[2022] KEHC 13658 (KLR)

Ongong’a v Republic (Criminal Appeal 11 of 2020) [2022] KEHC 13658 (KLR) (12 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13658 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal 11 of 2020

KW Kiarie, J

October 12, 2022

Between

Sheth Ongong’a

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O.A case NO. 15 of 2018 of the Principal Magistrate’s Court at Oyugis (Kendu Bay Mobile Court) by Hon. C.A. Okore–Senior Resident Magistrate)

Judgment

1. Sheth Ongong’a, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 0f 2006.

2. The particulars of the offence are that on 28th July, 2018 at Kawadhgone Sub location, Rachuonyo North sub County within Homa Bay County, intentionally and unlawfully caused his penis to penetrate the vagina of IAO, a child aged 15 years.

3. The appellant was sentenced to 20 years imprisonment. He was aggrieved and filed this appeal against both conviction and sentence.

4. The appellant was represented by the firm of G.S Okoth, Advocates. He raised eight grounds of appeal as follows:a.The learned trial magistrate misdirected herself on several matters of law and fact.b.The learned trial magistrate erred in law of procedure in taking of plea and fixing the case for hearing to be on 26th September, 2018 before explaining to the appellant his right under Article 50(g) of the Constitution of Kenya 2010. c.The learned trial magistrate erred in law of evidence and criminal law in concluding that the act of defilement was committed merely because a clinical officer alleges that the complainant had a broke hymen and lacerations on her labia.d.The learned trial magistrate erred in law of Criminal Procedure in refusing to adjourn the hearing on the 13th February 2019 thus forcing the accused to conduct his case without the services of an advocate when the complainant gave evidence despite the fact that the court was informed of the cogent reasons of the adjournment thus leading to a mistrial in terms of Article 50(g) of The Constitution of Kenya, 2010 whereas the court on several occasions adjourned the trail on the application of the prosecution.e.The learned trial magistrate erred in law of evidence in deciding the case against the weight of evidence and in ignoring the many contradictions in the evidence of prosecution witnesses.f.The learned trial magistrate erred in law in admitting the evidence of a witness who was said to be mentally challenged and whose evidence may not therefore satisfy the conditions laid down by Section 124 of The Evidence Act considering that her evidence was not corroborated by any other independent evidence.g.The leaned trial magistrate erred in law of procedure in failing to note that by proceeding to take the evidence of the accused (appellant) in the absence of his advocate, having chosen to be represented and without recording reasons for so doing amounted to a mistrial and was in contravention of the accused’s rights as enshrined in Article 50(g) of The Constitution of Kenya 2010. h.The learned trial magistrate erred in law in passing sentence which was excessive in the circumstances and in failing to exercise her discretion in sentencing.

5. The appeal was opposed by the state through Mr. Ochengo, learned counsel on grounds that:a.This was a case of recognition.b.The complainant was of sound mind.c.The alibi defence was inconsistent.d.The sentence was the minimum provided for.

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 of Okeno vs. Republic [1972] EA 32.

7. Article 50 (g) m of the Constitution provides as follows:(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;

8. The plea was taken on 20th August 2018. Though the record does not show that the right to be represented was explained to the appellant, on 29th August 2018 Mr. Okoth was placed on record for the appellant. The appeal cannot therefore turn on the issue of failure to inform him of his right; by implication he was aware of it.On the 14th February 2019 the case proceeded in the absence of the advocate for the appellant. The advocate filed a letter dated 18th January 2019 indicating that he would be engaged in the High Court at Migori. Previously when this matter came up for hearing on 5th February, 2019 the appellant sought an adjournment on grounds that his advocate was engaged in the High Court at Homa Bay. Certainly the advocate for the accused did not conduct himself as was expected. He ought to have asked a colleague to hold his brief with suggested hearing dates. There was ample time for the advocate to move the court and seek the change of the hearing date in good time. The court cannot be blamed for hearing the case in the absence of the advocate.

9. When the matter came up for defence hearing on 28th January, 2020 the advocate for the accused was absent and did not ask any other advocate to hold his brief. The appellant informed the court that he was ready to proceed well knowing that his advocate was not present. He cannot turn around and claim that he was disadvantaged. Secondly, the appellant cannot be allowed to benefit from the mistake of his own advocate. If there was an issue to raise on this point, certainly it would not against the court but his advocate. His appeal cannot turn on this point.

10. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:a.That there was penetration of the complainant’s genitalia;b.That the accused was the perpetrator; andc.The age of the victim must be below eighteen years.This position was echoed in the case of Fappyton Mutuku Ngui vs. Republic [2012] eKLR.

11. According to the complainant at the time of she gave evidence on 14th February 2019 she was 15 years old. Her mother PW2 testified that she was born on 11th March 2003. This would mean that at the time of the complained offence, she was 15 years and 4 months. When the complainant’s mother was recalled on 21st June 2019, she said her daughter ws born in 2002. PW4the girl’s father said she was born in the year 2003.

12. Section 8(3) of the Sexual offences Act provides:(3)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 twenty years.

13. Since the prosecution did not prove whether the complainant was 15 or 16 years old at the time of the offence, the trial court ought to have resolved the discrepancy in the evidence of age in favour of the appellant and make a finding that she was sixteen years. This would have affected the sentence in favour of the appellant.

14. In this case just like many other sexual offences cases, there were no eye witnesses. The proviso to section 124 of the Evidence Act provides:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.I will therefore endeavour to establish if the learned trial magistrate arrived at the right conclusion in believing the minor.

15. The complainant herein was a minor who was mentally challenged. According to the minor, it was the appellant who defiled her.

16. Ernest Omollo (PW3) is the clinical officer who examined the complainant on 1st August 2018. He concluded that there was defilement for there was fresh lacerations on the labia minora. He also observed that the complainant was not “mentally” fit. Two issues emerge from this evidence.

17. One, the medical evidence contradicted the complainant who claimed to have bled after the defilement and her clothes were blood stained. Ernest Omollo (PW3) testified that he indeed observed that the hymen was perforated but this was not recent.

18. Two, is whether the complainant given the assessment by the clinical officer and the allegation by the witnesses that she was mentally challenged was in a position to testify and her evidence be acted upon without corroboration. The prosecution had at one time applied for her mental assessment but unfortunately no report was filed. The trial court was therefore not in a position to assess her and whether she was capable of testifying without corroboration.

19. My finding is that it was not safe to rely on the complainant’s evidence without corroboration given the contradictions I have observed hereinabove and her mental status.

20. The appellant pleaded an alibi. In the case of Victor Mwendwa Mulinge vs. Republic [2014] eKLR the Court of Appeal rendered itself thus on the issue of alibi:It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja v R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.

21. In the instant case, weighing the alibi against the evidence adduced by the prosecution, I find it highly probable. This therefore means that the prosecution did not prove its case against the appellant to the required standards. I accordingly quash the conviction and set aside the sentence. The appellant is set at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 12THDAY OF OCTOBER, 2022KIARIE WAWERU KIARIEJUDGE