[2023] KEHC 21573 (KLR)

Karani v Republic (Criminal Appeal E009 of 2022) [2023] KEHC 21573 (KLR) (26 June 2023) (Judgment)

Neutral citation: [2023] KEHC 21573 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E009 of 2022

SM Githinji, J

June 26, 2023

Between

Jackson Baraka Karani

Appellant

and

Republic

Respondent

(Appeal from original conviction and sentence in lower court criminal case file No.295 of 2015 in the Senior Principal Magistrate Court at Kilifi before Hon J.M.Kituku – SPM in Chambers dated 26th November, 2021)

Judgment

CORAM:Hon. Justice S. M. GithinjiAppellant in personMs Ocholla for the State 1. Jackson Baraka Karani was charged in the lower court with a main count of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No 3 of 2006.

2. The particulars of this offence are that on the December 6, 2013 in Kilifi Township within Kilifi county, the appellant intentionally and unlawfully caused his penis to penetrate into the vagina of IKF, a child aged 15 years.

3. In the alternative the appellant faced a charge of committing an indecent act with a child, contrary to section 11 (1) of the Sexual Offences Act No 3 of 2006.

4. The particulars hereof being that on the December 6, 2013 in Kilifi Township within Kilifi county, the appellant intentionally touched the genital organs namely vagina and breasts of IKF, a child aged then 15 years, with his hands and penis.

5. The complainant in this case who gave evidence as Pw-1 was born on June 6, 1998 in accordance to her Certificate of birth No xxxx produced by her mother the Pw-2 in this case as Exhibit 3. This shows that on December 6, 2013 she was 15 years old.

6. Pw-2 who alleged that the complainant herein is her child, stated her children L, G and E attended their Aunt’s wedding. However, Pw-1 the complainant herein is called I and stated she attended the wedding with her sister JK, the Pw-3 in this case. At the wedding there was music and the guests were dancing. Pw-1 and Pw-3 were standing somewhere together. The appellant herein who’s their uncle went to where they were and held the complainant’s hand. He led her away. Pw-3 thought he wanted something from her. There were electric lights and were able to recognize him. It was at about 12. 00am. He led her to a bush near the house. He undressed her starting with her skirt. He held her on the throat. He then removed her panty and had sex with her. He threatened that if she tells anyone he will kill her. She was in pain and it was her first time to have sex. She remained seated at the place when he left. Pw-3 noted that Pw-1 had taken long to return and together with neighbours decided to look for her. On the road to their home at a place where there was a bush, they saw her seated. She went and asked her what had happened. She disclosed that JBK (the appellant herein) defiled her and left her in the bush. She was led back to the ceremony and at dawn she was taken home. Pw-3 was told about the incident. She reported to the police and a P3 form was issued. The P3 form and PRC form were filled at Kilifi District Hospital. What was noted is that the hymen was not intact, external genitalia had bruises, urine had pus cells but pregnancy and HIV tests were negative. The reports were thus filled. Pw-4 produced them as exhibits. The investigating officer was not called as a witness and the prosecution closed their case.

7. The appellant was placed on his defence and his defence is that on December 6, 2013 he had attended the wedding at Maweni. He met the complainant who left the wedding place with a boy called B. They left at 12. 00am. The appellant’s brother is married in the family of I and she is therefore an in-law. He knew her well. There is a time he had fought with I’s father who sells palm wine. He threatened him and after 2 weeks he was arrested. Out of the said grudge he was fixed with the offence in this case.

8. The trial court weighed the evidence and concluded that all the ingredients for the offence of defilement were established by the prosecution beyond reasonable doubt. The appellant was then convicted of the offence and sentenced to serve 20 years imprisonment.

9. Dissatisfied with the said conviction and sentence, he appealed to this court on the grounds that; -1. There is no cogent evidence connecting him to the offence.2. The prosecution case was not investigated as the investigating officer was not availed as a witness.3. The appellant was not accorded a fair trial as guaranteed under article 50 of the Constitution of Kenya, 2010. 4.The defence case was not adequately weighed.

10. The appeal was canvassed by way of written submissions and both parties filed their respective submissions.

11. The prosecution (respondent) concurred with the appellant that he was not accorded a fair trial due to failure to recall witnesses as the trial court had directed, and conceded to the appeal on the said ground.

12. I have evaluated the charges, evidence adduced in support, the defence, judgment, grounds of the appeal and the submissions. What emerges for determination is whether the trial as conducted in the lower court breached the appellant’s right to a fair trial as enshrined under article 50 of the Constitution of Kenya 2010.

13. The trial was marred with confusion and did not flow smoothly. The one which stands out clearly is where the court got confused and before the investigating officer had been called, and the prosecution closed it’s case, accused was found to have had a case to answer and given a chance or option on his defence; the case was closed and submissions called for. When the mistake was noted, the case was re-opened and prosecution allowed a chance to recall witnesses for further cross-examination by the accused’s advocate. Such never happened and the prosecution case was closed, defence offered and judgment made.

14. Section 146 (4) of the Evidence Act cap 30 provides that;-“The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so the parties have the right of further cross-examination and re-examination respectively.”

15. In the case of Moses Ndichu Kariuki v Republic CRA 228 of 2008 [2009] eKLR the Court of Appeal observed that; -“In our determination, the right to cross-examine is the linchpin of the concept of a fair trial in that, it has a bearing on the principle of the equality of hearing and the equality of arms without which a trial cannot be said to have been conducted fairly. On our view, denial to cross-examine in turn means that the defence was not treated fairly and the two requirements of equality of arms were not satisfied.”

16. In this appeal I have indicated of some contradictions in the evidence of Pw-1 and Pw-3, with that of Pw-2, their alleged mother. If the witnesses were recalled for further cross-examination by the accused’s advocate probably the correct position would have been established.

17. The investigating officer was not called and the evidence is incomplete on how the appellant was arrested and charged.

18. The trial court having established the need to have the witnesses recalled for further cross-examination and re-examination, should have pursued it, and in case it was proven impossible, made a finding to the said effect and accordingly give directions. Failure to have done so denied the accused the right to a fair hearing, based on the principle of equality of hearing and the equality of arms.

19. Given the foregoing considerations I do find the appeal merited and is hereby allowed. The conviction and sentence are quashed and the appellant set free unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 26TH DAY OF JUNE, 2023. ..........................S.M.GITHINJIJUDGEIn the Presence of1. The Appellant in Person2. Ms Ocholla for the Prosecution