[2022] KEHC 11817 (KLR)

Nyalala v Republic (Criminal Appeal 1 of 2020) [2022] KEHC 11817 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11817 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal 1 of 2020

KW Kiarie, J

July 21, 2022

Between

Clinton Ochieng Nyalala

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O.A case No.8 of 2019 of the Senior Principal Magistrate’s Court at Mbita by Hon. Jacinta A. Orwa–Senior Principal Magistrate)

Judgment

1. Clinton Ochieng Nyalala, the appellant herein, was convicted of the offence of gang defilement contrary to section 10 of the Sexual Offences Act No.3 of 2006.

2. The particulars of the offence were that diverse dates between 16th to 17th day of February, 2019 at Gwassi South Location in Suba Sub County within Homa Bay County in association with another not before court, intentionally and unlawfully caused their penis [sic] to penetrate the vagina of CAO a child aged 16 years.

3. The appellant was sentenced to 15 years imprisonment. He has appealed against both conviction and sentence.

4. The appellant was in person. He raised grounds of appeal as follows:a.That the sentence of 15 years imprisonment imposed by the trial magistrate is harsh as it violated the right to benefit from the least severe punishment under article 50(2) (p) of the Constitution.b.That the trial magistrate erred in law and facts by not considering that the charge of gang defilement was not proved beyond reasonable doubt as there was not clear evidence as to who penetrated the complainant.c.That the trial magistrate erred in law and facts by not considering that the evidence adduced in court was too weak to support the charges of defilement.d.That the trial magistrate erred in law and facts by relying on prosecution’s evidence that was marred with contradictions and inconsistencies.e.That the trial magistrate erred in law by not putting into consideration defence evidence.f.That the trail magistrate erred in law and facts by relying on medical evidence which exonerated the appellant.

5. The appeal was opposed by the state through Mr. Ochengo, learned counsel, who contended that the offence of gang defilement was proved to the required standards.

6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case ofOkeno v Republic[1972] EA 32.

7. Section 10 of the Sexual Offences Act defines defilement in the following terms:Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.

8. When the appellant contends that the sentence imposed by the trial magistrate was harsh as and violated the right to benefit from the least severe punishment under article 50(2) (p) of the Constitution, he is not right. The learned trial magistrate imposed the minimum available sentence.

9. An offence of gang defilement, is established against an accused person if the ingredients of defilement are established as was defined inFappyton Mutuku Ngui v Republic [2012] eKLR where the court said:Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.In addition to these ingredients, it must be established that the assailant was in association with another or other persons in committing the offence of defilement or that though the assailant did not penetrate the victim of defilement, but with common intent, was in the company of another or others who committed the offence. In the case of Elly Otieno Alose v Republic[2019] eKLR where the court held:Under section 10 of the Act, the key ingredients of the offence of Gang Rape include:a)Proof of rape or defilement;b)Proof that the assailant was in association with another or other persons in committing the offence of rape or defilement or that the assailant did not per se commit the offence of rape or defilement, but with common intent, was in the company of another or others who committed the offence.

10. The evidence against appellant is that of CAO (PW1). At one point she said that the appellant dragged her to his cottage and did a bad thing. She however did not disclose what the bad thing was. At another instance, she testified that the appellant did not defile her.

11. This witness was declared a hostile witness but the prosecution instead of cross examining her applied that she be remanded in police custody. The application was allowed.

12. When a witness is declared hostile, the witness is not placed in custody but the party calling the witness is given leave to cross examine the witness who may have a good reason of departing from the previous recorded statement. The witness may not necessarily be a liar. In Batala v Uganda [1974] EA 402 the court at page 405 said:The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile, and it can be given little, if any, weight.The prosecutor ought to have cross examined this witness to elicit from her the reasons why she gave two contradictory versions.

13. Her issue was approached like that of a refractory witness. Section 152 of theCriminal Procedure Code provides:1. Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence—(a)refuses to be sworn; or(b)having been sworn, refuses to answer any question put to him; or(c)refuses or neglects to produce any document or thing which he is required to produce; or(d)refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him.(2)If the person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required of him, the court may again adjourn the case and commit him for the same period, and so again from time to time until the person consents to do what is so required of him.(3)Nothing contained in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.

14. After CAO (PW1) was taken to court after a stint in police custody, she testified to the effect that the appellant had defiled her. It would not be safe to rely on her evidence for two reasons; she may later have testified against the appellant for fear of being taken back to police custody. Secondly, the prosecution having failed to elicit from this witness as why her evidence was contradictory, her evidence cannot be reliable. The Court of Appeal in the case of Ndungu Kimanyi v Republic [1979] KLR 283(Madan, Miller and Potter JJA) held:The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.

15. There being no other evidence against the appellant, I find that the conviction was unsafe. I quash the conviction and set aside the sentence. The appellant is at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE