[2022] KEHC 276 (KLR)

Masaka v Republic (Criminal Appeal 4 of 2020) [2022] KEHC 276 (KLR) (7 February 2022) (Judgment)

Neutral citation: [2022] KEHC 276 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal 4 of 2020

JM Mativo, J

February 7, 2022

Between

Benjamin Tole Masaka

Appellant

and

Republic

Respondent

(An appeal against Judgement, conviction and sentence passed in CMC Criminal Case Number 24 of 2019, at Wundanyi in Republic v Benjamin Tole Masaka delivered by E. M. Nyakundi on 24. 10. 2019)

Judgment

1. This is an appeal against conviction and sentence in Voi CMCR case number 24 of 2019, Republic v Benjamin Tole Masaka in which the appellant was sentenced to serve 35 years in prison for the offence of defilement contrary to section 8(1) & (2) of the Sexual offences Act1 (the Act). There was no finding on the alternative charge of committing an indecent act with a child.1Act No. 3 of 2006.

Approach by a first appellate court. 2. A first appellate court has to determine whether the appellant was correctly convicted and / or sentenced in respect of the offence. An appellate court will not interfere on either conviction or sentence unless it finds that the trial court misdirected itself as regards its findings of facts or the law.2 Where it is established that the trial court misdirected itself either on the facts or the law, an appellate court will be at large to interfere and deal with the matter as it deems fit, including substituting its own order or decision for that of the trial court, which may include an order for the setting aside of a conviction or the altering of the sentence.2See R vs Dhlumayo & Another 1948 (2) SA 677 (A). The principle was also restated in S v Mlumbi1991 (1) SACR 235(SCA) at 247g.

3. The realm for the intrusion by the appeal court on a finding of fact and credibility is constrained to few instances such as where there is a patent and material misdirection by the trial court where the recorded evidence shows that the finding is clearly wrong.3 Factual errors may be errors where the reasons which the trial court provides are insufficient or where he/she overlooks facts or improbabilities. Also, where the finding on fact is not dependent on the personal impression made by a witness’ demeanour, but principally upon extrapolations and other facts, and upon possibilities. The appeal court is also in an equal position to the trial court.43See S vs Hadebeand Others 1997 (2) SACR 641 (SCA) t 645e- f.4Ibid.

4. When appraising evidence, it is imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider. The decision to convict or acquit must account for all the evidence. Of course, some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored.55As Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) stated at 450.

5. The facts found to be proven and the reasons for the judgment must appear in the judgment. If there was evidence led during the trial, but such evidence is not referred to in in the judgment, it is safe for a court of appeal to assume that such evidence was either disregarded or not properly weighed or even forgotten. The best indication that a court has applied its mind in the proper manner is to be found in its reasons for the judgment including its reasons for the acceptance and the rejection of the respective witnesses.6 Nevertheless, by demanding the trial court to consider and weigh all evidence is not meant that the judgment of the trial court must also include a complete incarnation of all evidence led, as if it comprises a transcript of the proceedings. All it means is that the summary of the evidence led must entail a complete embodiment of all the material evidence led.76As was stated in S vs Singh 1975 (1) SA 227 (N) at 228:.7Mofokeng vs S (A170/2013) [2015] ZAFSHC 13 (5 February 2015).

6. This court must determine, as regards the conviction in the first place, what the evidence of the state witnesses was, as understood within the totality of the evidence led, including evidence led on the part of the accused or defence, and compare it to the factual findings made by the trial court in relation to that evidence, and then determine whether the trial court applied the law or applicable legal principles correctly to the facts in coming to its decisions / findings or judgment.8This court must consider whether the trial court considered all the evidence, weighed it correctly and correctly applied the law or legal principles to it in arriving at the judgment. This necessitates a close analysis of the evidence of each witness within the context of the totality of evidence, and what the trial court’s findings were in relation to such evidence.98Ibid.9Ibid.

7. This court must consider the evidence led in the trial court, juxtapose it against the judgment by the trial court, and determine whether there is any basis for interfering.10 If a court of appeal is of the view that a particular fact is so material that it should have been dealt with in the judgment, but such fact is completely absent from the judgment or merely referred to without being dealt with when it should have, this will amount to a misdirection on the part of the trial court. The appeal court must then consider whether the said misdirection, viewed either on its own or cumulatively together with any other misdirection, is so material as to affect the judgment, in the sense that it justifies intrusion by the court of appeal.1110Ibid.11Ibid.

The trial at the lower court 8. The prosecution case rested on the testimony of 4 witnesses while the defence rested on his unsworn evidence and that of his wife. The following is a proper evaluation and summary of the evidence led by the respective parties. The essence of the state’s case was that the complainant, aged 9 years, was defiled by the appellant. The appellant’s defence on the other hand is that he did not commit the offence.

9. On 7th August 2019, the Prosecutor made an application under section 31 of the Act and requested that the complainant be treated as a vulnerable witness because she was not competent to testify. He stated that she attends a school for mentally challenged persons called Nguraru Special Unit School. On record is a letter dated 31st July 2019 from the school’ Head Teacher confirming that the complainant has behavioural problems and that her mother is mentally challenged. The appellant did not object to this application. In a one sentence ruling the court stated: - “Application for intermediary is allowed under section 31 of the Sexual Offences Act.”

10. The manner in which the trial court approached the application under section 31 of the Act warrants interrogation. A pertinent question arises, that is, whether the trial court followed the correct procedure in handling the said application and whether in the one line ruling he declared the complainant a vulnerable witness and whether he properly appointed n intermediary as contemplated under section 31 of the Act. The parties did not address this pertinent issue.

11. Parliament in its wisdom enacted Section 31 of the Sexual Offences Act.12 Subsection (1) thereof provides as follows: -12Ibid. 1. A court, in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is—

a.the alleged victim in the proceedings pending before the court;b.a child; orc.a person with mental disabilities.

12. The question before essentially requires construing the content and scope of the above provision. In exercising this duty, this court is enforcing the Rule of Law by requiring that criminal trials be conducted within the ‘‘four corners’’ of the statutory provisions. In a statutory provision, this court will be acting as the guardians of Parliament’s will, seeking to ensure that the exercise of judicial power is in accordance with the scope and purpose of Parliament’s enactments.

13. Section 31 (3) of the act provides that the court may, if it is in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of such witness. Sub-section (4) provides that upon declaration of a witness as a vulnerable witness in terms of the section, the court shall, subject to the provisions of subsection (5), direct that such witness be protected by one of the following measures---a.allowing such witness to give evidence under the protective cover of a witness protection box;b.directing that the witness shall give evidence through an intermediary;c.directing that the proceedings may not take place in open court;d.prohibiting the publication of the identity of the complainant or of the complainant’s family, including the publication of information that may lead to the identification of the complainant or the complainant’s family; ore.any other measure which the court deems just and appropriate.

14. Further, sub-section (5) provides that once a court declares any person a vulnerable witness, the court shall direct that an intermediary referred to in subsection (3), be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the court shall record the reasons for not appointing an intermediary. Sub-section (6) provides that an intermediary referred to in subsection (3) shall be summoned to appear in court on a specified date, place and time to act as an intermediary and shall, upon failure to appear as directed, appear before the court to advance reasons for such failure, upon which the court may act as it deems fit.

15. Section 31(7) provides that if a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may—(a) convey the general purport of any question to the relevant witness; (b) inform the court at any time that the witness is fatigued or stressed; and (c) request the court for a recess.

16. In determining which of the protective measures referred to in subsection (4) should be applied to a witness, the court shall have regard to all the circumstances of the case, including—(a) any views expressed by the witness, but the court shall accord such views the weight it considers appropriate in view of the witness’s age and maturity; (b) any views expressed by a knowledgeable person who is acquainted with or has dealt with the witness; (c) the need to protect the witness’s dignity and safety and protect the witness from trauma; and (d) the question whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings.1313See section 31 (8).

17. The court may, on its own initiative or upon the request of the prosecution, at any time revoke or vary a direction given in terms of subsection (4), and the court shall, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation.1414See Section 31 (9).

18. More significant is section 31(10) which provides in peremptory terms that a court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary. Also relevant is section 31(13) which provides that an accused person in criminal proceedings involving the alleged commission of a sexual offence who has no legal representation shall put any questions to a vulnerable witness by stating the questions to the court and the court shall repeat the questions accurately to the witness.

19. The above provisions provide the manner in which criminal proceedings involving vulnerable witness are to be conducted. A reading of section 31 shows that it places a duty on the court to follow the steps specified in the act. This must be reflected in the proceedings. It requires the court to undertake an enquiry to properly conclude that the witness is vulnerable. In my view, the procedure should consist of two parts: - (1) questioning the witness by the trial Magistrate in order to form an opinion that the witness is vulnerable, and, (2) questioning a parent or a guardian. The learned Magistrate never followed these steps, so one wonders how he satisfied himself and concluded that the complainant was vulnerable. The provisions contemplate an inquiry which will support the finding.

20. A correct construction of section 31 leaves no doubt that it was necessary for the trial court to conduct an inquiry and form an opinion that the victim is a vulnerable witness. Section 31 requires the court to declare the witness a vulnerable person. This can only be done after an inquiry. The record must reflect the steps taken by the trial Magistrate, the conclusion arrived at and the declaration that the witness is vulnerable. The learned Magistrate declared the complainant a vulnerable witness without following the steps provided in the above section.

21. Section 31 (4) provides the steps to be taken to protect the witness once declared vulnerable. The court can either allow the witness to give evidence under protective cover of a witness protection box or direct that the witness gives evidence through an intermediary, or direct that the proceedings may not take place in open court, or prohibit the publication of the identity of the witness or take any other measures the court deems just and appropriate. The learned Magistrate did not take any of the above steps. It is an established principle of our law that an accused person is entitled to a fair trial and this ‘necessarily presupposes that the judicial officer who tries him is fair and unbiased and conducts the trial in accordance with those rules and principles or the procedure which the law requires. The procedures prescribed in section 31 are geared to ensure a fair trial.

22. Every accused has the right to a fair trial in terms of Article 50 (2) (k) of the Constitution. What exactly that right encompasses has not been circumscribed. It would be imprudent, even if it were possible, in a particular case concerning the right to a fair trial, to attempt a comprehensive exposition thereof. At the heart of the right to a fair criminal trial and what infuses its purpose, is for justice to be done and also to be seen to be done. However, the concept of justice itself is a broad and protean concept. In considering what, for purposes of this case, lies at the heart of a fair trial in the field of criminal justice, one should bear in mind that dignity, freedom, equality and the right to a fair trial are the foundational values of our Constitution.

23. Any measure that aims to both reduce the trauma experienced by complainant and improve the accuracy of their evidence must not undermine the accused’s fundamental right to a fair trial.15 While appreciating the difficulty presented by witnesses of tender age, it is my view that the drafters of the act were aware of such challenges hence the provisions of section 31. 15See generally Dietrich v The Queen (1992) 177 CLR 292; J J Spigelman, ‘The Truth Can Cost Too Much: The Principle of a Fair Trial’ (2004) 78 Australian Law Journal 29.

24. By failing to comply with the well-intentioned provisions of section 31 of the act which require an inquiry for the court to satisfy itself that the witness is vulnerable, the learned Magistrate fell into error. The underlying goal is the same — that the guilty are convicted and the innocent acquitted.’16 One of the great advantages of the common law system is that it is a flexible system, capable of steady adaptation to the needs of contemporary society.’17Having faulted the learned Magistrate, the question that follows is whether this is a proper case for retrial. The court must bear in mind that the complainant may have recovered from the trauma and subjecting her to recall the ordeal may not be in her interests. In addition, witnesses’ recollection may have faded while others may have relocated; hence, a retrial is likely to encounter challenges, which may affect the quality of the trial. Closely tied to this is the fact that both sides are aware of the evidence tendered, and, the temptation of parties coming to court fully prepared in anticipation of familiar questions compromises justice. For these reasons, I find and hold that a retrial would be not be in the interests of justice. Having so concluded, I allow the appeal on this ground, quash the conviction and sentence and order that the appellant be released forthwith unless otherwise lawfully held.16Ireland Law Reform Commission, Report: Prosecution Appeals and Pre-Trial Hearings, Report No LRC 81-2006 (2006) 5 [1. 03].17Lord Judge, ‘Vulnerable Witnesses in the Administration of Criminal Justice’ (Speech delivered at the 17th Australian Institute of Judicial Administration Oration in Judicial Administration, Sydney, 7 September 2011).Right of appeal explained.

SIGNED, DATED AND DELIVERED VIRTUALLY AT VOI THIS 7TH DAY OF FEBRUARY 2022. JOHN M. MATIVOJUDGE