[2010] KEHC 4062 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Criminal Appeal 404 of 2009

(From original conviction and sentence in Criminal Case No.1017 of 2008 of the

Chief Magistrate’s Court at Nairobi)

JON CARDON WAGNER …………………………………APPLICANT

VERSUS

REPUBLIC …………………………………………………RESPONDENT

RULING

The applicant was charged with three principal counts of defilement under section 8(1) as read with section 8(4) of the Sexual offences Act No. 3 of 2006. He also faced three alternative charges under section 11(1) of Sexual Offences Act. After full trial he was convicted on 11th September 2009 on all the three counts of defilement and sentenced to 15 years imprisonment on each count. The sentences were ordered to run concurrently hence this appeal. On 25th September 2009 he lodged an appeal being criminal appeal No. 404 of 2009 against the judgement, conviction and sentence dated 11th September 2009 by Nairobi Chief Magistrate in criminal case No. 1017 of 2008, consequently he put forward 21 grounds of appeal and as a result has lodged chamber summons dated 25th November 2009. It is the request of the applicant that he be released on bail pending the hearing and final determination of the appeal he filed against his conviction and sentence. It is the case of the applicant that his appeal raises several substantial grounds of appeal on matters of law, facts and the constitution which are weighty, profound and fundamental to the process of fair trial in order to show his appeal has overwhelming chances or probability of success. It is also alleged that the applicant did not get a fair trial as by law required. And that the judgement of the trial court was full of misdirection and errors resulting in miscarriage of justice. The appeal was argued by Mr. Pravin Bowry assisted by Mr. Mohamed Nyaoga for the applicant. It is the case of the applicant that there is in existence exceptional circumstances and that the interest of justice demands that the appellant be released on bail pending the hearing and determination of his appeal. It is also the case of the applicant that there exists overwhelming chances which mitigates that the applicant be released on bail pending the hearing and determination of his appeal. It was the submission of Mr. Pravin Bowry advocate that there are some extreme and fundamental grounds of appeal which shows beyond any doubt or argument that the grounds of appeal put forward by the applicant meets the tests of application before court. He contended the fact that the trial court decided to amend the charge sheet in her judgement on the judgement day unilaterally and without the knowledge of the applicant is a fundamental issue which greatly prejudiced the rights and interests of the applicant. It is contended that the trial court amended the charge sheet after confirming that there was a defect and without the consent and knowledge of the applicant. It is alleged that the trial court acknowledged the existence of grave defect and proceeded to amend the charge sheet and the same is fatal to the conviction ultimately entered by the trial court. It is the submission of Mr. Bowry that the amendment undertaken by the trial court at the time of writing her judgement, is so profound to the trial, it is unfair, unjust and flawed to the whole conviction against the applicant. He stated that the amendment violated section 214(1) of the CPC since the accused person was not allowed or given an opportunity to plea or say something on the new amended charges. By amending the three charges at the stage of judgement was manifestly wrong and vitiated the whole trial. In support of that contention he referred me to the case of Yongo v Republic Criminal Appeal No. 1 of 1993where it was held by the Court of Appeal;

“1. A charge is defective under section 214(1) of the Criminal Procedure Code (cap 75 where:

a)It does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses;

or

b)It does not, for such reasons, accord with the evidence given at the trial; or

c)It gives a misdescription of the alleged offence in the particulars.

2. Where the charge is defective either by misdescription or at variance with the evidence at the trial, the court has the power to order an amendment or alteration of the charge provided:

a) the court shall call upon the accused to plead to the altered charge, and

b) the court shall permit the accused, if he so requests, to re-examine and recall witnesses.

It is mandatory requirement that the court must not only comply with the above conditions, but it shall record that it has so complied. The trial magistrate failed in not recording whether there had been compliance with the proviso to section 214 of the Criminal Procedure Code (cap 75).

3. The appellant should have been given the opportunity to further question the prosecution witness and it could not be said whether the failure to give him that opportunity occasioned no prejudice to him as such further questioning might have caused the trial magistrate to form a different view of the witness’ evidence.”

As stated earlier the applicant was charged with three counts of defilement under section 8(1) as read with section 8(4) of the Sexual offences Act No.3 of 2006. According to the particulars of count 1, the 1st complainant is said to be aged 14 years whereas the 2nd and 3rd complainants in counts 2 and 3 are both said to be 13 years of age. Section 8(4) reads as follows:

“Any person who commits and offence of defilement with a child between the age of 16 and 18, is liable upon conviction to imprisonment for a term of not less than 15 years.”

The contention of the applicant is that he was charged under section 8(1) as read with section 8(4) of Sexual Offences Act but convicted under section 8(1) as read with section 8(3) and not section 8(4). The objection as to the nature of the charges that were preferred against the applicant was raised by the defence at the time they made their defence for no case to answer. It was the contention of the defence that a conviction under section 8(1) cannot stand as the corresponding penalty is erroneous. It is the case of the applicant that he was charged under section 8(1) as read with section 8(4) but he was convicted under a different section namely section 8(3). To understand the different scenarios that exist and the different sections it is important to reproduce section 8(1), 8(3) and 8(4).

Section 8(1) provides;

“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

Section 8(3);

“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.

Section 8(4);

A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”

It is also important to recite section 214(1) of the CPC which provides;

214 (1) Where, at any stage of a trial before the close of the case for the prosecution it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge necessary to meet the circumstances of the case:

Provided that-

(i)Where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;

(ii)Where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and in the last mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.

In amending the charge, the trial court was alive to the fact that there was a problem as to the ages of the three complainants. She was also aware that the particulars of the charge and the evidence tendered were at variance. In amending the charges the trial court held;

“On the charges against the 1st accused person, under section 8(1) as read with section 8(4) of the Sexual Offences Act No.3 of 2006 it is true that the age of the complainant is given as 13 and 14 years. It is also true that there was no age assessment report, however, there is no dispute as to the age of the complainant and in any case the evidence of Dr. Muhombe (PW1) clearly indicate the age of the complainants and if the complainant who were aged 13 and 14 at the time of the offence then the right section would be section 8(1) as read with section 8(3) and not section 8(4).”

In amending the charges the trial court was answering an issue that was raised by the defence that the charges that were preferred against the applicant were defective and bad in law. It was the contention of the defence that the accused person could not be charged under two sections of one Act of parliament and if the same is done the defence is prejudiced. InCosma case 1955 22 EACA it was held;

“It is better in an appropriate cases to specify in the statement of offence, not in definition section of an ordinance but the punishment section thereof.”

In the instant case the applicant was initially charged under section 8(1) which provides that any person who causes penetration with a child is guilty of an offence of defilement. He was also charged under section 8(4) which provides that any person who commits an offence of defilement with a child between the age of 16 and 18 is liable upon conviction to imprisonment for a term not less than 15 years. However, the trial court having heard the evidence of prosecution witnesses that the complainants were aged 13 and 14 amended the charges to read section 8 (1) and 8(3) of Sexual Offences Act. Upon conviction he was sentenced to serve 15 years in jail in each count and the sentences were ordered to run concurrently. The question is what is the sentence under section 8(3) of the Sexual Offences Act. The sentence provided is imprisonment for a term of not less than 20 years while the trial court sentenced the applicant to 15 years imprisonment in each count. It is also important to understand the grievances as put forward by the defence since it is not clear whether the appellant was convicted under section 8(1) as read with section 8(4) of the Sexual Offences Act or under section 8(3) of the same Act. In the last paragraph of her judgement the honourable magistrate had this to say;

“From the evidence before me from PW1 Dr. Muhombe of Nairobi Women Hospital and the P3 forms produced by Dr. Kamau I find that there was penetration and accused person having been positively identified by the complainant by recognition I find him guilty of the offence as charged in the main charge in count 1, 2 and 3 and convict him accordingly.”

As stated earlier, the trial court amended the three main principal counts against the applicant but nevertheless proceeded to convict him as charged. An issue that arises is why the trial court amended the charges but convicted the applicant as charged. The provisions under the Sexual offences Act is very clear and categorical as to the sentence to be imposed for a particular offence. For example under section 8(2) any person who commits an offence of defilement aged 11 or less shall upon conviction be sentenced to imprisonment for life. The sentence provided under section 8(3) is in respect of a child between the age of 12 and 15 and the sentence is for a term not less than 20 years. Again under section 8(4) the age limit of the victim is 16 and 18 and the sentence provided is for a term not less than 15 years. In my understanding section 8 and the relevant subsections provides for different sentences for persons convicted to have defiled victims of different ages. And in a case where the evidence discloses that the age of the victim is materially different from the particulars disclosed in the charge, the court is empowered to do an amendment without prejudicing the rights of the accused person.

The matter which to my mind is relevant in this case is that where the power to be exercised by a judicial officer involves a charge against a person who is eventually convicted the person can be said to be prejudiced if he had no knowledge or reasonable expectation that he would be convicted under a different section than the one in which he gave his defence. One may argue a person who was exposed to a situation where he is convicted for a charge in which he did not give his defence may have lost a legitimate expectation or right. The point I am making is that it is a common principle in every case which has in itself the character of judicial proceedings that the party against whom a judgement is to operate should have an opportunity of being heard. InCampel v Child 1832 2C & J 558 it was held;

“ here is a new jurisdiction given, a new authority given: a power is given to the Bishop to pronounce a judgement and according to every principle of law and equity, such judgement could not be pronounced and if pronounced could not for a moment be sustained unless the party in the first instance had the opportunity of being heard in his defence which in this case had not and not only no charge is made against him which he had an opportunity of meeting, but he has not been summoned that he might meet any charge.”

In R v University of Cambridge 1723 93 ER 698 the Court of Kings bench held;

“Even God himself did not pass sentence upon Adam before he was called upon to make his defence.”

It is the case of the applicant that the charges that were preferred against him were substantially amended without his notice and knowledge by the trial court, therefore he lost a legitimate right or expectation by reason of the trial court unilaterally and bilaterally amending the charges that were preferred against him. The law is that if the order in question adversely affects the rights of an individual, the party is entitled to a notice and the notice must be clear, specific and unambiguous. In my understanding the object of a notice is to give opportunity to the individual concerned to present his case of defence and if the party is aware or made aware of the charges or allegations, then he cannot be said to be prejudiced simply because it was not brought to his attention. It is important to show that the person had no knowledge that he would be convicted for charges different than the ones in which he gave his defence and as a result suffered prejudice. I know that when a person has suffered prejudice is a question of fact and law and depends on circumstances of the case. I also appreciate that notice must be given to an individual who would be affected by the outcome of a decision and that he must be accorded a reasonable opportunity before he or she is convicted for charges in which he did not give his defence.

The evidence or the charges subject of this determination may be said to have prejudiced the applicant but until a proper and conclusive investigation is carried out by way of determination of the appeal, it is difficult to assign a particular definition or conclusion to the assertions raised by the applicant. A complicated and somewhat difficult question is what is the effect or a breach or contravention of section 214 (1) of the CPC and the rights of the applicant to be entitled to a fair hearing in the determination of his appeal. In my humble view, the principle of natural justice goes to the root of this matter and an issue that is apparent from the reading the proceedings conducted by the trial court, is whether the decision rendered by the trial court is void by reason of the court’s failure to comply with the relevant provisions of the law. That is a matter which needs proper investigations and determination in order to arrive at a conclusion as to whether the trial court formed unbalanced view of the evidence and thereafter reached a decision which was unsupported by the evidence tendered by the prosecution. It suffices to say that one of the most important element of a charge of defilement is that the accused person must have notice or know the ages of the victims and the prosecution must lead evidence in that direction. It is so because of sentencing and more importantly for the accused to make an informed and knowledgeable defence in his case. There can be no other roots or ways in the way charges are framed, preferred, prosecuted and conviction entered under the Sexual Offences Act No.3 of 2006. It is so because the court has a duty to decide whether from the facts and circumstances of a particular case under consideration, the accused person committed defilement under a particular section. The age of the complainants and the sentences provided is different in each particular subsection of section 8 of Act No. 3 of 2006. In my humble view an accused person can only be asked and expected to make a defence for a charge in which the prosecution led evidence against him. In this case the amendment was not sought by the prosecution and the trial court took upon herself to amend the charges without the knowledge of the prosecution and the defence. It is the case of the applicant that amendment undertaken is a prima facie case which shows there exists sufficient grounds which can result in success of his appeal. It is also the case of the applicant that the amendment relates to the age of complainants.

The trial court in amending the charges also mentioned a critical issue that there was no age assessment report and that it is the case of the applicant that in the absence of a medical report or a birth certificate showing the ages of the complainants is indicative that the conviction is questionable and susceptible to be overturned by this court. It is also the case of defence that the evidence tendered by the prosecution to support the principal charges of defilement against the three complainants and the amendments by the trial court, raises massive doubts on the case of the prosecution.

Another issue that was raised by the applicant is that the testimony of the prosecution witnesses are marred with contradictions and inconsistencies rendering the evidence unworthy of trust and thus not credible. The defence attacked the evidence of PW1 Dr. Muhombe by stating that he examined N K the 3rd complainant on 12th June 2008 but she went to make a report on 24th June 2008. It is alleged the delay of 12 days is not explained. Dr. Muhombe further states that the 3rd complainant NK told him that she was sexually assaulted in April 2008 in Loresho area. The charge sheet in respect of NK is that she was sexually assaulted on diverse dates between 1st November 2007 and 31st November 2007 in Lavington area within Nairobi. The question that begs for answers is who is telling the truth between the 3rd complainant and Dr. Muhombe. That question can only be answered at the hearing of the appeal since a determination at this stage would definitely prejudice the case of the prosecution.

Another contradiction that was raised by the defence is the evidence of 1st complainant G.W that after she was defiled she walked 14 kilometres from the scene of crime but Dr. Muhombe alleged that it was not possible for a 14 years old who has been defiled to immediately cover that kind of distance. It is also the evidence of the 1st complainant that she left the house of accused at about 10 a.m. but at the same time she alleges she fell unconscious at the same time.

The 2nd complainant L.W’s evidence is that she met a white man in a sitting room who instantly applied a substance in her face and she immediately fell unconscious. She also said that when she was taken to the house of the applicant, she wanted to escape but she was held by a watchman. She did not tell police that the two women who took her to the house of the applicant were given money but in court she alleged the two women shared money outside the house after the incident. The law is that if a particular witness had formerly said or written the contrary of that which she testified unless a satisfactory reason is given, then her evidence should not have much weight except to show that she is not a credible witness. In the case ofNdungu Kimanyi v Republic 1979 KLR 282 the Court of Appeal held;

“the witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straight forward person or raise a suspicion about his trustworthiness or do or say something which indicates that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence.

I am not in any way saying that the evidence tendered by the three complainants is doubtful or creates an impression that the same is unreliable but prima facie there is a case to investigate the veracity and weight of the evidence tendered by the three complainants in respect of the alleged defilement.

In conclusion in a case of defilement it is essential to prove age of complainant either by way of medical evidence or through other evidence since the Sexual Offences Act has different categories of offences and sentences for different ages. It is the case of the applicant that no doctor was called to confirm the ages of the complainants to comply with the relevant provisions of the law. It is also alleged that the birth certificates of the three complainants were not adduced before court. I may add to say so that proof of age of the complainant cannot be established through age assessment by a medical doctor or production of a birth certificate only. In my mind the age of a child can be established through other procedures or modes however, in order to establish or determine the conflict between the allegations by the defence and the evidence by the prosecution can only be done by way of hearing the appeal conclusively. The point is that the issue of the age of the complainants is a material factor in the conviction entered by the trial court and whether the charges against the appellant were proved beyond reasonable doubt. That is an arguable point in favour of the applicant that he was convicted in a matter where the age of the complainants was not properly established before court. The defence also contested the P3 form and that there was allegation that it was forged by some of the prosecution witnesses. The evidence of PW22 and PW23 appear to be in that direction, however, that issue can also be determined at the hearing of appeal.

It is also the case of the applicant that having been charged under section 8(1) as read with section 8(4) he should have been convicted under that section alone since the prosecution tendered evidence on strength of the charges preferred. The defence mounted its defence on the basis of the charges and evidence that were with his knowledge at the time the prosecution case started to the time it ended. The trial court amended or altered section 8(4) to read section 8(3) but proceeded to convict the applicant as charged. That is a matter deep in the whole spectrum of the trial and this court will have to decide whether it was within the jurisdiction of the trial court to act in that manner. This court will also have to decide the rationale of sentencing the applicant to 15 years when the charge as amended by the trial court provided for 20 years imprisonment.

One may say if the trial court was right in amending the charges, the applicant would have been sentenced to 20 years. In that regard this court has to investigate, re-evaluate and determine what was the logic behind the determination or decision of the trial court to amend the charges to read as section 8(1) as read with section 8(3) of the Sexual Offences Act. A question that needs my determination is whether the applicant suffered a miscarriage of justice by having been convicted under a wrong section and whether that is incurable under the relevant provisions of the law. That is what Mr. Bowry called an aspect of the case which is so obvious and apparent to result in allowing the application under my determination. I sincerely think the powerful submission by Mr. Bowry advocate along that line has merit. It is the contention of Mr. Bowry that in a judgement that concerns the life and liberty of a citizen, it is incumbent upon the person rendering the said judgement to take the issues at stake seriously and diligently. He contended that the trial court dealt with the matter indifferently and casually. That contention can only be considered at the stage of determining the appeal wholesomely.

In my mind therefore the applicant has sufficiently demonstrated that his case has a probability of success and there are overwhelming issues that would require this court to determine at the hearing of the appeal. To my mind therefore, this is a proper test to be applied in an application for bail pending appeal. As is required by law, I should not pre-empt the main appeal or usurp the function of the appellate court by analyzing and re-evaluating the evidence in order to determine whether the applicant’s appeal has merit. It suffices to say, I have restrained myself, from addressing the pertinent issues and evidence but nevertheless the issues that were raised by the applicant are substantial and so fundamental to result in allowing the application. For the foregoing reasons, I hold that this is a fit and proper case for the grant of bail pending the hearing and determination of the applicant’s appeal. I therefore think that the learned State Counsel was right to have conceded to this application.

In the circumstances, I do admit the applicant to bail pending the hearing and determination of his appeal No.404 of 2009 on the following terms:

(1)The applicant shall deposit a sum of Kshs.1 million in court and shall in addition deposit his passport to the Deputy Registrar of this Court.

(2)The applicant shall not leave the jurisdiction of this court till the determination of his appeal.

(3)All exit points shall be alerted and the names of the applicant shall be supplied to the Immigration Department that he shall not depart from the jurisdiction of this court without permission and/or determination of his appeal.

(4)The applicant’s appeal be listed on priority basis.

(5)Mention on 18th February 2010 for further orders and direction.

Orders accordingly.

Dated, signed and delivered at Nairobi this 18th day of January 2010.

M. WARSAME

JUDGE