[2022] KEHC 13692 (KLR)

Mugo v Republic (Criminal Appeal E010 of 2022) [2022] KEHC 13692 (KLR) (3 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13692 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E010 of 2022

LM Njuguna, J

October 3, 2022

Between

Brian Marigu Mugo

Appellant

and

Republic

Respondent

(Being an appeal against the sentence and conviction by Hon. Ouko in S.O. No. 004 of 2020 in the SPM’s Court at Runyenjes and delivered on 26. 01. 2022)

Judgment

1. The appellant herein was charged with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act in Sexual Offence Case No 004 of 2020. The particulars of the charge were that on November 29, 2020, at about 1530 hrs at [particulars withheld] in Embu County, intentionally and unlawfully caused his penis to penetrate the vagina of VMM, a child aged 14 years.

2. He was charged with an alternative count to the main count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars of the alternative charge being that on November 29, 2020 at about 1530 hrs at [particulars withheld] in Embu County, intentionally touched the vagina of VMM, a child aged 14 years.

3. The trial court convicted the appellant of the offence of defilement contrary to section 8(1) as read together with section 8(3) of the Sexual Offences Act No 3 of 2006 and sentenced him to serve twenty (20) years imprisonment.

4. He was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are as listed on the face of the petition.

5. When the appeal came up for hearing, the court gave directions on filing of submissions which directions both parties complied with.

6. The appellant submitted that the trial magistrate erred in law and fact when it denied the appellant an adjournment to hire an advocate to conduct the case on his behalf. That the appellant was denied a fundamental right given the nature of the offence he was facing. Further, the appellant was never supplied with the necessary documents including the statements that the prosecution was to use during the trial and as such, the same resulted to the appellant’s rights being violated. In a nut shell, the appellant submitted that he was never given sufficient time to prepare his defence and further, the trial magistrate never explained to him the charge he was facing. That the plea taken by the appellant herein was not proper and the same impacted on the whole trial. Reliance was made on the cases of Adan v Republic (19773) EA 444 and in the Court of Appeal case in Kariuki v R (1954) KLR 809. Further, it was submitted that the sentence meted out by the trial magistrate was severe and a non-custodial sentence would have been appropriate in the case. This court was therefore urged to allow the appeal, quash the conviction and set aside the sentence.

7. The respondent submitted that the appeal is devoid of merit and thus should be dismissed. The respondent submitted that this court should call for proof of the appellant’s age to establish his accurate age at the time of the commission of the offence. It was submitted that the right to representation is not absolute and reliance was made on article 50 (2) (h) of theConstitution. Further, it was submitted that should the appellant disprove the fact that he was an adult at the time of the alleged commission of the offence, it was ready to concede on this ground.

8. In regards to sentence, it was submitted that the trial magistrate was within her rights as per provisions of the law to mete out the said sentence given the circumstances of the case. It was its case that the appellant was accorded a fair trial in that after taking plea, the hearing process was done in a language that the appellant understood and further, he was given a chance to cross examine all the prosecution witnesses; and it was the appellant’s own admission that, indeed, he was at the scene of the crime during the material time. That the trial magistrate who had a chance to watch the demeanour of the witnesses recorded that the complainant appeared intelligent enough to understand the court proceedings. In the end, the respondent prayed that this court takes into account the aggravating factors exemplified in the circumstances under which the offence was committed, the age of the minor and the seriousness of the offence.

9. I have considered the grounds of appeal before me and as already indicated, the appellant faults the trial magistrate for his conviction and sentence and as such, the court will have to determine whether the appeal herein has merits.

10. In determining this appeal, this court being a first appellate court, is alive to and takes into account the principles laid down in the case ofOkeno v Republic [1972] EA 32 where the court stated that: -'An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya v Republic 1975) EA 336 and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions.'

11. The appellant herein was charged with the offence of defilement and the same is provided for under section 8(1) of the Sexual Offences Act.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than 20 years.

12. On whether the prosecution proved the case against the appellant, the ingredients of the offence of defilement are as follows: -1. Identification or recognition of the offender2. Penetration3. Age of victim

13. But before delving into whether the same were proved by the prosecution, the appellant has submitted that he was not accorded a fair hearing in that, he was not provided with the witness statements and/or the documents that the prosecution had relied on during the hearing.

14. In determining this ground, I find that article 50 (2) (j) of theConstitution is relevant. This article guarantees an accused person a right to be informed in advance of the evidence to be relied on by the prosecution during the trial and to have reasonable access to that evidence.

15. The prosecution’s duty of disclosure was discussed by the Court of Appeal in Thomas Patrick Gilbert Cholmondeley v Republic, [2008] eKLR. The court noted that the prosecution is required to provide an accused person in advance of the trial with 'all relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items.'

16. Further, in the persuasive authority of Dennis Edmond Apaa & Others V Ethics & Anti Corruption Commission, [2012] eKLR the court (Majanja J) held that:'The words of article 50(2) (j) that guarantee the right to be informed in advance cannot be read restrictively to mean in advance of the trial. The duty imposed on the court is to ensure a fair trial for the accused person and this right of disclosure is protected by the accused being informed of the evidence before it is produced and the accused having reasonable access to it. This right is to be read together with other rights to fair trial. Article 50(2) (c) guarantees the accused the right to have adequate facilities to prepare a defence. This means the duty is cast on the prosecution to disclose all evidence, trial materials and witnesses to the defence during the pre-trial stage and throughout the trial. Whenever a disclosure is made during the trial the accused must be given adequate facilities to prepare his/her defence. The obligation to disclose was a continuing one and was to be updated when additional information was received.'

17. However, it is important to note that the right of an accused person to a fair trial must be balanced with the victim of the offence’s right to access justice and the public interest generally. This was the import of the Court of Appeal’s decision in Kamau Mbugua v Republic, [2010] eKLR where the court stated as follows in respect of an accused’s right to a fair hearing within a reasonable time:The right is not an absolute right as the right of the accused must be balanced with equally fundamental societal interest in bringing those accused of crime to stand trial and account for their actions.'

18. In the case herein and upon further perusal of the record, I find that the court did not conduct pre-trial conferencing to ensure that the appellant herein had the necessary documents to participate in the hearing process. [Also see Patrick Wasike Kuyudi v Republic [2022] eKLR].

19. Further, on the issue that he was not accorded time to acquire the services of an advocate, I find from the record that the appellant having informed the court that he could not reach his advocate, the trial court made a ruling that in as much as he has a right to representation, the complainant equally had an expectation for quick conclusion of her case. The court proceeded to deny the appellant an adjournment which appears to be unfair in my view, given that the trial court had previously granted an adjournment to the prosecution for reason that the witnesses had failed to turn up in court. It is important to note that an accused and in this case, the appellant, has a guaranteed right to challenge the prosecution’s evidence by being accorded an opportunity to have an advocate and to be informed of this right promptly. [See article 50 (2) of theConstitution; Patrick Wasike Kuyudi v Republic [2021] eKLR].

20. From the record there is no indication of pre-trial having been done and whether the appellant was provided with witnesses’ statements and the material necessary for him to adequately prepare his defence.

21. On sentencing, this in my view serves several purposes. In the case of R v Scott (2005) NS WCCA 152, Howie J Grove and Barn JJ explained the principle of sentencing thus:-'There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed, one of the purposes of punishment is to ensure that an offender is adequately punished, a further purpose of punishment is to denounce the conduct of the offender.'

22. The law as it stands in the given circumstances provides for a minimum sentence of twenty years and which sentence the court did mete on the appellant. I am guided by the directions given by the Supreme Court on July 6, 2021 in Petition No 15 & 16 (Consolidated)- Francis Karioko Muruatetu & Another v Republic and further stipulations provided for under section 8(3) of SOA. In this regard, can this court affirm the said sentence meted by the trial court given the circumstances under which the trial was carried out? I find to the negative.

23. In view of the foregoing, I find that the appellant’s right to a fair trial was violated. In the premises, I hereby set aside the conviction and sentence and remit back the file to lower court for retrial but before a different magistrate.

24. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD DAY OF OCTOBER, 2022. L NJUGUNAJUDGE………………………………for the Appellant……………………………….for the Respondent