[2022] KEHC 12433 (KLR)

Michael Odhiambo Otieno v Republic (Criminal Appeal E001 of 2021) [2022] KEHC 12433 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12433 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal E001 of 2021

RN Nyakundi, J

July 14, 2022

Between

Michael Odhiambo Otieno

Appellant

and

Republic

Respondent

Judgment

1This is an appeal by Michael Odhiambo Otieno hereinafter referred as the appellant who was tried before the lower court for the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.

2The particulars of the charge as framed by the prosecution are that on the March 13, 2016, within Nandi County unlawfully and intentionally touched the breast of a girl aged 14 years old.

3The appellant pleaded not guilty and the trial proceeded with 5 witnesses for the prosecution and one defence witness. The trial court upon assessing the evidence and the testimonies found the appellant guilty and sentenced him to 5 years’ imprisonment.

4The appellant filed the present appealvide a petition of appeal dated March 12, 2021. The appeal was based on 22 grounds of appeal. Majority of the grounds are a repetition or a statement of facts therefore I have identified the grounds that should be considered. The grounds are; The trial magistrate erred in law and in fact in convicting and sentencing the appellant without credible evidence.

The trial magistrate erred in law and in fact in convicting and sentencing the appellant on account of a defective charge.

The trial magistrate erred in law and in fact in convicting and sentencing the appellant on account of a charge that lacked critical information on identity of the victim.

The trial magistrate erred in law and in fact in convicting and sentencing the appellant in the absence of a crucial witness

The trial magistrate erred in law and in fact in relying on the uncorroborated testimony of a minor.

The trial magistrate erred in law and in fact in misapplying the concept of evidentiary burden of proof on criminal cases.

The trial magistrate erred in law and in fact in disregarding the appellant’s defence of alibi.

The trial magistrate erred in law and in fact in convicting and sentencing the appellant to 5 years’ imprisonment without taking into consideration the fact that the appellant had been in remand for 2 years between May 2016 and May 2018 and 5 months from between November 2020 and March 2021.

5It is the appellant’s case that the charge was defective. The charge does not identify the victim; it only talks of a girl aged 14 years of age. He cited the provisions of section 30 and 134 of the Criminal Procedure Code and submitted that a charge that is lacking pertinent information like the name of the complainant is a defective charge. He also cited the case ofJason Yongo v Republic(1983)eKLR and Micah Maina Kinuthia v Republic(2019) eKLR.

6The appellant submitted that PW3 testified that there were 4 teachers in the staffroom during cross examination and the trial court did not ask itself why he invited the victim to sit on his lap in the presence of 4 teachers. He further pointed out that there were inconsistencies on the evidence by the prosecution witnesses with regards to what actually happened in the staffroom and the date that the act occurred.

7The appellant submitted that the credible witnesses that the victim narrated the incident to were not called as witnesses.

8The appellant stated that he told the court that on the March 13, 2016 he was in Kisumu in the company of Suleiman Hamisi to attend the burial of his aunt. He travelled back to Kapsabet on March 14, 2016 and attended to his duty on March 15, 2016. Nothing happened until on July 11, 2016, 4 months later when he was arrested. It was the duty of prosecution to rebut the defence of alibi and cited the case of Michael Mumo Nzioka v Republic (2019) eKLR in support of his submissions. The police disregarded the defence of alibi and he was also not given a chance to call his witness who was away invigilating exams.

9He maintained that the prosecution failed to prove their case beyond reasonable doubt.

10The respondent has not filed any submissions.

11Upon perusal of the pleadings and the record of the court I have identified the following issues for determination; Whether the charge was defective

Whether the defence of alibi was disregarded

Whether the prosecution proved its case beyond reasonable doubt

Whether The Charge Was Defective 12The appellant’s contention is that the charge was defective as it did not contain the complainant’s name.

13Section 134 of the Criminal Procedure Code statesEvery charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information to the nature of the offence charged.

14In the case of JasonYongo vs Republic(1983) eKLR, JJA Porter and Chesoni rendered that a charge sheet is defective ifa.It does not accord with the evidence in criminal proceedings because of inaccuracies or deficiencies in the charge.b.If it gives a misconception of the alleged offences in its particulars orc.Mistaken descriptions in the particulars, the original charge is therefore defective within the meaning of section 214 of the Criminal Procedure Code.

15InMicah Maina Kinuthia v Republic (2019) eKLR the court held;I find it quite unusual that the trial court did not notice or if it did, did nothing about the obvious variance in the charge sheet and the evidence, and repeated the same in her evidence, and more particularly the failure to note that the charge sheet did not have a clear name of the alleged victim.It is not rocket science that without an identifiable complainant of a sexual offence, there can be no offence nor a conviction.In my very considered opinion, this omission is so grave that it goes to the core and root of the criminal charge.

16Upon perusal of the charge sheet, it is evident that the name of the complainant was omitted. In my opinion, I am persuaded that the charge sheet was fatally defective as it did not contain any name of a complainant. How then was the accused to mount his defence? I find that the charge sheet was for all purposes and intents fatally defective.

Whether The Defence Of Alibi Was Disregarded 17The appellant raised the defence of alibi to the attention of the police. As per page 45 of the proceedings he testified that he was in the company of Suleiman Hamisi on the material date, May 13, 2016 in Kisumu. He also asked for 2 weeks to avail his witness.

18In the case of Kiarie v Republic[1984]KLR the Court of Appeal stated:“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…...”

19The Court of Appeal in Erick Otieno Meda v Republic [2019] eKLR held;The law today is that it is up to the prosecution to displace any defence of an alibi and show that the accused was present at the place, and at the time the offence was committed by the accused or his accomplices.

20The prosecution did not even bother to cross examine the accused on the defence of alibi. From the proceedings, the court did not give him enough opportunities to avail his witness that would corroborate his defence of alibi.It is evident that the defence of alibi was not even given any consideration by the trial court.

Whether The Prosecution Proved Its Case Beyond Reasonable Doubt 21I have perused the proceedings and found some inconsistencies in the testimony by the prosecution witnesses. PW3 claimed that there were four teachers in the staffroom on the material date. However, the prosecution failed to call the said teachers as witnesses. Further, the appellant raised the defence of alibi and as was stated earlier, it was upon the prosecution to displace the defence of alibi. The prosecution failed to do so and the court did not consider the defence of alibi at all. The trial court immensely failed the accused person by closing his case before awarding him the opportunity to call his defence witness.

22In the case of Keter v Republic[2007] 1EA135 the court held:“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

23Given that these witnesses would have corroborated that the accused was in the school on the material date thereby dismantling his alibi defence, I am of the opinion that the failure to call them was detrimental to the case. Whereas the evidence act allows for the uncorroborated testimony of a minor in sexual offence cases, the moment the appellant raised the defence of alibi it was upon the prosecution to dispute said defence accordingly.

24In the premises I find that the appeal succeeds and the appellant should be set free forthwith.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 14THDAY OF JULY, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:-Mr MugunMr Odhiambo for the Appellant present