[2017] KEHC 3299 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL APPEAL NO. 15 OF 2017

JOHN NJIRU NJUE..............................................APPELLANT

VERSUS

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

JUDGMENT

The Appellant JOHN NJIRU NJUEhas appealed against the conviction and sentence passed against him by the learned magistrate V.O Nyakundi in Criminal Case No. 946/2015 Republic vs John Njiru Njue.

In the said case, the Appellant was charged with two counts of Defilement and two alternative charges of committing an indecent act.

The particulars of count I are that on the 23rd day of June, 2015 at [particulars withheld] sub location, Nembure division within Embu County, intentionally and unlawfully caused his genital organ penis to penetrate the genital organ of V K a girl aged 7 years.

In the alternative charge to Count I, the particulars are that on the 23rd day of June 2015, at [particulars withheld] sub location, Nembure division within Embu County, intentionally using his penis touched the vagina of V K a girl aged 7 years.

The particulars of Count II are that on the 23rd day of June, 2015 at [particulars withheld] sub location, Nembure division within Embu county intentionally and unlawfully caused his genital organ penis to penetrate the genital organ of Caroline a girl aged 5 years.

The particulars of alternative charge to Count II are that on the 23rd day of June, 2015 at [particulars withheld] sub location, Nembure division within Embu County intentionally using his penis touched the vagina of C W a girl aged 5 years.

The Appellant was convicted in both counts and sentenced to serve 40 years imprisonment on each count and both sentences are to run consecutively.

Being dissatisfied with both the conviction and the sentence, the Appellant appealed to this court and has listed 16 grounds of Appeal in his petition of Appeal dated the 28th February, 2017.

In his submissions, counsel for the Appellant argued that, the evidence adduced by the prosecution did not meet the threshold required to sustain a conviction and that the submissions that he filed in the lower court were not considered.

That there was a gross violation of the Appellant’s rights during the hearing of the matter in that on the 5/10/2015 the case proceeded in the absence of his Advocate when the prosecution called three witnesses and his application to have the witnesses recalled for cross examination was declined.

He contended that his rights under Articles 25 and 50 of the Constitution were violated. On the merits of the Appeal he stated that the evidence by the prosecution witnesses was contradictory and pointed out that in the evidence of PW5, in cross-examination, his evidence was that the condition of the complainants was not consistent with sexual assault generally and even the doctor quoted as much. He also referred to the evidence of PW6 who stated that he did not see the evidence of sexual assault on the complainants.

It was also contended that the trial court admitted into evidence a document that had been tampered with, that is, the treatment record and the maker had failed to counter-sign after making the alterations. He also averred that the court did consider the defence by the Appellant.

On the part of the Respondent, it was submitted that the prosecution’s case was proved beyond reasonable doubt and that the particulars of the offence as captured in the charge sheet are proper and they clearly disclose the offence of defilement. That the alteration of the medical records was too minor as to be of material significance for the prosecution case and that their maker was called in evidence and was cross examined on the alterations.

On the inconsistencies of the evidence adduced by the prosecution witnesses, it was conceded that PW5 and PW6 gave two different accounts but the learned magistrate chose to rely on the fashion given by PW5 who is a qualified doctor as opposed to PW6 who is only a clinical officer as the doctor is more qualified than the clinical officer. With regard to the time when PW1 received the children from PW2, who gave the time as 6 p.m. and 4 p.m respectively, it was not material to the case and the Appellant did not suffer any prejudice as he is aware of the charge that he is facing.

On the defence mounted by the Appellant, the Respondent concurred that it was not considered but submitted that the same was just an afterthought as none of the prosecution witnesses was cross examined on the status of the land at the material time. That the said defence was raised in appeal and the Respondent was not given an opportunity to interrogate it through witnesses.

On the failure by the learned magistrate to recall the witnesses, it was submitted that the Appellant had other remedies like appeal and/or revision which he could have opted for but he did not. Counsel for the Respondent however, agreed with the appellant that his rights were violated when he was forced to proceed with the case in the absence of his advocate.

This being the first Appellate court, I am under duty to re-evaluate the evidence and come up with my own conclusion considering that I did not have the benefit of seeing the witnesses when they testified.

PW1 is the mother to the complainants. She stated that on 23/6/2015 her sister PW2 had requested her to allow her two children to take care of her baby (PW2) because she was supposed to go to work. She granted the request and her sister took them at 9. 00 a.m until 6 p.m when they returned home. At 9. 00 p.m when washing the complainants She suspected something was wrong and asked them what happened to them. It is then that PW3 opened up and told her that somebody sexually assaulted them and she disclosed that it was the Appellant who did so.

PW2, the aunt to the complainants, told the court that on 23/6/2015 she had requested PW1 to allow the complainants to go to her home to help her look after her baby. She went to the farm and in the afternoon she left the baby under care of the complainants when she went back to the farm. She returned the complainants to their mother at around 4 p.m. but at around 3 a.m, PW1 called her and told her that the minors had been defiled. The two complainants told PW2 that it was the Appellant who defiled them and they pointed at him when they went to the farm the following day with PW2.

On cross examination, she stated that on 23/6/2015 when the complainants were defiled she noticed the Appellant was not in the farm that afternoon until around 5 p.m. It was the evidence of PW3 that the Appellant lured her and her sister PW4 to a maize farm and while there, he tied a cloth around their mouth to prevent them from screaming, he tied their hands with ropes, undressed them and did something bad on them. He removed his clothes, lay on her and warned them against telling anybody what he had done.

PW4 the other complainant, told the court how the Appellant lured them into a maize plantation, tied her to a guava tree and did to them “tabia mbaya”. She stated that the Appellant removed his urinating thing and put it in her thing for urinating and that when the Appellant lay on her, he had tied her using a cloth at the mouth. They told their mother (PW1) what had happened.

PW 4 is the doctor who examined the complainants and filled the P3 and PRC forms. He first examined V K and on examination, there were no injuries on the head, neck, throat, abdomen and upper limbs. However, there were lacerations on the right inner thigh. On the outer genitalia, there were bruises and other lacerations, the vagina was reddened and there was foul smelling discharge, hymen was reddened and had been perforated. On the vaginal swab, there was no spermatozoa but there was pus cells and bacteria.

She then examined C W. On examination, the outer genitalia was normal, No spermatozoa was found but there were pus cells. On psychological assessment, the appearance was appropriate for her age, she had a good memory and good judgment. Intelligence was average. The clothes were blood stained.

PW6 is the clinical officer who examined the complainants. On examining PW3 she had wet discharge on the genitalia, no bleeding or tears. PW4 had a lot of discharge and lacerations on the side of the thigh but no bleeding.

PW7 was the arresting officer. He arrested the Appellant on 29/6/2015.

PW8 was the investigating officer who investigated the case and charged the appellant. He produced the birth certificates for the complainants as exhibits.

DW1, the Appellant told the court that on 23/6/2015 he was called by DW2 to work for him on his farm. He got 17 labourers and together they worked from 8 a.m. until 5 p.m. He was with DW2 throughout the day and after they were through they went home. On 29/6/2015, he was arrested and taken to Itabua Police station.

DW2, told the court that the appellant has worked for him for over 8 years. On the 23/6/2015 the Appellant was in his farm together with other labourers who were harvesting beans and that from when he arrived in the farm at 10 a.m. he was within his eyesight and he did not see him leave. The labourers went for lunch and resumed in the afternoon.

DW3 told the court that on 23/6/2015 the Appellant went to his house in the morning and asked him to accompany him to DW2’s home for work. They arrived at the farm at 8 a.m where he worked with the Appellant all through and they did not separate. The Appellant only left to cook ugali for the labourers.

After that summary of evidence I proceed to consider the grounds of appeal which I will consider together.

The appellant herein was charged with the offence of defilement. The critical elements of that offence are the age of the complainant, the penetration and the identification of the assailant. The ages of the complainants were proved by the certificates of birth that were produced as exhibits before the court (Exhibit 4a and 4b). V N was born on 14/7/2008 while C W was born on 20/5/2010. The offence was alleged to have been committed on 23/6/2015 which therefore means that V was aged 7 years and C 5 years.

On penetration, the complainants identified the Appellant as the person who lured them into a farm and while in the farm he defiled them and warned them against telling anybody. It was during the day and on the following day they were able to identify him as the person who defiled them. PW4 who on cross examination stated that he is qualified to do psychological analysis, told the court that the complainants have good memory and are of average intelligence.

PW6, the clinical officer Kithimu Dispensary was the first to examine the complainants but since the dispensary did not have capacity he referred them to Embu level five hospital for further examination but on carrying out initial examination, he did not find evidence of sexual assault.

At Embu provincial General hospital, they were examined by PW4. On cross examination, it was his evidence that though the complainants had been treated for sexual assault and have been put on antibiotics the conditions he found in them, are not consistent with sexual assault generally. The hymen was perforated meaning it was broken but no spermatozoa was found in the lab results.

It is noted that the doctor (PW4) did state that on examination, the upper limbs of PW3 were normal, the outer genitalia was also normal but the vagina was reddened and hymen had laceration. He estimated the age of injury to be 24 hours and the degree of injury to be grievous harm. He also noted the probable type of weapon causing the injury was sexual assault.

On the issue of soiled clothes and the fact that they were not produced, that to me is not material as it was not the only corroborative evidence that was available to the prosecution and the non production did not affect the prosecution’s case at all. On the contention that medical documents were produced that had been altered and not counter signed, it is noted that the maker of the documents was called as a witness and he explained why he made the alterations and he was cross examined on the same and in my view the explanation that he gave was satisfactory.

In his defence, the Appellant told the court that at 1 p.m. he went to DW2’s house to assist mama Njeri cook ugali for the labourers and that after lunch they continued work until 5 p.m. Though his evidence was corroborated by DW2 and Dw3 the record shows that DW2 was in court when the Appellant gave his evidence and therefore the probative value of his evidence may not be much. His evidence was at variance with that of DW1 as he told the court that DW1 was within his eyesight all through and he did not see him leave.

On his part, DW3 stated that he never separated with the Appellant the whole day and he never left the farm. However, he contradicted himself when he stated that at 1 pm, the Appellant and Mama Njeri went to cook lunch for the labourers.

Assuming that the Appellant and DW3 told the court the truth when they stated that the Appellant left the farm at 1 p.m. to help Mama Njeri cook the lunch, none of them told the court when he went back to the shamba in the afternoon. The evidence available to the court from PW2 is that the complainants were defiled in the afternoon and the Appellant did not come back to the farm from 1 p.m. until around 5 p.m. That PW2 was working close by and she could tell he was absent.

Lastly, counsel for the Appellant raised a fundamental issue of violation of the Appellant’s rights under Article 25 and 50 of the Constitution. This is with respect to a right to fair trial. Under Article 50, right to a fair trial includes the right to choose and to be represented by an advocate and to be informed of his right promptly to adduce and challenge evidence.

In the case herein the Appellant through his defence counsel contended that there was a gross violation of the Appellant’s rights in that on 5/10/2015 the learned magistrate proceeded to take the evidence of 3 witnesses in the absence of the counsel for the Appellant.

The record shows that on the material day, the defence counsel was not present in court and the Appellant informed the court that his counsel was on the way. Though the learned magistrate noted that the complainants were required to be in school for exams but could not go to school because of the case, that was not a good reason for him to have denied the Appellant a right to be represented by his advocate. The magistrate ought to have adjourned the case to another date. The counsel for the Respondent concurs that the Appellants constitutional rights under Articles 25 and 50 were violated. I find and hold that indeed his rights were violated.

But is this a good case for retrial?

The court in the case of Mwangi Vs Republic (1983) KLR 522 discussed in details what should be considered before a court can order a retrial and that is:-

That a retrial should not be considered unless the Appellate court is of the opinion that on a proper consideration of the admissible evidence or potentially admissible evidence a conviction might result. See Braganze Vs Republic (1957) E.A 152 (CA) 469; Pyarwa Bussam Vs Republic (1960) E.A 854.

Several factors have to be considered which include:-

1. When the original trial was illegal or defective a retrial will be ordered.

2. A retrial will not be ordered if the conviction was set aside because of insufficient evidence.

3. A retrial should not be ordered to enable the prosecution to fill up the gaps in its evidence at the first trial.

4. A retrial should not be ordered when it is likely to cause an injustice to the accused person.

5. A retrial should be ordered where the interest of justice so demand.

6. Each case should be decided on its own merits.

7. Whether there is evidence to support the conviction.

Being guided by the above principles, I find that this is a right case for retrial.

In the circumstances, the Appeal partly succeeds. The conviction and the sentence are set aside. It is ordered that the Appellant be charged afresh within 14 days from the date of this judgment and the case be heard by a different magistrate.

It is so ordered

Dated, delivered and signed at Embu this 2ndday of October, 2017.

……………………..…….

L. NJUGUNA

JUDGE

In the presence of

……………………..………for the Appellant

…………………………….for the Respondent