[2022] KEHC 15630 (KLR)

JWM v Republic (Criminal Appeal 49 of 2020) [2022] KEHC 15630 (KLR) (Crim) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15630 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 49 of 2020

JM Bwonwong'a, J

November 15, 2022

Between

JWM

Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence of Hon Mutuku (SRM) delivered on January 31, 2020 in Kibera Chief Magistrates Court Sexual Offences Case No 26 of 2013 Republic v JWM)

Judgment

1. The appellant has appealed against hi conviction and sentence of 15 years imprisonment in respect of the offence of the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act, No 3 of 2006.

2. The appellant was charged with the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act, No 3 of 2006. In the alternative, he was charged with causing an indecent act contrary to section 6 (a) of the Sexual Offences Act, No 3 of 2006.

3. He pleaded not guilty on both charges and was tried and convicted on the main charge. He was sentenced to fifteen (15) years imprisonment.

4. Being dissatisfied with the decision of the trial court, he filed a petition of appeal, where he raised six (6) grounds of appeal. He also filed supplementary grounds of appeal together with his written submissions.

5. The grounds raised were that the trial court erred in law by failing to take into account that he was 17 years old at the time of the commission of the alleged offence, the trial magistrate failed to carry out a voire dire examination in respect the complainant, the trial court erred by failing to find that the offence of defilement was not proved beyond reasonable doubt, essential witnesses did not testify in court, the prosecution evidence relied on by the trial court was insufficient and uncorroborated, the trial court failed to give reasons for believing that the complainant was telling the truth contrary to the provisions of section 124 of the Evidence Act and the trial magistrate erred by failing to note that the investigating officer did not conduct any investigations and if he did, the same were shoddy.

6. As this is the appellant's first appeal, the role of this appellate court is well settled. It was held in the case of Okeno v Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oiruri Mose v R [2013] eKLR that this court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

7. RNG (name withheld) (Pw 1) testified that she is 12 years old and was heading to class 8. On August 23, 2013, she had been sent to fetch water at around 2. 00 pm. At the shop, she found the appellant who sold the water and other household items. She purchased two jerricans of water and delivered one home and came back to collect the second one. She asked the appellant for a CD to go watch and he told her to take the second jerrican home and he would give it to her when she came back. She returned for the CD and the appellant led her to his house to collect other CD since he indicated the one, he had was not good. He asked her to enter the house but she refused. He took a knife and pulled her into the house. She started screaming and he beat her with the handle of the knife on her upper lip which started bleeding.

8. He blindfolded her, pushed her onto the bed, removed her trouser and proceeded to have sex with her. When he was done, he removed the blindfold and threw her outside the house with her clothes and CD. She testified that she was bleeding, in pain in her thighs and vagina, and could not walk properly. She met her mother to whom she narrated the events that had occurred. Her mother took her to Nairobi Women's Hospital for medical care and attention and she was admitted there for a week. They also reported the incident at Ngong Police Station and she identified the appellant to the police.

9. JG (Pw 2) testified that she is the mother of the complainant. On August 23, 2013 at around 2. 00 pm she sent the complainant to go and fetch water, which she did. She later came home crying saying that she had been raped by the appellant. She observed that her trousers were torn. She escorted her to the police station where they reported the incident and was treated at Nairobi Women's Hospital.

10. Simon Nzambu (Pw 3), a clinical officer at Nairobi Women's Hospital, produced a medical report by Dr Matheka who had examined the complainant on August 23, 2013. The observation made was that the complainant had injuries on the upper lip and the right thigh had abrasions. The trouser zip was torn and the pants had blood. She had not taken a bath. Whitish discharge was oozing from her vagina and the hymen was absent. She was put on post-exposure medication and antibiotics. The conclusion was that she had been defiled.

11. Dr Kizzi Shako (Pw 4) of Nairobi Police Surgery examined the complainant on August 26, 2013. She had lacerations on her upper lip which was swollen. There were bruises on the left thigh which was painful. She also had multiple lacerations of the hymen and tears and the vaginal region was painful. She produced a P3 report which indicated that the injuries were indicative of penetrations.

12. The trial court found that the appellant had a case to answer and put him on his defence. He gave a sworn statement. He told the court that he is a boda boda rider and was helping his mother sell water at her shop. He denied defiling the complainant insisting that he did not know her. He also told the court that he was 17 years old at the time of the incident producing his birth certificate and national identity card.

Analysis And Determination 13. In ground 1, the appellant argued that the trial court erred in law by failing to take into account that he was 17 years old at the time of the commission of the offence. The appellant produced his national identity card, which indicated that he was born on August 29, 1995 and was 17 years and 11 months at the time of the commission of the offence. However, the charge sheet on record indicated that the appellant was an adult. The issue for consideration is whether the appellant's trial was conducted in accordance with theConstitution and the law in respect of the rights of a child.

14. TheConstitution of Kenya 2010, the Children Act, 2001 as well as international instruments on rights of children are explicit on protection and rights of children especially when they come into conflict with the law; that such child in conflict. Such child is presumed to be in need of protection and care. The Judiciary as an arm of government is under obligation to address the needs of, inter alia, children. In that regard, under article 21 (3) of theConstitution the rights of the child amongst other vulnerable members are protected, which provision reads as follows:All State organs and all public officers have the duty to address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, and youth, members of minority or marginalized communities, and members of particular ethnic, religious or cultural communities.”

15. Of greatest significance in these proceedings is article 53 of theConstitution of Kenya, which provides as follows: -i.The overriding principle: A child’s best interests are of paramount importance in every matter concerning the child. (article 53(2)):ii.The right of every child not to be detained, except as a measure of last resort, andiii.When detained, to be held —a.for the shortest appropriate period of time; andb.separate from adults and in conditions that take account of the child’s sex and age.”

16. Also significant are the statutory guarantees for, and the manner in which to deal with children in conflict with the law. The guarantees to a child in conflict with the law are expressed in section 186 of the repealed Children Act, 2001 as follows:“186. Guarantees to a child accused of an offence“186Every child accused of having infringed any law shall—(a)Be informed promptly and directly of the charges against him;(b)If he is unable to obtain legal assistance, be provided by the Government with assistance in the preparation and presentation of his defence;(c)Have the matter determined without delay;(d)Not be compelled to give testimony or to confess guilt;(e)Have free assistance of an interpreter if the child cannot understand or speak the language used;(f)If found guilty, have the decisions and any measures imposed in consequence thereof reviewed by a higher court;(g)Have his privacy fully respected at all the proceedings;(h)If he is disabled, be given special care and be treated with the same dignity as a child with no disability.”

17. And the manner to deal with a child offender is prescribed in section 191 of the repealed Children Act as follows:(1)In spite of the provisions of any other law and subject to this Act, where a child is tried for an offence, and the court is satisfied as to his guilt, the court may deal with the case in one or more of the following ways—(a)By discharging the offender under section 35 (1) of the Penal Code (cap 63);(b)By discharging the offender on his entering into a recognizance, with or without sureties;(c)By making a probation order against the offender under the provisions of the Probation of Offenders Act (cap 64);(d)By committing the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake his care;(e)If the offender is above ten years and under fifteen years of age, by ordering him to be sent to a rehabilitation school suitable to his needs and attainments;(f)By ordering the offender to pay a fine, compensation or costs, or any or all of them;(g)in the case of a child who has attained the age of sixteen years dealing with him, in accordance with any Act which provides for the establishment and regulation of borstal institutions;(h)By placing the offender under the care of a qualified counsellor;(i)By ordering him to be placed in an educational institution or a vocational training programme;(j)By ordering him to be placed in a probation hostel under provisions of the Probation of Offenders Act (cap 64);(k)By making a community service order; or(l)In any other lawful manner.”

18. Section 224 of the Children Act, 2022 also provides identical provisions in dealing with children in conflict with the law. The provisions are in keeping with the International Convention on the Rights of the Child, to which Kenya is a state party.

19. In this case, the appellant was aged seventeen (17) years at the time of being charged with the offence, and therefore, a child who was in need of care and protection. He was not afforded legal counsel or even the benefit of the advice of a children’s officer. He was arrested, charged, detained, and convicted as an adult. He went through a trial which, by law, was unfair. In addition, he was committed to a custodial sentence of 15 years without any explanation that the custodial sentence was necessary and or as a last resort.

20. The totality of the infringement of the rights of the appellant resulted in a defective trial. In other words, it was a mistrial.

21. The upshot of the foregoing analysis is that the appeal succeeds with the result that the conviction and sentence are hereby quashed.

22. I find that on the evidence produced if believed a conviction might result.

23. I therefore order for the retrial of the appellant before magistrate of competent jurisdiction pursuant to this court’s powers under section 354 (3) (a) (1) of the Criminal Procedure Code (cap 75) Laws of Kenya.

24. I direct that the appellant be produced before the court of the chief magistrate for re-trial purposes as soon as practicable.

JUDGEMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH OF NOVEMBER, 2022. JM BWONWONG’AJUDGEIn the presence of-Mr Kinyua: Court AssistantThe appellant in personMs Edna Ntabo for the respondent