[2017] KEHC 2905 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

CRIMINAL APPEAL NO. 8B OF 2017

JOHN OMONDI AGUTA.......................................APPELLANT

VERSUS

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

(Appeal against Judgment, Conviction and Sentence imposedby

Hon. B.Kasavuli(SRM) inWinamCriminal Case Number 529 of 2014

deliveredon 28th January, 2016

JUDGMENT

The trial

The Appellant here in John Omondi Agutahas filed this appeal agains this conviction and sentence on a charge of is charged of defilement of a girl contrary to section 8(1) as read with section 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that

On 12. 4.14 at [Particulars withheld] Village in Kabar location within Kisumu County intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of M A a girl aged 15 years

The prosecution’s case

The prosecution called 8 witnesses in support of the charge. PW1 the complainant testified on 8. 9.14 and stated that she was born on 1. 10. 99 and was 14 years old and that she had dropped out of class 7 in April 2014. She told court that the appellant was her boyfriend and that they had engaged in sexual intercourse on the night of 12. 4.14 among othernumerous times. It was her evidence that their escapades would have gone unnoticed had appellant’s brother not reported the matter to her mother as a result of which the matter was thereafter reported to the police and appellant was arrested and charged.

PW2 T A O, complainant’s mother was on 12. 4.14, informed by one Peter Juma, a village elder that appellant had defiled the complainant who was 14 years at the time.

PW3 Peter Juma, a village elder stated that on 13. 4.14, he arrested appellant and handed him over to the police after another village elder one George Otieno informed him that appellant had defiled the complainant.

PW4 Grace Aloko Otieno and PW5 Brenda Akinyi said that they were informed that appellant had been arrested for defiling the complainant.

PW6 George Otieno Agonda, a village elder testified that he bumped onto the complainant and appellant on 13. 4.14 at about 6 am and suspected that appellant was escorting the complainant home. That he reported the matter PW3 and together they arrested complainant and appellant and handed them over to the police.

PW7 Sgt Sophie Wanjalaon 13. 4.14 received appellant and complainant from PW3 and PW6 who alleged that appellant had defiled complainant. That after investigations; she charged appellant with the offence herein. She produced complainant’s certificate of birth as PEXH. 2.

PW8 James Bwore, a clinical officer examined complainant on 14. 4.14 and found no bruises or lacerations in and/or on the genitalia but the hymen broken as a result of which he concluded that the results were consistent the victim’s history that she had been defiled several times. He produced complainant’s P3 form as PEXH. 1. He produced appellant’s P3 form PEXH. 2 which shows that he had been assaulted and had named his brother as one of the assailants.

The Defence Case

When put on his defence, the appellant gave unsworn testimony in which he denied the offence. He said his brother framed him up after he prevented him from selling the family land. The learned trial magistrate considered the evidence and finding the charge proved against the appellant sentenced him to 15 years imprisonment.

The Appeal

Being dissatisfied with the conviction and sentence, the appellant lodged the instant appeal. In his supplementary grounds of appeal, the appellant set out 5 grounds of appeal to wit: - THAT

1. The trial court failed to observe the provisions of Section 124 of the Evidence Act

2. The trial court failed to observe the provisions of Section 19 of the Oaths and Statutory Declarations Act

3. The medical examination report failed to support the alleged offence

4. The trial court failed to observe the provisions of Section 77 of the Evidence Act hence admitting an alleged age assessment report erroneously

5. The trial court failed to observe the provisions of Section 200 of the Criminal Procedure Code

During the hearing of the appeal on 11. 7.17, the appellant relied on the supplementary grounds of appealand 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

This being acourt of first appeal, 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 IssacNg'ang’a Alias Peter Ng'ang'aKahiga 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 ofOkenov 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.

THE ISSUES FOR DETERMINATION BEFORE THE COURT

In dealing with this appeal, I will separately consider the grounds of appeal as follows:-

a.Did the trial court fail to observe the provisions ofSection 19 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya?

Section 19 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya provides:

(1) Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance withsection 233of the Criminal Procedure Code(Cap. 75), shall be deemed to be a deposition within the meaning of that section.

Under the above cited section, the trial court must be severally satisfied about two main ingredients before proceeding to take the evidence of the child namely;

1) Whether the child understands the nature of an oath; or

2) If the child, in the opinion of the court does not understand the nature of an oath, whether the victim is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.

If the child does not understand the nature of the oath, the trial court should determine if he/she possesses sufficient intelligence to justify the reception of the evidence, and he/she understands the duty of telling the truth. It is only after the said inquiry has been conducted that the testimony of the child is received in evidence either under oath or as unsworn statement. But in both instances, the child is liable to cross-examination.(See BGM HCCRA NO 141 OF 2011 [2013] eKLR).

In the instant case, the complainant was 14 years and therefore not a child of tender years. The trial court was therefore not obliged to conduct voire dire of the complainant, to determine if she was possessed of sufficient intelligence to understand the duty of speaking the truth.

b.Did the trial court fail to observe the provisions ofSection 19 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya?

Section 124of the Evidence Act Cap 80 Laws of Kenya which provides for conviction on the evidence of a single witness in the following terms:

“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 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.”

Courts have emphasized that non-compliance with the requirements of section 19 of Cap 15 of the Laws of Kenya will result into quashing of a conviction unless there is other evidence before the court which is sufficient on its own to sustain a conviction. (See Nyasani S/O Bichana V Republic [1958] EA 190).

A perusal of the proceedings before the trial learned magistrate shows that the court considered the evidence of PW6 George Otieno Agonda, a village elder who testified that he had bumped onto the complainant and appellant on 13. 4.14 at about 6 am and found that it corroborated the complainant’s evidence that she had spent the night in appellant’s house. I find that the trial magistrate correctly considered the law on corroboration and I find no fault that would invite this court’s interference.

c.Did the medical examination report support the alleged offence?

Complainant told court that she had engaged in sexual intercourse with the appellant several times. The clinical officer examined complainant on two days after the alleged offence was committed and found no bruises or lacerations in and/or on the genitalia but the hymen broken as a result of which he concluded that the results were consistent the victim’s history that she had been severally defiled.

From the evidence on record; I have no doubt that the evidence in the complainant’s P3 form as PEXH. 1 supported her claim that she had been defiled on various occasions.

d. Did the trial court fail to observe the provisions of Section 77 of the Evidence Act hence admitting an alleged age assessment report erroneously?

Section 77 of the Evidence Act state as follows:-

(1) In criminal proceedings any document purporting to be a report under the handwriting of a Government Analyst, Medical Practitioner or of any Ballistics expert, Document Examiner or Geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.

2. The court may presume the signature of any such document is genuine and that the person signing it or the office and qualifications which he processed to hold at the time when he signed it.

3. When any report is so used the court may, if it thinks fit, summon the analyst, Ballistics expert, Document Examiner, Medical Practitioner, or Geologist, as the case maybe, and examine him as to the subject matter there of”.

Section 77 of the Evidence Act does not deal with the issue as to who can produce such a document. The section allows the court to presume the genuineness of the document. PEXH. 2 is a certificate of birth and not an age assessment report. It shows that complainant was born on 1. 10. 99. Its genuineness was confirmed by the evidence of the complainant and her mother who testified that complainant was 14 years when she testified in September 2014.

e.Did the trial court fail to observe the provisions of Section 200 of the Criminal Procedure Code?

The court record shows that this case was heard by Hon. Sala (RM) upto 14. 7.15 when it was take over by Hon. Kasavuli (RM). The record of that day reads as follows:

Court: Section 200 CPC complied with.

Accused: I just want to proceed from where it has reached. That is all.

Court: Case to proceed from where it has reached

Section 200 (4) of the Criminal Procedure Court provides that:-

"Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial"

I am fully aware that Section 200 of the Criminal ProcedureCode should be used very sparingly indeed. The Court of Appeal in Ndegwa vs. Republic 1985 KLR 534 at 537 observed as follows: -

“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where the exigencies of the circumstances, not only are likely but will defeat the end of justice, if a succeeding magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial.”

No reason was given why Mr. Salaceased exercising jurisdiction. In NdegwaVs. Republic (Supra); Madan, Kneller and NyarangiJJA held:-

"It could also be argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanour and credibility of witnesses. It has been and will be so in other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully "observed" the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanour of all the witnesses in the case. A fatal vacuum in this case in our opinion. .......................for these reasons we have stated, in our view the trial was unsatisfactory"

Justice Dulu in the case of Anthony MuseeMatingevs R 2012 EKLR stated as follows:-

"The legal requirement which has to be complied with while taking over proceedings from a previous magistrate by a succeeding magistrate is contained in Section 200 of the Criminal Procedure Code. The relevant part of which provides:-

200 (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 summoned and reheard and the succeeding magistrate shall inform the accused person of that right.

The learned judge proceeded to say as follows:-

“The above provisions of law are couched in mandatory terms....................... In our present case, there is no record that the appellant was informed of his right to recall witnesses. Nor is there a record that he elected not to recall witnesses. ......................The omission by the trial court was fatal to the proceedings. Therefore, the appeal has to succeed on this technicality.”

I associate myself with the cases cited hereinabove and find that the trail magistrate fell into error when he failed to inform the appellant of his right to recall witnesses. The omission by the trial court is fatal to the proceedings and the appeal has to succeed on this technicality.

I have considered whether this would be an appropriate case for re-trial. I have considered the principles for re-trial enunciated in BenardLolimoEkimat 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 the society, 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. Appellant 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 first arraigned in court on 15. 4.14 and remained in custody for 21 months before he was convicted on 28. 1.16. He has already served a prison term of 1 year 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 THIS5thDAY OFOctober2017

T. W. CHERERE

JUDGE

Read in open court in the presence of-

Court Assistant - Felix

Appellant - Present in Person

For the State - Ms Wafula