[2022] KEHC 13429 (KLR)

Odhiambo v Republic (Criminal Appeal E009 of 2021) [2022] KEHC 13429 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13429 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E009 of 2021

RPV Wendoh, J

October 6, 2022

Between

Movine Odhiambo

Appellant

and

Republic

Respondent

Judgment

1. Movine Odhiambo, the appellant, was convicted by the R M Migori on the September 25, 2020, for the offence of defilement contrary to section 8 (1) as read with section (2) of the of the Sexual Offence Act.

2. The particulars of the charge are that on October 3, 2019, in Kanyamkago location, Uriri sub county within Migori county, intentionally cause his penis to penetrate into the vagina of JAO a child aged 7 years.

3. In the alternative, the appellant was charged with the offence of committing an indecent act contrary to section 11 (1) of the Sexual Offences Act but no finding was made on the said charge.

4. Upon conviction, the appellant was sentenced to 22 years imprisonment. The appellant being aggrieved by the trial court’s judgement, has filed this appeal. He relies on the following amended grounds of appeal filed in court on June 15, 2022;1. That the court failed to comply with articles 50 (2) (g) and (h) and 25 ( c) in that his right to counsel was not explained to him;2. That the sentence of 22 years is harsh and excessive;3. That the offence of defilement was not proved to the required standard.4. That the court failed to consider his defence.

5. The appellant therefore prays that the conviction be quashed and sentence set aside.

6. The appeal was determined on written submissions. The appellant filed his submissions in which he submitted that PW1’s evidence was not authentic because she was coached; That PW5 found that there was no penetration and hence the offence was not proved.

7. The appellant also urged that articles 50 (2) (g) and (h) were violated and being a layman, it was the duty of the court to protect his rights and hence he did not get a fair trial. He also submitted that section 211 of the Criminal Procedure Code was not complied with as he was not informed of his rights under the said section. He earlier submitted that the trial court failed to give any reason why it did not accept his defence and the sentence of 22 years was not justified.

8. Mr Omooria, the prosecution counsel also filed his submissions on June 22, 2022 where he submitted that the evidence of PW1, 2, 3 and 5 all went to prove that there was penetration of the minor by the appellant and hence the offence was proved. Counsel however conceded that the trial court did not comply with article 50 (2) (g) and (h) of the Constitution and that the court should therefore order a retrial.

9. This is a first appeal and it is the duty of this court to re-examine closely all the evidence that was tendered before the trial court, analyse it and arrive at its own conclusion and determination but make allowance for the fact that this court neither saw nor heard the witnesses testifying.

10. This court is guided by the decision ofOkeno v Republic (1972) E,32 where the court said;-

11. An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] 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. (Shantilal M Rulwala v Republic [1957] E A 570). It is not the function of a first appellate court merely to 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. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”

12. PW1 JA aged 7 years also known as ‘lady’ recalled that on October 3, 2019, she was sent by her mother to collect firewood and went her way. The appellant who she knows very well asked her to sweep her brother’s house and in the process of doing so, he placed her on the bed, removed her clothes, her pant and did bad manners to her by putting his ‘dudu’ in her private parts.

13. PW2 BA a child aged about 14 years and a cousin of the complainant recalled that on October 3, 2019 about 5:00pm when playing with others heard the complainant crying inside the appellant’s house. She peeped through the window and saw the appellant do bad manners to the complainant

14. It is PW2 who went to call PW3, BA, the complainants mother. PW3 found the complainant crying outside the appellant’s house but that PW1 did not say what happened to her; that PW1 later explained to PW3 that the appellant had defiled her. PW3 did not report to the police till after 3 days and the complainant was examined by PW5 Immaculate Ogutu, at Migori Referral Hospital. PW5 found that the hymen was broken and that there was penetration.

15. PC Howard Omwoha (PW4) testified on behalf of the investigating officer with whom he worked on the case. He said that the report of the defilement was made on October 8, 2019 because the parents of accused and the complainant were trying to reach a compromise.

16. It is the police who then sent PW3 and complainant for medical examination and age assessment.

17. When the appellant was called upon to defend himself, he made an unsworn statement. He said that he is a standard seven pupil at N primary school and denied committing the offence.

18. Having considered all the evidence and grounds of appeal, I think it is prudent to start by considering whether article 50 (2) (g) and (h) of the Constitution was violated by the court.

19. Article 50 (2) (g) and (h) provides as follows;-50(2) Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by an advocate, and to be informed of this right promptly.(h)to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of his right promptly.

20. Under article 50 2 (g), the court has the duty to inform an accused person of his right to counsel promptly. ‘Promptly’ has been held to be before plea or before trial commences.

21. This is because the accused person needs time to prepare his defence and decide whether he needs counsel or not. If he cannot afford counsel, whether he can seek legal aid through the legal aid committee. From the court record, the court did not inform the appellant of his right under article 50 (2)(g) of the Constitution. This right cannot be limited by dint of article 25 of the Constitution.

22. Under section 43 of the Legal Aid Act, it is the duty of the court to inform an accused person of the legal right to representation. The above provision was dealt with by J Mrima in Chacha Mwita v Republic CRA 33 of 2019. In Joseph Kiema Philip v Republic(2019) eKLR J Nyakundi stated as follows as regards the said right.

23. …………It is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that he cannot afford ab advocate…”

24. In the above case, J Nyakundi also stressed the fact that the accused should be informed of the said right at the time of plea or at the first appearance before plea is taken or at commencement of the proceedings.

25. Clearly, the court did not inform the appellant about his right to representation at any of stage of the proceedings and therefore breached his right to fair trial.

26. As regards article 50 (2) (h), of the Constitution, from the manner in which it is framed, the right is not absolute because the court must first satisfy itself that substantial injustice may result before it enforces the said right.

27. Failure to comply with article 50 (2) (g) rendered the trial a nullity. I hereby quash the conviction and set aside the sentence.

28. Having found as above, I do not think that the court needs to consider the other grounds of appeal. What the court should consider is whether to order a retrial. In Chacha Mwita case the court ordered a retrial.

29. For the court to order a retrial, it must comply with the guidelines that were set out in Ahmed Sumar v Republic (1964) EAR 843 where the court said as follows;-

30. It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person.”

31. To order a retrial, one of the considerations is, whether the potentially admissible evidence is likely to result in a conviction. I have considered the evidence of PW1,2 and 3. The appellant was known to the complainant. The offence took place during the daytime, and was witnessed by PW2.

32. The complainant (PW1) was a child aged only 7 years. I am satisfied that the admissible evidence is likely to result in a conviction.

33. The appellant has been sentenced to 22 years. He was sentenced on September 25, 2020. So far, he has only served two years which is not a substantial part of the sentence. If a retrial is ordered, he will not suffer any prejudice.

34. The appellant was charged with a very serious offence that carries a sentence of life imprisonment. It was committed against an innocent young child of 7 years and it is in the interest of justice that the perpetrator, if found guilty, should be brought to book and punished accordingly. In my view, the appellant will not suffer any prejudice that is not comparable to the offence allegedly committed.

35. For the above reasons, I find that this is a suitable case for a retrial. I hereby order that the appellant be retried for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offence Act.

36. The appellant is hereby released to Uriri police station to be produced before Migori CM’s Court on October 11, 2022 for plea.

37. I direct that the hearing of the matter be expedited, the same being a retrial. It is so ordered.

DATED, SIGNED AND DELIVERED AT MIGORI THIS 6THDAY OF OCTOBER, 2022R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama for the ODPPAppellant present in person.Nyauke Court Assistant