[2022] KEHC 16081 (KLR)

PNK v Republic (Criminal Appeal 45 of 2019) [2022] KEHC 16081 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16081 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Appeal 45 of 2019

GL Nzioka, J

November 3, 2022

Between

PNK

Appellant

and

Republic

Respondent

(Being an appeal from the decision of; Hon R.L. Musiega, Resident Magistrate, rendered on 5th December, 2019, vide Senior Principal Magistrate’s Court in S/O No. 24 of 2018)

Judgment

1. The appellant was arraigned before the Senior Principal Magistrate’s Court at Engineer charged vide criminal case. S/O No. 24 of 2018, with the offence of; incest contrary to, section 20 of theSexual Offences Act, No. 3 of 2006, (herein “the act”), in the main count and an alternative count of; committing an indecent act with a child contrary to, section 11(1) of the Act. The particulars of each count are as per the charge sheet.

2. He pleaded not guilty and the case proceeded to full hearing. The prosecution called a total of four (4) witnesses who testified that, RWM (herein “the complainant”), was staying in the same house with her grandmother and the appellant, who is her uncle, being a brother to her mother.

3. That on several occasions in the months of; October and November, 2017, the appellant forcefully had sex with her and as a result she became pregnant and delivered a child. The complainant testified that, the appellant would remove her clothes and put her on the chair in the sitting room of her grandmother’s house. He would then remove his clothes and defile her and thereafter warn her not to tell anyone or else he would kill her. As a result, she did not inform anyone of the sexual assault,

4. However, she became pregnant as a result of the defilement and when the pregnancy became evident, her grandmother inquired as to whether she was pregnant and she confirmed the same and disclosed that the appellant was responsible.

5. That the matter was reported to her mother who confirmed the same from her and reported the matter to the Police. The appellant was then arrested and charged accordingly,

6. At the conclusion of the prosecution case the appellant was put on his defence and denied the offence. He testified that, while the complainant was staying with her grandmother she exhibited bad behaviour of returning home late. That, he raised the issue with his mother, who is the complainant’s grandmother and after discussion they agreed the complainant returns to stay with the mother.

7. That, when he informed the complainant’s mother that she needed to pick up the children, she was not happy and that is the reason she planted the charges herein on him

8. At the conclusion of the case the learned trial magistrate rendered a judgment dated December 5, 2019, in which the appellant was found guilty and convicted accordingly. He was then sentenced to serve thirty (30) years imprisonment.

9. However, being aggrieved by the trial court’s decision he has lodged an appeal herein vide petition of appeal filed in court on December 13, 2019, on the grounds:a.That the learned trial magistrate erred in law and fact by convicting the appellant but failed to note that the ingredients of the offence were not conclusively proved.b.That the learned trial magistrate erred in law and in fact by convicting the appellant yet failed to appreciate that there was no proper medical evidence linking the appellant to the commission of the offence.c.That the learned trial magistrate erred in law and fact by convicting the appellant yet failed to find that his defence was cogent and believable.d.That the learned trial magistrate erred in law and fact when he convicted the appellant yet failed to find that prosecution did not discharge the burden of proof.e.That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant without putting into consideration the appellant’s mitigation, the fact that he was a first offender and the provisions to such sentencing as provided by the court in Dimas Wafula Kilwake vs Republic [2018]eKLR.f.That, I pray to be supplied with a copy of the original trial court’s proceedings and its judgement.

10. However, on 30th September, 2022 and without the leave of the court the appellant filed amended grounds of appeal to the effect that, the learned trial magistrate erred in law and fact by acting on the wrong principles of the law and gave unlawful sentence. He did not find out that, the proviso to section 20 (1) of the Sexual Offence Act uses the words that the accused shall be liable to imprisonment for life. It was an error to hold that the sentence is mandatory while it is a maximum sentence and that the sentence of 30 years imprisonment period prescribed for the appellant is harsh and un-proportionate.

11. The appellant also filed submissions arguing that, the learned trial magistrate acted on the wrong principles of law and awarded an unlawful sentence of; 30 years for the offence of incest, which was not the mandatory sentence and contrary to section 20 of the Sexual Offences Act. Furthermore life imprisonment is not a minimum nor a mandatory sentence as the court has discretion to award a sentence that is not less than 10 years imprisonment but can enhance it up to life imprisonment, depending on the circumstances of the case. He relied on the cases of; PMM vs Republic [2018] eKLR and Thomas Mwambu Wenyi vs Republic (2017) eKLR cited in George Naina v Rep (2021)eKLR.

12. He argued that, the Judiciary Sentencing Policy Guidelines lists the objectives of sentencing and requires that, court should consider both aggravated and mitigating factors in sentencing an accused to a custodial sentence. That, the sentence by the learned trial magistrate did not factor in his age, the nature of his family that depended on him and urged the court to consider the same.

13. The appellant stated that, he has been involved himself in rehabilitation activities while in prison and is remorseful for his actions. Further, he has already spent four and a half (4 ½) years in prison and asked the court to exercise its discretion and quash the sentence and set him at liberty to return to society and live a rehabilitated life as a good citizen.

14. However, the Respondent filed submissions dated; 16th June 2022 opposing the appeal and argued that, the prosecution proved it’s the elements of the offence. That, the age of the victim was proved by the birth certificate produced in court which confirmed the minor was aged 14 years old.

15. On identification, it was submitted that, the victim knew the appellant as her uncle, which was corroborated by the victim’s mother who informed the court that, the appellant was her brother. Furthermore, the offence occurred during the day and the victim was able to identify the appellant.

16. Finally, penetration was proved by the testimony of the victim that the appellant had sexual intercourse with her severally and she conceived and bore a child. That, her evidence was corroborated by the doctor who produced the P.3 form and the Post Rape Care Form showing that, the victim had been defiled and was pregnant. Furthermore, DNA test was conducted and the report showed that the appellant was the father of the child. The court was urged the sustain the conviction and sentence of 30 years as the victim, was robbed of her childhood by her uncle as confirmed.

17. Having considered the entire appeal in the light of the materials placed before the court I find that, one of the critical issues the appellant has raised is the manner in which the DNA report was produced in evidence. It suffices to note that the DNA evidence was at the centre of this case and as the trial court put it, “the icing on the cake”

18. The appellant argues that he was not given an opportunity to cross examine the author to that DNA report. To put it in his own words he stated in his own evidence in chief:“I expected the doctor who conductedDNA to come and explain how the process was conducted. I had questions I wanted to ask on the DNA, on the person who conducted the DNA”

19. The appellant further stated in cross examination that:“If I had been asked when the DNA was produced in court, I would object because according to the period the court gave for DNA the period lapsed and the report given later”

20. I further note that, in the judgment delivered the trial court had this to say:“To add to the icing of the cake, the prosecution produced aa DNA report dated 10th June 2019 which showed that there was a 99. 99% that the accused was the father of the complainant baby”

21. The question is how was the report produced in evidence, a perusal of the trial court record shows that, the court ordered for the DNA report on the prosecution application. The appellant conceded to the same. An order to that effect was made on; 2nd April, 2019 and extended the following day.

22. On 16th September, 2019, the court was informed the report was ready. The appellant sought for a copy of the report and he was supplied with a copy thereof. The prosecution called No. 105087 PC Leah Njiri, the investigation officer who testified inter alia that:“Later after the court ordered for DNA samples we collected at Nyayo ward and DNAwas done. The same was done at Kenyatta Hospital. The results are back. I have a report dated 4. 6.2018. the report confirms that the accused is the father of the minor who was born the with the victim after defilement. I wish to produce it as exhibit 4”.

23. The prosecution then applied for the witness to be stepped down to confirm the where about of the victim and the new born baby. The appellant requested the two be availed the following day. However, the court rejected the application for adjournment and what followed was cross examination.

24. It is clear from the aforesaid that, it is not clear at all whether the DNA report was ever produced and if it was produced, it is clear that, the appellant was never given an opportunity to concede to the investigating officer producing the report or objecting to the same. Even more, no basis was laid for the investigating officer producing the same. Section 35 of the Evidence Act(Cap 80) provides that:-“(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—(a)if the maker of the statement either—(i)had personal knowledge of the matters dealt with by the statement; or(ii)where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and(b)if the maker of the statement is called as a witness in the proceedings:Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.(2)In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible or may, without any such order having been made, admit such a statement in evidence—(a)notwithstanding that the maker of the statement is available but is not called as a witness;(b)notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be.(3)Nothing in this section shall render admissible any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.(4)For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.(5)For the purpose of deciding whether or not a statement is admissible by virtue of this section, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a medical practitioner.”

25. The failure to accord the appellant the opportunity to cross examine the maker of the DNA report contravened his right to a fair trial as provided for under Article 50 (K) of the Constitution of Kenya, 2010, to adduce and challenge evidence. That, omission renders the proceeding null and void to that extend only.

26. The question is what order should the court make? In my considered opinion, this is a suitable matter to order for a retrial but restricted to the production of the DNA report per se. The retrial will therefore accord the appellant an opportunity to cross examine on the said report and in that case, the matter will be determined on merit without prejudicing any of the parties to the case,

27. In conclusion, I decline to delve into any other issue raised in the appeal, of which finding thereon may prejudice the retrial. I direct that this matter be mentioned before the Senior Principal Magistrate at Engineer Law Courts to be heard by a different judicial officer and on the issue of DNA report only. The trial court will then proceed to render its decision in the matter. In that case the judgment rendered herein on 5th December, 2019, is hereby set aside.

28. It is so ordered.

DATED, DELIVERED VIRTUALLY AND SIGNED ON THIS 3RD DAY OF NOVEMBER, 2022. GRACE L NZIOKAJUDGEIn the presence of:Appellant in personMs Maingi for the RespondentMs Ogutu: Court Assistance