[2022] KEHC 16076 (KLR)

PW v Republic (Criminal Appeal E025 of 2021) [2022] KEHC 16076 (KLR) (6 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16076 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal E025 of 2021

RK Limo, J

December 6, 2022

Between

PW

Appellant

and

Republic

Respondent

(An Appeal against the conviction and sentence vide Mwingi Senior Resident Magistrate’s Court Criminal Case No. 144 of 2016. )

Judgment

1. PW, the appellant herein was charged with the offence of rape Contrary to Section 3(1) (a) of theSexual Offence Act No 3 of 2006 vide Mwingi Senior Resident Magistrate’s Court Criminal Case No 144 of 2016.

2. The particulars of the offence were that; the Appellant on the January 31, 2016 at [Particulars Withheld] sub-location, Nguni Division in Mwingi East Sub-county within Kitui, intentionally and unlawfully caused his penis to penetrate the vagina of KK without her consent.

3. He also faced an alternative count of indecent assault but since the subject of this appeal is in respect to the main count, the alternative count is not relevant here.

4. The Appellant pleaded not guilty to the charge and the prosecution called six witnesses to prove its case who testified as follows;

5. KK (PW1) an elderly lady testified and told the trial court that she was sleeping in her rental house when the appellant sneaked into her bed held her neck before raping her. Apparently, the old lady had not closed her door before going to bed. She testified that another lady known as K who acted as a house help had been instructed by the complainant to alert her before leaving the house so that she could wake up and close her door. The said K appears to have left before alerting the Complainant and that is why it was possible for the assailant to gain entry to the house at the wee hours of the night to commit the offence. The Complainant stated that he saw the appellant clearly as there was light though the source was not revealed. She testified that she bled a lot as a result of the ordeal and that on the next morning she was taken for treatment at Nguni Dispensary and later Mwingi District Hospital and that she later reported the incident at Mwingi Police Station. She stated that she knew the appellant well as she was a distant neighbour.

6. RK (PW2) told the court that she often made meals for PW1 and on the material night, she had made a meal for her and left them at 10. 40 PM without waking her up to close the door. She added that she went to make PW1 breakfast the following morning but she found a lot of blood at the floor and was informed by the Complainant that she had been sexually assaulted by the Appellant the previous night. She stated that she reported the incident to the police by herself as the complainant (PW1) could not walk and she took court to hospital in the company of a police officer. She also stated that the appellant ran away to Mombasa for a period of three months after the incident but later returned and was arrested by the police at a church.

7. Dr Ndirangu Joram (PW3) testified on behalf of his colleague, Dr Elias Wakholi who, he stated, used to work at Mwingi Level 4 hospital but had left at the time the matter was in court. The doctor stated that he had worked with his colleague for one year as such before he left and as such he was familiar with his handwriting. The doctor produced PW1’s treatment history as captured in a P3 form indicating that at the time of the examination, the complainant (PW1) injuries were estimated to be four days. That she had no injuries on her head, upper neck or lower limbs. Her labia minora was normal, her labia minora and clitoris were missing due to FGM. Her introituses/opening of the vaginal, cervical was lacerated, it was 0. 5cm. That she also had blood stained vaginal discharge. That the doctor also conducted a high vaginal swab as well as a urine test which indicated that she had an infection. He tendered the P3 as Ex 5. The P3 indicated that the complainant had been raped

8. Benson Mulwa(PW4) a clinical officer from Nguni Health Centre testified on behalf of his colleague Irene whom he stated used to work there but had left on transfer. He also stated that his colleague had recorded treatment notes in reference to PW1 after she was attended to at the health centre. The testified that he was able to read her handwriting as the two had worked together at the health centre. He produced information contained in the treatment notes as follows, that the Complainant had been attended to at the health centre with a history of rape, adding that she had bled at the time she was taken to the clinic and her clothes were blood stained. That she also had a big tear on the right side of her vaginal opening and experienced pain when passing urine. The witness stated that PW1 was treated at the centre and given medication. He tendered treatment notes P EXH 1 as well as a PRC form as P EXH 4.

9. Josephine Njeri (PW5) on partside testified that she was based at Nguni Police Post at the material time and that the Complainant reported that she had been raped on January 31, 2016 while sleeping adding that, the Complainant had slept without locking her door. She testified that the scene was visited by her colleagues who reportedly found blood on the bed. She added that the Complainant was aged 87 years and that she interrogated her and found out that she knew the culprit who raped her as the appellant herein.

10. Karen Naitore (PW6) a Clinician working at Mwingi District Hospital also testified at the trial and stated that the Complainant went to Mwngi District Hospital on February 1, 2016 with a history of being raped.She stated that she attended to her and noted that her clothes were blood stained and had bruises on her genital. She testified that vaginal swab that was done showed blood stains and an infection. She tendered the treatment notes as P Ex 2.

11. When placed on his defence, the appellant gave unsworn brief statement simply stating that he did not rape the complainant. It is also apparent from the record that at one stage of the proceedings the appellant was referred for mental treatment.

12. The trial court evaluated the evidence tendered and found that the Prosecution’s Case against the appellant had been proved beyond doubt, the trial court however, found that the appellant though guilty, was insane and sent him to custody under Section 167(1) of Criminal Procedure Code to be held at Presidential Pleasure.

13. The appellant was dissatisfied with the conviction and sentence and lodged this appeal raising the following grounds namely: -i.That the Learned trial magistrate erred in law and fact by failing to find that the prosecution evidence never met threshold conviction.ii.That the Learned trial erred in law and facts when concluded that the prosecution evidence was proved beyond reasonable doubts whereas there were contradictionsiii.That the Learned trial magistrate erred in law and facts while finding a conviction not understanding that the prosecution evidence was never corroborated and there were more doubts created by the prosecution witnesses.iv.That the Learned trial magistrate erred in law and facts by drawing inference from the evidence which did not flow logically to the lawv.That the Learned trial magistrate erred by failing to find that the conditions at the scene of crime was not ideal for identification.

14. In his written submissions dated April 26, 2022, the appellant contends that his identification as the perpetrator of the crime was doubtful because the offence was committed at night and the complainant was an elderly lady who could not possibly identify him.

15. He also takes issue with the medical examination done on the Complainant stating that the same was conducted 96 hours after the incident. He points out that the lab results showed no presence of spermatozoa adding that, he was framed.

16. The appellant has raised further additional grounds in his written submissions without leave of this court.The fresh additional grounds being incompetently raised will not be considered but in his further submissions he contends that he was unable to follow proceedings during trial owing to his mental state.

17. The Respondent has opposed this appeal through its written submissions dated September 22, 2022. It submits that the evidence it tendered at the trial court proved that the appellant committed the offence of rape against the Complainant.The State asks this court to exercise its discretion and cure the defect in the charge sheet that omitted to indicate the section providing for the penalty of the offence.

18. The Appellant has appealed on both conviction and the sentence rendered by the trial court. As the first appellate court, this court has the duty to re-evaluate the trial while at the same time appreciating that the Trial Court is the one that had the opportunity of actually hearing the testimonies and seeing witnesses testify. This duty was succinctly stated by the Court of Appeal in Okeno –Vs– Republic (1972) EA 32 as follows:‘An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellant’s court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.’

19. This court will first consider the defect pointed out on the charge sheet. The charge is framed in the charge sheet as ‘rape contrary to Section 3(1) (a) of the Sexual Offence Act.’

20. The sentence for the offence of rape is found under Section 3 (3) of the Sexual Offences Act which provides;‘A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life.’

21. As a matter of law, a charge sheet should clearly capture the Section creating the offence for which an accused is charged together with the Section that provides for the sanction. This is in order to meet both the constitutional requirements under Article 50(2) (b) and Statutory requirements under Section 134 of the Criminal Procedure Code. Article 50(2) (b) and Statutory requirements under Section 134 of the Criminal Procedure Code. Article 50(2) (b) provides that an accused person has a right to be informed of the charge with sufficient detail to answer to it. Section 134 of the Criminal Procedure Code provides that;‘Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.’

22. The essence of the above requirements is to ensure that an accused person is made aware of what he faces and what he is pleading to. That constitutes an element in a fair trial which is a fundamental right stipulated under Article 25 (c) of theConstitution of Kenya 2010.

23. I have considered the charge as drafted with the particulars on the charge sheet and it is apparent that despite the omission of the Section providing the sanction, it met the threshold cited above. The charge sheet in my view is considered to have sufficient details if it contains a statement of the relevant offence upon which an accused is charged and contains necessary particulars or information revealing the nature of the offence charged.In this instance, the particulars of the offence were provided as follows: -‘PW; On January 31, 2016 at [Particluars Withheld]Sub-location, Nguni Division in Mwingi East Sub-County within Kitui County, intentionally and unlawfully caused his penis to penetrate the vagina of KK without her consent.’

24. The above particulars in my view was sufficient and the appellant pleaded not guilty. He therefore, suffered no prejudice to the omission of the penalty Section. That omission is a defect curable under Section 382 of the Criminal Procedure Code which states;‘Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings’

25. The failure to capture the penalty part in the charge sheet cannot be said to have rendered the charge sheet defective. The Court of Appeal inRobert Mutungi Muumbi v Republic [2015] eKLR found the same as it held;'We are satisfied that the failure to refer to the punishment section in the charge sheet did not occasion a miscarriage of justice in this case'

26. The court of Appeal inBenard Ombuna v Republic [2019] eKLR referred to the Supreme Court of India decision in Willie (William) Slaney vs State of Madhya Pradesh [AIR 1956 Madras Weekly Notes 391], where it was held that;‘Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities. The omission of the Section providing penalty is a mere technicality.’

27. This court has perused through the proceedings and there is something of concern that has captured my attention.

28. It is evident that the Appellant suffers/suffered from a mental illness. The record shows that he was sent to Mathari National Teaching and Referral Hospital on several occasions for mental assessment and treatment. A report on the record dated November 6, 2017 from Dr AK Gitari indicated that the Appellant was not fit to plead. The record also shows that the Appellant was on medication in view of his mental status, the doctor had also recommended for some inpatient treatment and as late as May 9, 2018, the record shows that the Appellant was still been attended to at the Mathari Mental Hospital.

29. The trial court was informed by the Director of Public Prosecution on May 10, 2017 that the Appellant was suspected to have a mental illness and without any evidence to the contrary on the record, it is clear that the Appellant took plea on April 27, 2016 when he was probably not fit to plead. None the less trial proceeded upon the trial court found the Appellant guilty and proceeded to make a special finding. The trial court ordered the appellant to be detained in prison at the president's pleasure under Section 167 (1) (a) of the Criminal Procedure Code. The provision provides as follows;‘(a) In cases tried by a subordinate court, the court shall proceed to hear the evidence, and, if at the close of the evidence for the prosecution, and, if the defence has been called upon, of any evidence for the defence, the court is of the opinion that the evidence which it has heard would not justify a conviction, it shall acquit and discharge the accused, but if the court is of the opinion that the evidence which it has heard would justify a conviction it shall order the accused to be detained during the President’s pleasure; but every such order shall be subject to confirmation by the High Court.’

30. While the trial court for good measure directed that the sentence passed be passed over to this court for confirmation as stipulated by law, there is nothing on record that shows that the file or order was forwarded to the High Court.

31. After forwarding the order to the High Court, the Judge is required to forward to the minister a copy of the notes of evidence taken at the trial with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make. In this instance the file was not forwarded to this court going by the record and as such, the requirement under Section 167 (iv) was not met. That was prejudicial to the Appellant because he was later found to have, been unfit to plead in the first place.

32. The above provisions and or stations has elicited differing opinions from various courts and there is a general consensus in respect to the cited finding that the cited Section is altogether unconstitutional because it is discriminative and unfair because the net effect of the Section is that a mentally ill person can held a detention for an indeterminate period.

33. In Hassan Hussein Yusuf versus Republic [2016] eKLR, the court opined that Section 167 (1) of the Criminal Procedure Code is unconstitutional as it offends Article 25 and 29(b) of theConstitution of Kenya 2010 and that the provision was discriminative to people with mental illness because of the provision that the detention in a prison facility is for an indeterminate period.

34. InKimaru & 17 Others versus AG & Another, Kenya National Human Rights and Equality Commission Interested Party [2022] eKLR, Mrima J also weighed in and echoed the holding in Hassan Hussein Yusuf (Supra) when the inter alia made the following observations;‘This court, therefore, finds and hold that an accused who is found to be unfit to stand or to continue participating in a criminal trial due to mental challenges or an accused who is tried and a special finding of ‘guilty but insane’ made, is a person with disability and ought to be accorded the necessary protection and assistance required under theConstitution and the law.This court, hence, echoes the holding in Hassan Hussein Yusuf v Republic case that such a person is sick and ‘a sick person's place is at the hospital and not in prisonHaving considered the impugned sections through the lenses of theConstitution, this court returns the verdict that sections 162 (4) and (5), 166 (2), (3), (4), (5), (6) and (7) and 167 (1) (a), (b), (2), (3) and (4) of the Criminal Procedure Code contravene articles 25(a), 27 (1), (2), (4), 28, 29(d) and (f), 50, 51(1) and (2),159(2)(a), (b) and (d) and 160(1) of theConstitution.’

35. In this instance as I have observed above, the proceedings from the Lower Court indicate that the appellant was mentally unwell at least at some stage of the proceedings because at one state, the trial court halted the proceedings and referred the appellant for mental treatment. It is apparent that when PW1 and PW2 testified that the appellant sked no questions in the cross examination. The appellant at some stage engaged an advocate who appeared to have PW1 & PW2 recalled for cross-examination but before the same was done, the advocate withdrew stating that he was having difficulties getting instructions. The State Counsel then notified the trial court that the appellant had mental issues and needed medical attention. He was taken for treatment and the case was adjourned from May 19, 2017 to May 30, 2018 when it proceeded and apart from what the Director of Public Prosecution told the trial court, there was no medical report indicating that the appellant was then fit to stand trial.

36. The trial court’s verdict of guilty at the end of the trial, shows that the appellant may have been exposed to unfair because he was mentally unstable.

37. I also find that the ground in the appeal regarding identification is also legitimate. The evidence tendered by the prosecution as to the source of light in the scene is lacking. The Complainant states that she visually recognized the appellant but the source of light was not stated. The investigating officer testified that she never visited the scene and that it is her colleagues who visited the scene. None of those officers however, was called to shade light. The appellant has stated that the complainant is elderly and that fact was confirmed by PW5. The question of mistaken identity cannot be ruled out in the circumstances. Identification of the appellant was not free from possibilities of errors.

38. In the end, I find merit in this appeal. The conditions for positive identification of the appellant were missing from the tendered evidence. The complainant stated that the perpetrator did not talk during the ordeal and therefore, the question of recognition by voice did not arise. Besides, that, I am persuaded that the appellant was exposed to unfair trial because evidence of mental illness was tendered and was noted from the verdict. Had this court found basis for upholding conviction, I would still have found that the provisions of Section 167 were either not complied and/or that the Section is unconstitutional and find that the appellant should have been sent to a mental hospital rather than jail. That however, is now water under the bridge because I find that conviction was unsafe for the afore-stated reasons. I allow this appeal. The conviction and sentence is set aside; the appellant shall be set free otherwise lawfully held.

DATED, SIGNED AND DELIVERED AT KITUI THIS 6TH DAY OF DECEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE