[2022] KEHC 16327 (KLR)

Onyango v Republic (Criminal Appeal E016 of 2022) [2022] KEHC 16327 (KLR) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16327 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E016 of 2022

RPV Wendoh, J

December 16, 2022

Between

Jairus Onyango

Appellant

and

Republic

Respondent

Judgment

1. This is an appeal by Jairus Onyango, against the judgment of Senior Principal Magistrate, Migori. He was convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.

2. The particulars of the charge are that on October 15, 2020, at [Particulars witheld] village Uriri Sub County, intentionally caused his penis to penetrate the vagina of LPK, a child aged fifteen (15) years. The appellant was sentenced to serve fifteen (15) years.

3. In the alternative the appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.No finding was made on the alternative charge.

4. The appellant was aggrieved by the decision of the court and preferred this Appeal based on the following amended grounds of appeal.1. That Article 50 (2) (g) and (h), 48 and 27 of the Constitution were violated;2. That the applicant was not properly identified as the culprit as no identification parade was conducted;3. That the appellant’s defence was not considered.4. That the offence of defilement was proved to the required standard.

5. Mr. Mulama Principal Prosecution Counsel conceded the appeal on grounds that the court failed to comply with Article 50(2)(g) of the Constitution.

6. This being a first appeal, it is required of this court to re-examine all the evidence tendered in the trial court, evaluate and analyse it and arrive at this court’s own independent findings. The court must however take into consideration the fact that it never heard nor saw the witnesses testify so as to assess their demeanor.

7. This court is guided by the principles laid down in Okeno vs. Republic(1972) EA 32, on what the court should do in a first appeal.

8. In the trial court, the prosecution called a total of five (5) witnesses. PW1 HVA is the complainant’s mother to whom the complainant first reported about the defilement , PW2 LPK , is the complainant who was aged about sixteen (16) years; PW3 MEM is the complainant’s father who arrested the appellant; PW4 PC Luciano Akoth of Uriri Police Station is the investigating officer who escorted PW2 to the doctor for examination; PW5 Wycliff Ochieng is the clinical officer who examined the complainant on October 15, 2020.

9. When called upon to defend himself, the appellant gave unsworn evidence and did not call any other witness.

10. After looking at the grounds of appeal, it is this court’s view that the court should first deal with the alleged violation of the applicant’s rights under Article 50(2)(g) and (h) of the Constitution. This is because if the court agrees with the appellant then the appeal may be determined at that stage. Article 50 of the Constitution guarantees the rights of an accused person to fair trial. The said rights cannot be derogated. Article 50(2) (g) and (h) provided 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.

11. Under Article 50(2)(g) the trial court is mandated to inform an accused person of his right to legal representation. This is important so that an accused can make an informed decision whether or not to procure the services of counsel if he can afford. On the other hand, the accused may need to approach the legal Aid Committee for appointment of counsel if he is eligible for one. The accused should be informed of that right promptly which means before plea or soon thereafter so that the accused person may prepare his defence. Justice Mrima in Chacha Mwita vs. Republic Criminal Appeal No. 33 of 2019 Migori considered the said provision at length. The court said:-““Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett vs. Greyhound Racing Association(1968) 2 All ER 545 Lord Denning presented himself thus: -It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.In South Africa in Fraser vs. ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the Constitutional Court had the following to say: -Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation….In Kenya, the Supreme Court in Petition No. 5 of 2015 Republic -vs- Karisa Chengo & 2 Others[2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows: -the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more.

12. J. Nyakundi also dealt with the above provision in Joseph Kiema vs. Republic (2019) eKLR when he said:-“……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 the he cannot afford an advocate, one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced……From the foregone I believe I have said enough regarding the duty of a court to inform an accused person of the right under Article 50(2)(g) of the Constitution.That now leads to the other question as to what point in time should the right be explained to the accused person.Article 50(2)(g) of the Constitution dictates that the accused person must be informed of the right to legal representation promptly. In rightly answering the question Nyakundi, J. in Joseph Kiema Philip (supra) stated as follows: -…. The earliest opportunity therefore should be at the time of plea taking; the first appearance before plea is taken or at the commencement of the proceedings, that is at the first hearings… (emphasis added).

13. From the court record, it is clear that the court never informed the appellant of his right under Article 50 (2) (g). The said omission renders the proceedings a nullity.

14. The appellant also complained that Article 50(2) (h) was violated. The said provision requires that an accused be assigned an advocate by the State at State expense if substantial injustice would otherwise result and the accused has to be informed of this right promptly. The courts have considered the said provision in David Njoroge Macharia vs. Republic the court said:-“Article of the Constitution sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a state appointed lawyer if the situation requires it. Such cases may be those involving complex issues of facts or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence. We are of the considered view that in addition to situations where ‘substantial injustice would otherwise result’ persons accused of capital offences where the penalty is loss of life have the right to legal representation at State expense.”

15. In Karisa Chengo & 2 others vs. Republic (2017) eKLR the Supreme Court said:-“In the above context, it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:-i)the seriousness of the offence;ii)the severity of the sentence;iii)the ability of the accused person to pay for his own legal representation;iv)whether the accused is a minor;v)the literacy of the accused; andvi)the complexity of the charge against the accused.”

16. As set out above the factors to be considered in determining whether substantial injustice will result include the seriousness of the offence, severity of the sentence, the ability of the accused to pay for counsel; whether accused is a minor, the literacy of the accused; or the complexity of the case; Although the offence that the appellant faced was a serious one, yet the appellant did not demonstrate that he was unable to understand the proceedings or could not pay for representation, or that he was incapacitated in terms of communication. There was therefore no proof that substantial injustice would result if the appellant was not accorded counsel at State expense. The said violation was not proved.

17. However, having found that the proceedings were a nullity for failure to inform the appellant of his right to counsel, I find it unnecessary to delve into the other grounds of appeal. I hereby quash the conviction and set aside the sentence.

18. The next question is whether this court should order a retrial. The case of Ahmed Sumar vs. Republic (1964)EA set down some of the criteria the court should consider in ordering a retrial. The court said:“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.”

19. No doubt the appellant was charged with a very serious offence of defilement. Upon conviction, he would be sentenced to a minimum of twenty (20) years imprisonment. It would be proper that the case proceeds to full trial so that if found guilty, the culprit should face the full force of law. The court cannot over look the fact that the victims’ rights were also violated. Another consideration is whether the potentially admissible evidence is likely to result in a conviction. I have considered the testimony of PW1, PW2, PW3 and PW5 and I am satisfied that the potentially admissible evidence is likely to result in a conviction. There is overwhelming evidence that the complainant (PW2) was defiled. The complainant identified the appellant as the culprit.

20. Further to the above, the appellant was sentenced to fifteen (15) years imprisonment on 6/10/2022. He has only served a year out of the fifteen (15) years which is not a substantial part of the sentence and this court is satisfied that the applicant will not suffer any prejudice if a retrial is ordered.

21. In the end, I hereby order that there be a retrial. The appellant be released to Migori Police Station so that he can be presented before the Chief Magistrate’s Court Migori for fresh plea. The trial must be expedited. If the appellant is convicted, the sentence served in this case must be taken into account. Mention before Chief Magistrate’s Court Migori on December 19, 2022.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 16TH DAY OF DECEMBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence ofMr. Maatwa, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant