to inform him of that right.

20. From the record, it would appear that Mr Sang attended the court only twice at the commencement of the trial before Hon A Lorot (SRM). That was on plea day and the first mention date on July 14, 2010. He did not attend the court on all other subsequent dates. I think it is important to note at this juncture that in criminal proceedings, there is no set procedure like the one found in the Civil Procedure Rules for advocates to come on record or exit the same. And though it would have been desirable for the trial court to enquire from the appellant what had become of his advocate, it is the appellant who ought to have volunteered information to the court regarding whether he still had Mr. Sang as his counsel and whether he needed to be given time to have him attend the court to represent him in the trial. He did not apply for adjournment on grounds related to unavailability of his advocate or on grounds that he wished to engage a different advocate and his application was rejected. I therefore find no basis upon which I can hold that he was denied his constitutional right to legal representation. Nothing therefore turns on that ground of appeal.

21. Another complaint made by the appellant is that he was wrongly convicted as the prosecution failed to prove penetration beyond reasonable doubt. This is the only aspect of the prosecution case concerning the essential elements of the offence of defilement that was challenged by the appellant. The appellant did not challenge the age of the victim said to have been 7 years and her claim that he is the one who had sexually assaulted her on the material day.

22. In order to address that complaint, it is important to revisit the evidence adduced by the prosecution on the subject of penetration.After a brief voire dire examination, the complainant who testified as PW1 narrated how on July 9, 2010, she met with the appellant at 4 pm as she was on her way home from school. She knew the appellant very well previously including his name. It was raining and the appellant took her to his hut purportedly to shield her from the falling rain. Once in his hut, he removed her clothes, his own clothes, laid her on a bed and defiled her.

23. PW1 further recalled that after the appellant was through with her, she dressed up and went home. She reported to her mother (PW3) later that evening what had happened to her and on checking her private parts, PW3 found some discharge which she suspected was spermatozoa. At around 11 p.m the same evening, she took her to PW4 her neighbour and relative who on checking confirmed that there was wetness in her genitalia. As PW1 had disclosed the name of her assailant who was known to them being their neighbour, PW3 and PW4 caused his arrest.

24. On the following day, PW1 was examined by a clinical officer at Kapsabet Hospital. He found that her hymen had raptured and vulva was red and inflamed. There was a whitish discharge on her vagina. The injuries were one day old. These are the findings that were recorded in the P3 form which was produced as Exhibit 4 on behalf of the clinical officer who had examined PW1 under section 33(b) of the Evidence Act.

25. In his defence, the appellant gave an unsworn statement and did not call any witness. Though he did not expressly deny the allegations made against him by the complainant, he claimed that on July 9, 2010,he left his home at 4 pm to visit a friend. He went back at 6 pm and later that evening he was arrested by members of the public for undisclosed reasons. He was taken to Chepterwai Hospital for examination after which he was charged with the offences subject of the trial.

26. In convicting the appellant, the learned trial magistrate dismissed his defence as a mere denial and accepted the evidence adduced by the prosecution witnesses particularly the evidence of the complainant . It is significant to note that in sexual offences involving minors as victims, there is no legal requirement for corroboration. In such offences, the trial court is entitled to convict an accused person on the basis of the complainant’s evidence alone if it was satisfied that she was a truthful witness and gave reasons on record for that finding.

27. In this case, the trial magistrate was convinced that PW1 was a truthful witness since her evidence was straight forward and consistent. Even though she did not have to look for corroboration, the learned trial magistrate found that PW1’s evidence was corroborated by the evidence of PW3 and PW4 and the medical evidence in the P3 form.

28. On my re-appraisal of the evidence, I find no reason to fault the findings of the trial court on the credibility of PW1 and generally, her evaluation of the evidence on record. The medical evidence in the P3 form proved without doubt that PW1 was indeed defiled as she claimed.

29. Regarding whether the appellant was sufficiently identified as the culprit, it would be remiss of me not to not consider this issue though it was not challenged on appeal because without resolving it, it would be impossible to make a finding whether or not the appellant was correctly convicted. I would like to start by observing that from the evidence, it is clear that the complainant and the accused person were not strangers. There is undisputed evidence that they were neighbours. The offence was committed at around 4 pm meaning that it was in broad daylight. PW1 had walked and talked with the appellant for a short while before the offence was committed.

30. Given the above evidence, the complainant’s recognition of the appellant as her assailant was in my view free from the possibility of error. I am therefore in agreement with the learned trial magistrate that the prosecution had proved the charge of defilement against the appellant beyond any reasonable doubt. In the premises, I am satisfied that the appellant was properly convicted. His conviction is accordingly upheld.

31. On sentence, the appellant submitted that he was a minor aged below 14 years at the time of commission of the offence; that he should not have been subjected to the sentence prescribed for adults under the Sexual Offences Act. A scrutiny of the record reveals that the age of the appellant was ascertained during the trial through an age assessment report dated July 14, 2010 which was filed in court. The report confirms that as of July 14, 2010, the appellant was 14 years old. According to the charge sheet, the offence was committed on July 9, 2010 about three days earlier. There is therefore no doubt that at the time the appellant committed the offence, he was a child within the meaning of section 2 of the Children’s Act which defines a child as any person below the age of 18 years.

32. It is also evident from the record that though the appellant’s trial commenced on July 20, 2011, it was concluded on December 1, 2014 when the appellant was convicted and sentenced. This was over three years since the trial began. The appellant had by then attained the age of majority. He was a few months past his eighteenth birthday.

33. The question that this court must now grapple with is whether an offender who finds himself in the situation that faced the appellant should have been sentenced as a child or as an adult. My take is that the appellant ought to have been sentenced as a child and not as an adult. I say so because the appellant committed the offence as a child not as an adult and consequently, he should have been punished as a child.

34. If he had pleaded guilty or the trial had been concluded expeditiously as envisaged in section 186 of the Children Act and rule 12 of the Child Offender Rules, he would have been sentenced as a child not as an adult. The appellant should not have been denied the protection meant to safeguard the rights of children just because he had become of age by the time his trial was concluded due to delays caused by complexities inherent in the justice system which were not of his making and were beyond his control. In my opinion, sentencing in such a case ought to be based on the age of the offender at the time the offence was committed not the age at which sentence was pronounced. Sentencing a child offender as an adult just because his trial had been unduly delayed is in my opinion highly prejudicial and amounts to a miscarriage of justice.

35. Having found that the appellant ought to have been sentenced as a child, the law that should have guided the trial court to inform its decision in sentencing the appellant is section 8(7) of the Sexual Offences Act. This provision provides that a person below the age of eighteen years who is convicted of a sexual offence under the Act should be sentenced in accordance with the Borstal Institutions Act and the Children’s Act.

36. Section 190(1) of the Children’s Act prohibits the imposition of any term of imprisonment on children or placing them in a detention camp.Section 191 of the Children’s Act enumerates the various options open to a court when dealing with child offenders found guilty of a criminal offence.The section provides for non-custodial sentences which includes a discharge under section 35(1) of the Penal Code; placement on probation or in a probation Hostel under the Probation of Offenders Act; making a community service order; placement in a borstal institution or an Approved School depending on the age of the child; payment of a fine, compensation or costs among other options.

37. In view of the foregoing, it is my finding that the learned trial magistrate fell into error when she imposed on the appellant a custodial sentence. She failed to take into account the provisions of section 8(7) of the Sexual Offences Act which would have led her to consider the provisions of section 190 and section 191 of the Children’s Act which prescribed the lawful sentences that could be imposed on child offenders.

38. As noted earlier, the provisions prohibit the making of an order of imprisonment or detention of a child. In this case, the appellant was sentenced to life imprisonment. Given the foregoing, i am satisfied that the sentence imposed on the appellant was unlawful as it was not in accordance with the relevant law. In the circumstances, the appellant’s appeal against sentence succeeds. It is accordingly allowed. The sentence imposed by the trial court is consequently set aside.

39. Having set aside the illegal sentence passed by the trial court and considering that the appellant’s appeal on conviction has failed, this court must now determine, in the exercise its powers under section 354 of the Criminal Procedure Code, the appropriate sentence that should be substituted with the trial court’s unlawful sentence. As that sentence has to be one of the non-custodial sentences enumerated under section 191 of the Children’s Act, I hereby direct that a Probation Officer’s report be filed within the next 10 days to recommend the sentences under the aforesaid provision that would be most appropriate for the rehabilitation of the appellant.In the meantime, the appellant shall be released into the custody of the Eldoret GK remand prison till July 25, 2017 when the appeal shall be mentioned for purposes of receiving the probation officers report and for orders on sentencing.It is so ordered.

C. W. GITHUAJUDGEDATED, SIGNED AND DELIVERED AT ELDORET THIS 13TH DAY OF JULY 2017. In the presence of:-The appellantMs. Asiyo for the StateMr. Lobolia court Clerk.