[2022] KEHC 16373 (KLR)

Owala v Republic (Criminal Appeal E003 of 2021) [2022] KEHC 16373 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16373 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E003 of 2021

RPV Wendoh, J

December 15, 2022

Between

Samson Otieno Owala

Appellant

and

Republic

Respondent

Judgment

1. This is an appeal against the judgment of the Hon M Obiero, Principal Magistrate Migori that was delivered on December 16, 2020. The appellant, Samson Otieno Owala was charged with two offences count I rape contrary to section 3(1)(a)(c) as read with section 3(3) of Sexual Offences Act. The particulars of the charge are that on May 18, 2019, at 2:00a m at [Particulars witheld] area, Rongo Sub County, intentionally and unlawfully caused his penis to penetrate the vagina of JVA without consent.In the alternative to the above charge, the appellant faced a charge of committing an indecent act with an adult contrary to section 11 (A) of the Sexual Offences Act.

Count II Robbery with violence contrary to Section 295 as re ad with Section 296 (2) of the Penal Code. 2. The appellant is alleged to have robbed the complainant JVA of Kshs 5,700/= and immediately before or after the time of such robbery, used actual violence on the said JVA while armed with a knife and metal rod.Upon conviction, the appellant was sentenced as follows:- Count 1: 15 years imprisonment;

Count II 30 years imprisonment.

3. Sentences were ordered to run consecutively.Aggrieved by the conviction and sentence, the appellant filed this appeal based on the following grounds:-1. That the offences were not proved to the required standard;2. That the trial court violated his rights under Article 50(2)(g) and (h) of the Constitution;3. That the identification of the appellant was not full proof;4. That the trial court failed to consider his defence;5. That the sentence is harsh and excessive.

4. The appellant filed submissions in which he reiterated the above grounds.On the issue of identification, the appellant argued that the incident occurred at night and the court did not consider that the circumstances were not condusive to identification. He further urged that reliance on the testimonies of PW1 and PW2 under the circumstances was unsafe.The appellant further argued that the charge sheet was defective and not properly framed and should have ben amended in terms of section 214 of the Criminal Procedure Code. The appellant also challenged the manner which the identification parade was conducted. He therefore prays that the conviction be quashed and sentence set aside.

5. The prosecution counsel Mr Mulama, Principal Prosecution Counsel filed submissions on October 27, 2022. As regards the offence of rape, it was the counsel’s submission that the ingredients of the offence were proved through the oral evidence of PW1, PW2, PW3 and PW5 and he relied on the decision of Peter Wanjala v Republic (2021) eKLR where the court held that rape can be proved by both direct and circumstantial evidence.As to identification, it was counsel’s submission, that the circumstances were favourable for positive identification because of the time taken and the conversation the assailant had with the complainant and thirdly the light from security lights enabled PW1 to see the assailant.As for the charge of robbery with violence, counsel also submitted that the applicant was armed and the ingredients of the offence under section 296 (2) of the Penal Code were proved.

6. As regards failure to comply with Article 50(2) (g) and (h), counsel argued that the court may have fallen into error by not advising the appellant of his rights but it was remedied when counsel came on record for the appellant and applied to recall the complainant PW1. Although the complainant was not recalled it was due to circumstances beyond the court’s control; that therefore, the appellant’s rights were well taken care of and it was not even demonstrated that any substantial injustice has been occasioned.As for the alleged defective charge sheet, counsel submitted that the defect in the charge was not sufficient to vitiate the proceedings. Counsel relied on the decision of Paul Katana Njuguna v Republic (2016) eKLR.On sentence, counsel maintained that two distinct offences were committed and considering the seriousness and circumstances of the offences, the sentences were not harsh or excessive.

7. This being a first appeal, this court is required to exhaustively examine all the evidence adduced before the trial court, analyse it and arrive at its own independent findings. The court should off course bear in mind that it neither saw nor heard the witnesses testify, an opportunity which the trial court had. This court is guided by the decision ofOkeno v Republic (1972) EA 32. The prosecution called a total of five (5) witnesses, PW1, J V O the complainant; PW2 Erick Ochieng Farrau, a motor cycle rider whom the complainant called soon after the attack on her; PW3, the complainant’s house help; PW4 EMM, a clinical officer at Rongo Sub County hospital who examined PW1 and PW5 PC Albert Nyabando the investigating officer in this case.When called upon to defend himself, the appellant gave a sworn statement.

8. One of the grounds raised by the appellant is that his fundamental rights under Article 50(2)(g) and (h) were violated. It is my view that I should first deal with this complaint before venturing into the other grounds because if the court agrees with the appellant, then the other grounds may fall by the way.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.

9. Article 50 of the Constitution guarantees an accused persons’ right to fair trial. Under Article 50(2)(g), the trial court is required to inform an accused person of his right to counsel. It does not mean that counsel be provided to accused but mere information so that an accused can make a decision whether or not to procure the services of counsel. If one cannot afford counsel and still requires services of counsel, they can then apply to the Legal Aid Committee to avail him counsel if he qualifies. Apart from informing an accused of the right to counsel, the said accused should be informed of this right promptly. Prompt should be as soon as the accused is arraigned before the court and before plea is taken or soon thereafter but before the trial commences so that an accused can prepare for trial. Under Sub Article 50 2 (g), an accused needs to be accorded ample time to prepare his case. The courts have discussed the above provision at length. J Mrima in Chacha Mwita v Republic Criminal Case No 33 of 2019 (Migori) discussed the issue at length. The court said as follows:-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 v 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.

10. J Nyakundi had an opportunity to deal with the same issue inJoseph Kiema v Republic (2019) eKLR where he stated as follows:-……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……

11. It is clear from the record of appeal that the trial court did not inform the appellant of his right under Article 50(2)(g) of the Constitution. When the matter came up for hearing on July 8, 2019 the accused said he was not ready because he was trying to get on advocate and the case was adjourned. On July 9, 2019, the case proceeded when the appellant said he had failed to get an advocate.

12. After PW1, PW2 and PW3 testified Mr Roche advocate came on record for accused. Counsel applied that PW1 be recalled which application the court granted. On November 13, 2019, the prosecutor said that he had difficulties tracing the complainant. The court proceeded to hear other witnesses. At the end of the day, the prosecution counsel applied for adjournment to recall PW1 and the case was adjourned to November 29, 2022. Again, the prosecutor applied for adjournment for unknown reason which was granted upto February 26, 2020. PW1 was never mentioned again till the trial was concluded. The prosecution counsel urged the court to excuse the court for overlooking to inform the appellant of his right because it was remedied by the court allowing the recall of PW1. However, the court did not ensure that PW1 was recalled. From PW1’s testimony she works as a court Assistant at Rongo Senior Principal Magistrate’s Court. This court is not convinced that the prosecutor or investigating officer made any attempt to get PW1 to testify. Having allowed the application to recall PW1, the court should have ensured that she was recalled and all efforts made to ensure she attended court for cross examination by PW1’s counsel. The appellant was faced with a very serious charge which attracts life sentence and his rights should have been paramount.

13. I find that the appellants rights to fair trial were violated and allowing PW1 to be recalled did not cure that omission. Further to the omission, PW1’S counsel was denied an opportunity to cross examine PW1. The appellant having been charged with such a serious offence which attract life sentence, the court as a protector of the accused’s rights, should have ensured that it’s orders were complied with and the appellants rights were safeguarded. Due to the said omissions, I find that the proceedings are a nullity. Consequently, the conviction is quashed and sentence set aside. The other grounds of appeal therefore fail by the way.

Should the court order a retrial? 14. The East African Court of Appeal in Ahmed Sumar v Republic (1964) EA, set down some criteria that a court should adopt before it can order a retrial.The court stated as follows:-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.

15. One of the criteria to be considered in ordering a retrial is whether the potentially admissible evidence is likely to result in a conviction. I have had a look at the testimonies of the complainant, PW1, PW2 and PW4 and I am convinced that the said evidence is likely to result in a conviction.

The next criteria is whether the appellant is likely to suffer prejudice. 16. First, the appellant was charge d with two very serious offences. One carrying a sentence of life imprisonment while the other death if found guilty. The court has to balance both the rights of the appellant and the victim. The appellant was sentenced to a total of forty five (45) years, on December 16, 2020. So far, he has only served two years in prison which is not a substantial part of the sentence. For that reason, the appellant will not be prejudiced if a retrial is ordered.In the circumstances, I find that this is a good case for the court to order a retrial which I hereby do.

17. The appellant is released to the Kamagambo Police Station to be presented to Rongo Court on December 19, 2022 before the Senior Principal Magistrate for fresh plea. This being a retrial the case should be expedited. If the appellant is convicted in the case, then the trial court should take into account the term he has served in this case.It is so ordered.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 15TH DAY OF DECEMBER, 2022. R. WENDOHJUDGEJudgment delivered in the presence ofMr. Mulama, for the State.Appellant present in person.Evelyne Nyauke – Court Assistant