[2019] KEHC 5860 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 87 OF 2015

MM..........................................................................APPELLANT

-VERSUS-

REPUBLIC.........................................................RESPONDENT

(Appeal arising from the original conviction and sentence in Machakos Senior Resident Magistrate’s Court (Hon. L. Simiyu, Ag. SRM), in Criminal Case SOA No. 820 of 2013 and judgement delivered on 4. 4.2014)

JUDGEMENT

1. This is an appeal from the judgement, conviction and sentence of Hon. L. Simiyu, Ag. SRM, in Criminal Case SOA No. 820 of 2013 and judgement delivered on 4. 4.2014. The Appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.

2. It is the appellant’s case that the prosecution did not prove its case beyond reasonable doubt. That age, penetration and identification were not established to the required standard. It is also his case that the prosecution case was full of contradictions and inconsistencies. Further he submits that spermatozoa was not seen when examination was carried out on the victim and therefore his appeal be allowed, the conviction quashed and the sentence set aside and he be set free.

3. The state submitted that the court erred in denying the appellant a right to cross-examine the witness who gave unsworn statement and therefore this was in breach of his constitutional right to a fair trial as encapsulated in Article 50 of the constitution and therefore there was no sufficient evidence of defilement hence the conviction was unsafe. Counsel cited the case of Sula v Uganda (2001) 2 EA.

4. This is the first appeal and this court has to evaluate the evidence afresh and make its own conclusion. PW1 MNK was the complainants’ mother. She testified that she had three children and the victim was aged 7 years and that they lived with the appellant who is a brother to her husband. On 24. 4.2013 she returned home at 1 pm and did not find the victim and she called her out but there was no response and she saw her later at 4 pm when she came back with Kshs 6/- and 2 mandazis. The minor informed her that her uncle had sent her to the shop and had earlier locked her in his house and that she had been defiled. She told her that the appellant told her not to respond when she was called out by her mother. She testified that she checked the victim and saw some discharge and she took her to Machakos Level 5 Hospital where she was given medication and a P3 form. She tendered a clinic card as evidence that the child was born in 2007. It is the evidence of PW1 that they decided to report the matter to the police and the appellant was arrested in July.

5. PW2 was the complainant. She gave unsworn evidence. On the material day, she was playing with her baby brother when the appellant called her to his house and he removed her underwear and had carnal knowledge with her and gave her Kshs 20/- to buy mandazi that she did and she remained with Kshs 6/-. Her mother called her out at 1 pm and the appellant refused her from responding or getting out. She informed her mother who took her to the hospital.

6. PW3 was a brother to the victim and he gave an unsworn statement that he was playing near the parent’s house and the appellant was inside his house when he noticed that the victim had disappeared. Later the victim emerged with 2 mandazis and Kshs 6/- and she told him that the appellant bought them for her. He recalled that the appellant had called the victim before she vanished

7. PW4 Joho Matogoro testified that he was the one who arrested the appellant in July after a report had been made and that the appellant was found in possession of 2 rolls of cannabis sativa.

8. PW5 Hansen Nzioki Mutua the assistant chief of Kivutini Sub-Location testified that on 7. 7.2013 he accompanied the party that went to arrest the appellant.

9. PW6 Dr. Janet Muia is a medical Officer who was based at the Machakos Level 5 hospital. She worked with Dr. Musyoka who examined the victim on 2. 5.2013. The child was anxious, hymen was not intact. On examination of her reproductive organs, there were bruises on the labia majora and minora and she formed the opinion that there was evidence of penetration as the hymen was not intact. The P3 form was produced.

10. PW7 Cpl Priscilla Syokau was attached at the Machakos police station and on 24. 4.2013 she received a report of a defilement of the victim by her uncle and she issued a P3 form and sought for the appellant who was found on 27. 7.2013. She testified that she was given a health clinic card showing that the child was born on 5. 1.2007, and that when the report was made, the victim appeared afraid and she told her that when the victim was playing with her siblings the appellant called her and defiled her and gave her Kshs 20/- to buy mandazi and she had change of Kshs 6/=.

11. The appellant gave a sworn defence. He stated that on the material day he was at work and at 1 pm and he was beaten by some youth and on 28. .7. 2013 he was arrested and taken to Machakos Police Station and he had a grudge with his neighbour. The appellant was found guilty of the offence of incest and sentenced to life imprisonment.

12. In as much as the prosecution has conceded to the appeal, the substantial issues to be addressed are whether the court may grant an order for retrial and whether the prosecution proved its case against the appellant beyond reasonable doubt in respect of all the counts. In addressing whether a retrial may be granted, there would have to be a finding that there was a mistrial, which defect can only be corrected by way of ordering a retrial. The appellant submitted that on the material day he was at work. This issue was part of his defence. This was raised after PW1 had testified. The appellant stated that he was not allowed to cross examine Pw2 and Pw3 and that by Pw1 slapping Pw2 she forced her to give out her evidence. The part of the evidence that the appellant was at home on the material day is not corroborated and it appears that it is one word against the other. The offence took place between 1 pm and 2 pm on 24. 4.2013. There is evidence of penetration that is corroborated by the evidence of Pw6 and the P3 form that was filled on 2. 5.2013 and the injuries were seven days old. However the medical officer concluded that the offence was defilement. The age of the victim is not disputed for there is a health card and the prosecution evidence places the appellant at the scene. The appellant was well known to Pw1 for he was a relative. Therefore the question of identity of the appellant had been proven and this is more a case of recognition rather than identification. FRANCIS MUCHIRI JOSEPH – V- REPUBLIC [2014] eKLR had this to say on recognition:

“In LESARAU – v-R, 1988 KLR 783,this court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name. In R-V-Turnbull,(1976) 3 All ER 551, Lord Widgrey CJ observed that the quality of identification evidence is critical: if the quality is good and remains good at the close of the defence case, the danger of mistaken identification is lessened, but the poorer the quality, the greater the danger. He went on to state:

“Recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

13. Given the evidence on record, I do find that the evidence is not weak. It is corroborated. The evidence is direct. PW2 knew the appellant. It is not a case of mistaken identity.

14. The appellant challenged the fact that no spermatozoa was found. However this is of no consequence on weakening the prosecution evidence for in the case of the court of appeal in ANDREW APIYO DUNGA & ANOTHER - V- R [2010] eKLR viz:

“That F was raped was confirmed by the medical report and there was no need to match the spermatozoa found inside her with that of each appellant as the offence of rape is complete once there is penetration of the female’s genital organ with the male’s penis. It is not necessary that spermatozoa be released. In this case medical evidence confirmed F’s evidence that there was penetration of her vagina by a male organ. According to her evidence which both courts below accepted, the persons responsible were both appellants.”

15. The prosecution contends that the appellant’s constitutional rights were violated as he was not allowed to cross-examine the complainant and her brother. Article 50(K) of the constitution provides for the right of an accused to adduce and challenge evidence. The Trial Court conducted Voire Dire on PW2 and made the following remarks:-

Court – The child of tender years and does not understand the nature, seriousness and meaning of an oath. She shall proceed by unsworn evidence.

16. The learned trial magistrate made the same comment in respect of Pw3 and after the victim and the Pw3 testified, they were not cross examined. That was incorrect procedure. Every witness whether minor or adult is supposed to be cross-examined by the accused person. It is a right accorded to the accused and it is upon the accused to decide whether or not to cross-examine the witnesses. There is a difference between an unsworn witness and the unsworn evidence of an accused person.

17. In the case of Sula V. Uganda (2001) 2: E.A, the Supreme Court Of Uganda held as follows:-

“Although an accused person is not liable to cross-examination if he chooses to give unsworn testimony, the law does not prohibit the cross-examination of a child witness who has not given sworn testimony because she did not understand the nature of oath. A child witness who gives evidence not on oath is liable to cross-examination to test the veracity of his/her evidence.

18. Similarly, In the case of Nicholas Mutula Wambua v Republic, Mombasa Criminal Appeal No. 373 of 2006 (C.A), It was held:-

“The second point we wish to discuss is whether or not a child witness, who gives evidence not on oath is liable to cross-examination. There appears to be a widespread misconception that a child witness who is allowed to give evidence without taking oath because of immature age, should not or cannot be cross-examined…..It would appear that misconception arises from a view that because accused persons are not cross-examined whenever they make unsworn statements in the defence, child witnesses who did not take the oath should be treated in the same way. Such a view is oblivious of the peculiar protection given to an accused person in the form of a right to make an unsworn statement with no liability to be cross-examined.”

That thinking is expressed in Section 208 of the CPC which govern hearing of Criminal proceedings in the Magistrate’s courts. It provides that during the hearing, the accused persons or his advocate may put questions to each witness produced against him. Accordingly, all prosecution witnesses are liable to be cross-examined in order to test the credibility and the veracity of the witness. The Trial Courts should always observe that requirement of the law in criminal trials to obviate an otherwise stable case from being lost on that omission.”

19. The issues which arises is whether the prosecution case was prejudiced as a result of failure by the Trial Court to allow a minor witness who gives unsworn evidence be cross examined. It is true there is violation of the appellant’s constitutional right to challenge the evidence of the minor witness. The evidence of PW2 and Pw3 implicate the appellant. My view is that the court has to evaluate the other evidence independently without that of the minor who was not cross examined and make its own finding. Failure to subject a minor witness to cross examination should not be an automatic licence to acquittal of the accused. The entire prosecution evidence has to be evaluated. The issue is whether the court can still convict the appellant without the evidence of the witness who was not cross examined.

20. In the case of Joseph Lekulaya Lelantile & another v Republic [2002] eKLR; Criminal Appeal No. 33 of 2000 (Nyeri), the court quashed the conviction of the appellant who did not cross examine a witness because the evidence of identification was not sufficient to sustain the conviction.

21. As was stated in the case of Ahmed Ali Dharmsi Sumar vs Republic 1964 E.A 481 and restated in Fatehali Manji vs The Republic 1966 E.A. 343:-

“In general a re-trial will be ordered only when the original trial was illegal or defective. It will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the Prosecution to fill up gaps in its evidence at the first trial. Even where a conviction is vitiated by a mistake of the trial Court for which the Prosecution is not to blame, it does not necessarily follow that a retrial should be ordered. Each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interest of justice require it and should not be ordered where it is likely to cause an injustice to the accused person.”

22. The Court of Appeal in the case of Mwangi vs. Republic [1983] KLR 522 held as follows;

“…several factors have therefore to be considered. These include:

1. A retrial will not be ordered if the conviction was set aside because of insufficient evidence.

2. A retrial should not be ordered to enable the prosecution to fill up the gaps in its evidence at the first trial.

3. A retrial should not be ordered where it is likely to cause an injustice to the accused person.

4. A retrial should be ordered where the interest of justice so demand.

Each case should be decided on its own merits.”

23. I am satisfied that the prosecution evidence proved the case beyond reasonable doubt. However because of the infraction on the right to a fair trial by not allowing the appellant to cross-examine the Pw2 and Pw3, I hereby order a retrial. The availability of witnesses shall not be complicated because the complainant, her mother and Pw3 can be availed by the prosecution. The appellant has barely served a fraction of the sentence and is not likely to be prejudiced by the retrial. The interest of justice demands that a retrial in this matter be ordered.

24. In the result the appeal partly succeeds. The conviction is quashed and the sentence is set aside and is substituted with an order that a retrial in the matter be conducted. To this end the appellant is ordered released from prison custody and be placed in police custody at Machakos Police station and to be presented before the Chief Magistrate Machakos Law Courts on the 10th day of July 2019 for the purposes of a retrial.

It is so ordered.

Dated and delivered at Machakos this 9th day of July, 2019.

D.K. KEMEI

JUDGE