[2019] KEHC 348 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL APPEAL NO. 57 OF 2018

RASHID WANYAMA OMAR...........................................................APPELLANT

VERSUS

REPUBLIC......................................................................................RESPONDENT

(Being an appeal from the conviction and sentence delivered on the 3rd day of August 2018

in Eldoret Chief Magistrate's Criminal Case No.5884 of 2015 by Hon. Kigen, RM)

JUDGMENT

1. The Appellant herein, Rashid Wanyama Omar, was the accused person before the lower court in Eldoret Chief Magistrate's Criminal Case No. 5884 of 2015: Republic vs. Rashid Wanyama Omar. He had been charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. The particulars thereof were that on the 11th day of October2015 at [particulars withheld] in Eldoret West District within Uasin Gishu County, he intentionally and unlawfully caused his genital organ (penis) to penetrate the genital organ (vagina) of WS., a girl aged 12 years.

2. In the alternative, the Appellant was charged with indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act,in that, on the 11th day of October2015 at [particulars withheld] in Eldoret West District within Uasin Gishu County, he intentionally and unlawfully caused his genital organ (penis) to come into contact with the genital organ (vagina) of WS., a girl aged 12 years. The Appellant also faced a second count of sexual assault contrary to Section 5(1)(a)(i) and (2) of the Sexual Offences Act. The particulars of the second count were that on the 11th day of October2015 at [particulars withheld] in Eldoret West District within Uasin Gishu County, he unlawfully used his fingers to penetrate the vagina of MO, a girl aged 11 years.

3. Upon his arraignment in court on 16 October 2015, the Appellant denied the charges and was thus taken through the trial process in which the Appellant was represented by Mr. Omusundi, Advocate. The matter was taken over by the learned trial magistrate, Hon. Kigen on 18 July 2015, after the two complainants had testified. She proceeded to take the evidence of the remaining four witnesses, as well as the defence case. And, in her considered judgment dated 3 August 2018, Hon. Kigen was satisfied that the two substantive counts of defilement and sexual assault had been proved beyond reasonable doubt. She, accordingly found the Appellant guilty thereof, convicted him and sentenced him to serve 20 years’ imprisonment for defilement under the 1st substantive count; and 10 years’ imprisonment for the offence of sexual assault as laid in Count II.

4. Being aggrieved by his conviction and sentence, the Appellant preferred this appeal on 13 August 2018 on the following grounds:

[a] That the trial magistrate erred in both law and fact by convicting him yet the prosecution case was not proved beyond reasonable doubt as required by law;

[b] That the trial magistrate erred in law by convicting him yet the prosecution case was marred by inconsistencies and contradictions;

[c] That the trial magistrate erred in law by convicting him without observing that the provisions of Section 200(3) of the Criminal Procedure Code had not been complied with;

[d] That the trial magistrate erred in both law and fact by convicting him without considering the grudge that existed between him and the mother of the complainant;

[e]That the trial magistrate erred in both law and fact by convicting him while rejecting his defence without giving cogent reasons as provided for in Section 169(1) of the Criminal Procedure Code.

5. In the premises, the Appellant prayed that his appeal be allowed, conviction quashed, and the sentence set aside. Later, on the 12 June 2019, Counsel for the Appellant filed an Amended Petition of Appeal with the leave of the Court, raising the following six grounds:

[a] That the trial court erred in law and fact by failing to analyse and evaluate the evidence critically and logically thus erroneously finding the Appellant guilty of defilement and sexual assault;

[b] That the trial court erred in law and in fact by failing to hold that the prosecution had not proved their case beyond reasonable doubt and proceeded to convict the Appellant on shaky and unproven evidence;

[c] That the trial court erred in law and in fact by failing to appreciate that the prosecution’s evidence was marred with contradictions and inconsistencies and hence not a safe basis to convict the Appellant;

[d] That the trial court erred in law and fact by convicting the Appellant on the basis of uncorroborated evidence;

[e] That the trial court erred in both law and fact by placing heavy reliance on the Prosecution case in total disregard of the evidence adduced by the Appellant;

[f] That the trial court erred in both law and fact by failing to supply the Appellant with copies of the witness statements and hence prejudiced hi right to a fair hearing.

6. The appeal was urged on behalf of the Appellant by way of written submissions which were filed herein by Mr. Oundo, Advocate, on 13 June 2019,thereby superseding the written submissions earlier filed herein by the Appellant. The submissions were highlighted by Mr. Oundo on 19 September 2019. Counsel fashioned his submissions on the basis of the 6 Grounds of Appeal. His arguments centred on the contention by the Appellant that penetration did not happen; and therefore that the offence laid in the 1st substantive count was not proved beyond reasonable doubt. Counsel further faulted the trial magistrate for failing to inquire why the doctor who examined the complainants was not called before admitting the evidence of Dr. Eunice Janetin her stead. In his view, this was a contravention of Section 80 of the Evidence Act.He further argued that, as the hymen of PW1, (the 1st complainant herein) was found intact, there was no basis for the doctor and the investigating officer to conclude that there was defilement. More so, because no samples were taken and no DNA profiling was done. Counsel relied onSections 107 and 109of theEvidence Act and David Wahome Wanjohi vs. Republic[2015] eKLR in support of his arguments.

7. In respect of the probative value of the evidence of the two minors, Counsel for the Appellant submitted that since the Appellant’s contention was that there was a grudge between him and the mother of the 1st complainant, corroboration was necessary. He relied on Section 124 of the Evidence Act and the cases of John Mutua Munyoki vs. Republic[2017] eKLR and Bugenya & Others vs. Uganda [1972] EACA 549. Lastly, Counsel submitted that the Appellant was not accorded a fair trial from the standpoint of Article 50(2)(j) of the Constitution, in that he was never supplied with witness statements or documentary exhibits by the Prosecution to enable him prepare his defence. The cases of Thomas Patrick Gilbert Cholmondeley vs. Republic,Criminal Appeal No. 116 of 2007, and Simon Githaka Malombe vs. Republic, Criminal Appeal No. 314 of 2010, were cited in support of this argument. Thus, Counsel urged the Court to allow the appeal, quash the Appellant’s conviction and set aside the sentence imposed on him by the lower court.

8. Ms. Mokua,learned Counsel for the State, opposed the appeal and submitted that the case against the Appellant was proved by the prosecution beyond reasonable doubt by the 6 witnesses who testified before the trial court. Citing Section 2 of the Sexual Offences Act for the definition of penetration, she was of the view that penetration did not have to be complete; and that it was sufficient that the medical examination showed that the complainant had fresh hymenal tears and bruises. In the same vein, Ms. Mokua asserted that sexual assault was also proved in respect of PW2. And that Dr. Eunice was a competent witness as Dr. Yatich who filled the P3 Form was away for further studies at the time.

9. Thus, according to the Respondent, all the essential elements of the offences of defilement and sexual assault were proved beyond reasonable doubt; including the respective ages of the complainants and the identification of the Appellant as the culprit. She pointed out that, although corroboration, for purposes of Section 124 of the Evidence Act, was not necessary, the evidence of the two minors was amply corroborated. She concluded her submissions by stating that the Appellant was represented before the lower court by Counsel; and that at no time did the Appellant’s Advocate complain that he had not been supplied with the witness statements or documents. According to Ms. Mokua, the matter was being raised on appeal as an afterthought, granted that the prosecution witnesses were thoroughly cross-examined by the defence Counsel. She accordingly prayed for the dismissal of the appeal.

10. I have given careful consideration to the appeal. I have also taken into account the written and oral submissions made herein by the Appellant and Learned Counsel for the State. This being a first appeal, I am mindful of the obligation to reconsider afresh the evidence adduced before the lower court and the need for this Court to come to its own conclusions thereon. In Okeno vs. Republic [1972] EA 32, the Court of Appeal for East Africa had the following to say in this connection:

"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...It is not the function of a 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 draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..."

11. In her evidence before the lower court, the 1st complainant, PW1, stated that she was then a class 6 pupil, aged 12 years; and that on 11 October 2015 at 2. 00 p.m., she was in the company of the 2nd complainant PW2; and that they were sitting outside the house of the Appellant, who was their neighbor. She told the lower court that the Appellant then approached them and invited them to his house to watch a movie. PW1 further stated that they agreed and went with the Appellant to his house where he showed them a pornographic movie on his phone. That the Appellant then started touching PW2 inappropriately before luring the girls into his bedroom by asking them if they had seen peanut butter.

12. It was further the evidence of PW1 that, once in the bedroom and in the presence of PW2, the Appellant got hold of her, placed her on the bed and proceeded to undress her; and that he then tried to insert his penis in her vagina but could not achieve penetration; and that PW2 then got hold of her and they went out of the bedroom. PW1further stated that when her father came to know of the incident, he caused the Appellant to be arrested and taken to the police station; adding that before his arrest, the Appellant had gone to their house to ask for forgiveness. She also mentioned that the Appellant had given them money, Kshs. 100/= to her and Kshs. 50/= to PW2, to buy their silence over the incident. She confirmed that she was taken to Moi Teaching and Referral Hospital for examination and treatment.

13. PW2’s testimony was that she was then aged 11 years old, and was in class 5. She likewise testified that she knew the Appellant before as a neighbour; and that they were seated outside his house with PW1 when the Appellant invited them to his house to watch a movie. She added that they obliged and that the Appellant showed them a pornographic movie and started touching her in her private parts. PW2 further testified that the Appellant lured them into his bedroom by means of a jar of peanut butter. He then got hold of PW1 and began to defile her; and that he gave them money and instructed them not to tell anybody. She likewise confirmed that matter was reported to the police and that she was taken to Moi Teaching and Referral Hospital for examination.

14. PW1’s aunt, LA., testified as PW3 and told the lower court that she had lived with PW1 from her infancy. She confirmed that PW1 was 12 years old at the time of the alleged offence; and that she got to know of the incident the following day on 12 October 2015, whereupon she took action by involving the mother of PW2and together they took the minors to Huruma Sub-District Hospital for medication; after which they reported the matter to Baharini Police Station. At the police station they were issued with P3 Forms and referred to Moi Teaching and Referral Hospital for examination. PW3further told the lower court that thereafter, the Appellant visited their house and was beaten and arrested by members of the public before being handed over to the police station.

15. The testimony of PW4, the step-mother of PW2, was that the minor was 12 years old as at 18 July 2016 when she testified. She relied on an Age Assessment Report that was prepared in respect of PW2 and confirmed that the Appellant was their neighbour. She further stated that she was in her house on 12 October 2015 when she heard some commotion in the house of PW3, who was also her neighbour. She went to check what the matter was and got to learn that that the Appellant had defiled the two minors, PW1andPW2, the previous day; and that he had given them Kshs. 100/= and Kshs. 50/=, respectively, to silence them in addition to threatening them if they reported the incident to anybody. PW4 concluded her evidence by stating that they took the minors to Moi Teaching and Referral Hospital for treatment and thereafter reported the incident to the police at Baharini Police Station and were issued with P3 Forms which were duly filled. She denied that she had a grudge with the Appellant prior to the incident.

16. Dr. Eunice Janet (PW5) of Moi Teaching and Referral Hospital was called to testify on behalf of Dr. Yatich, who examined the minors and filled their P3 Forms. She explained that Dr. Yatich was unavailable as she had since left their facility for further studies. She told the lower court that upon examination by Dr. Yatich, PW1 was found with fresh hymenal tears at positions 3. 00 o’clock and 9. 00 o’clock; and that she had bruises on her hymen. The doctor concluded that she had been defiled. In respect of PW2, who was also examined by Dr. Yatich on 14 October 2015, though her hymen was intact, she had a bruise on the labia and redness on the genitalia. Thus, the doctor confirmed that there was an act of sexual assault.

17. The last prosecution witness was the investigating officer, PW6. He told the lower court that he was on duty when the two minors, PW1 and PW2, were taken to the station on allegations that they had been defiled and sexually assaulted on 11 October 2015 by a neighbour. He booked the report and issued the minors with P3 Forms. He also received a jar of peanut butter which the neighbour, who was identified to be the Appellant herein, used to lure the children to his bedroom. He produced it as the Prosecution’s Exhibit No. 4 before the lower court. He added that the Appellant was taken to the police station by members of the public.

18. In his sworn statement of defence, the Appellant confirmed that he was residing in the same neighbourhood as the PW3 and PW4, the guardians of the two minors herein. He further confirmed that he interacted with the children on 11 October 2015. However, his version was that he found the minors stealing his peanut butter and jam; and that he pushed them out, locked his door and went to work. He further contended that it was not until 14 October 2015 when he received a call from a person who identified himself as the father of one of the minors, asking him to see him for a discussion. The Appellant added that he then asked for permission and went to see the man; but that on entering the gate, the man, after confirming his identify, started slapping him and beating him in concert with another person. They then took him to Baharini Police Station on allegations that he had defiled the two minors.

19. The Appellant further told the lower court that he had a medical condition at the time and had been fitted with an artificial bladder; and therefore that he was not in a position to engage in sex. He also told the lower court that on 28 January 2015, PW1’s mother, who was PW3 before the lower court, had asked him for a loan of Kshs. 5,000/= and that he had declined and insisted that he could only lend her money in the presence of and with the express consent of her husband. That since PW3 was unhappy with his response, she threatened him saying that one day his job would end. He therefore posited that the complaint against him was actuated by malice. He also mentioned that he ended up losing his job as a result of this case as predicted by PW3. He produced his Certificate of Service as Defence Exhibit No. 1.

20. Thus, the Appellant denied having showed the minors a pornographic movie as was alleged by them. He likewise denied that he threatened the minors or that he went to the house of the guardians of PW1 to apologize as alleged by PW1 and PW3.

21. It was on the basis of the foregoing evidence that the learned trial magistrate correctly framed the issues for determination in her Judgment at page 40 of the Record of Appeal. She was satisfied that all the ingredients of the offences of defilement and sexual assault had been proved beyond reasonable doubt. She accordingly found the Appellant guilty thereof and convicted him of the two main counts of defilement and sexual assault.

22. The first substantive count of defilement was laid under Section 8(1) as read with Section 8(2) of the Sexual Offences Act. Section 8 of the Act stipulates that:

(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

(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.

(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.

23. Accordingly, it was incumbent upon the Prosecution to prove the following essential ingredients:

[a] That the 1st Complainant, PW1, was a child for purposes of Section 8(3) of the Sexual Offences Act;

[b] That there was penetration of the complainant's genitalia;

[c] That the penetration was perpetrated by the Appellant.

[a]On the age of the Complainant:

24. It is manifest, from a reading of the provisions of Section 8 of the Sexual Offences Act,that the age of a complainant is an essential ingredient that must be proved beyond reasonable doubt. In High Court Criminal Appeal No. 34'B' of 2010: John Otieno Obwar vs. Republic, Hon. Makhandia, J. (as he then was) observed that:

"Defilement is a strict offence whose sentence upon conviction is staggered depending on the age of the victim. The younger the victim, the stiffer the sentence. Accordingly it is important that the age of the victim to be proved by credible evidence..."

25. Similarly, in Kaingu Kasomo vs. Republic Criminal Appeal No. 504of 2010 the Court of Appeal reiterated this point thus:

“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.

26. Thus, inRule 4 of the Sexual Offences Rules of Court Rules it is recognized that:

"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."

27. In this case, there is uncontroverted evidence on record to show that the minor, for purposes of the 1st substantive count was aged 12 years and therefore a minor for the specific purposes of Section 8(3) of the Sexual Offences Act. PW1gave uncontroverted evidence that she was then in class 6 at [particulars withheld] Primary School.That evidence was corroborated by the evidence of PW3; and indeed, the Appellant conceded that the two complainants were minors at the material time. In recognition of this, the trial court conducted voir dire as is required by law, before admitting their evidence.

[b] On Penetration of the 1st Complainant:

28. The minor told the lower court that she was defiled on the 11 October 2015 in the house of the Appellant; and that the incident took place in the presence of PW2. When she was examined by Dr. Yatich on 14 October 2015, PW1 was found with fresh hymenal tears at positions 3 o’clock and 9 o’clock. Hence, the trial court cannot be faulted for the finding that there was cogent proof that the complainant had been subjected to penetration of her genital organ for purposes of Section 8(3) of the Sexual Offences Act.I note that, in his written and oral submissions, Counsel for the Appellant took issue with the evidence adduced byPW1to the effect that the Appellant“…tried to penetrate but it did not go in…”Thus, it was the submission of Counsel that since there was no penetration, the offence charged in the first substantive charge could not be said to have been proved beyond reasonable doubt.

29. It is instructive to note, however, that for purposes of the Sexual Offences Act, penetration is defined in Section 2 to mean:

“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”

It suffices therefore that the Appellant “tried to penetrate” the genital organ of PW1. Accordingly, the contention of Counsel that the Prosecution needed to prove complete penetration is untenable.

[c] On whether the penetration of the 1st Complainant wasperpetrated by the Appellant:

30. On whether the partial penetration of PW1 was perpetrated by the Appellant, there is no dispute that the Appellant was well known to the two complainants, he being a neighbour. He Appellant conceded that the two minors were in his house on the date and time in question. Thus, given the consistent accounts given by PW1 as well as PW2 who witnessed the incident, the trial court cannot be faulted for believing the minors. It is noteworthy that she took the Appellant’s defence into account before coming to the conclusion that she arrived at, and therefore complied well with the provisions of Section 169 of the Criminal Procedure Code.

31. Though Counsel for the Appellant made elaborate submissions, relying on Section 124 of the Evidence Act, to the effect that the trial magistrate erred by relying on uncorroborated evidence of minors, these submissions come to nought. Section provides that:

“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him…”

32. Then there is the proviso thereto, wherein it is stipulated that:

“Provided that where in a criminal case involving 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.”

33. In her Judgment, the trial magistrate was convinced that the minors were telling the truth. Nevertheless, the trial court looked for and found corroboration of the evidence of the two minors in the evidence of the doctor; which evidence demonstrates that PW1 was found with fresh hymenal tears and bruises in her genitalia. I am therefore satisfied that the Appellant’s conviction in respect of the 1st substantive count of defilement was based on sound evidence; and that that evidence squarely placed the Appellant at the scene of that crime.

34. Count II, in which the Appellant is alleged to have used his fingers to sexually assault the 2nd complainant (PW2 herein), was laid under Section 5(1)(a)(i) as read with (2) of the Sexual Offences Act. That provisions states that:

(1) Any person who unlawfully—

(a) Penetrates the genital organs of another person with

(i) any part of the body of another or that person;

…

is guilty of an offence termed sexual assault.

2. A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.

35. In support of that charge both PW1 and PW2 testified that after invited them to his house, the Appellant showed them a pornographic movie and in the process began inappropriately touching PW2 in her private parts. It is significant that in the doctor’s finding, PW2had a bruise on the labia and redness on her genitalia, which in her opinion pointed to sexual assault. Thus, for similar reasons as given herein above for Count I, there was sufficient evidence to warrant the Appellant’s conviction on Count II.

36. Counsel for the Appellant also raised the following issues for the Court’s consideration, the first of which was the failure by the Prosecution to call an essential witness.In this respect,Counsel referred to the evidence of the investigating officer to the effect that the Appellant was taken to the police station in a taxi by members of the public. He accordingly submitted that the Prosecution was under obligation to call the taxi driver as a witness, positing that any person who takes someone to the police station for allegedly committing a crime must record a statement explaining the reason for arrest. He relied on the case of Bugenya and Others vs. Uganda[1972] EACA 549 for the holding that if an essential witness is not called for the just decision of the court then the court is entitled under the general rules of evidence to draw an inference that the evidence of that witness, had he been called, would have tended to be adverse to the prosecution’s case. It is noted however that PW6 did explain the circumstances under which the Appellant was handed over to the police and charged. That, in my view was sufficient and therefore, failure to call the taxi driver was not fatal to the prosecution case.

37. Indeed, Section 143 of the Evidence Act, Chapter 80 of the Laws of Kenya, recognizes that:

"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact."

Accordingly, in Keter vs. Republic [2007] 1 EA 135, it was held, inter alia, that:

“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”

38. I take the view, therefore, that the Prosecution is obliged to only avail such witnesses as are sufficient to establish the charge beyond reasonable doubt, a point aptly underscored by the Court of Appeal in the case of Daniel Muhia Gicheru vs. Republic Criminal Appeal No. 90 of 2007 (UR) as hereunder:

“The often-trodden principle of law is that the prosecution is obliged to prove its case against an accused person beyond any reasonable doubt. How many witnesses is it expected to call to satisfy that burden? In BUKENYA AND OTHERS V.UGANDA [1972] EA 349 the Court of Appeal for Eastern Africa held that the prosecution has the discretion to decide as to who are the material witnesses.

[39]In the premises, I find no merit in the argument that the Prosecution’s failure to call the taxi driver who took the Appellant to the police station was detrimental to its case.

40. Counsel for the Appellant also submitted that the evidence of the Prosecution was marred with contradictions and inconsistencies and therefore ought not to have been relied on by the lower court. For instance, Counsel pointed out that, though the evidence of PW5 was that PW1 was found with fresh hymenal tears and bruises, PW1, PW3 and PW6 testified that the medical examination took place on 14 October 2015, about 2 or 3 days later. He also pointed out that although the doctor found PW2 with a bruise on her labia and redness on her genitalia, PW2 herself said that she was not injured in any way and that she was only asked questions at the hospital and that no tests were ran on her because she had not been defiled.

41. However, having considered those alleged contradictions, I am far from persuaded that they are of such a nature as to vitiate the conviction recorded by the lower court. As was observed by the Court of Appeal in Joseph Maina Mwangi –Vs- Republic Criminal Appeal No. 73 of 1992:

“An appellate court in considering those discrepancies must be guided by the wording of section 382 Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence”.

42. Similarly, in Philip Nzaka Watu vs. R [2016] eKLR the Court of Appeal held that:

“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

43. It was also the contention of the Appellant that Hon. Kigen, as the succeeding magistrate, did not comply with the provisions ofSection 200(3)of theCriminal Procedure Code;and therefore that this is one pertinent reason why his appeal should be allowed. That provision states that:

Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.

44. I have perused the record of the lower court, and it does confirm that the provisions of Section 200 of the Criminal Procedure Code were indeed complied with. This is clear at page 25 of the Record of Appeal. Although there is no specific indication that Subsection (3) of Section 200, Criminal Procedure Code was complied with, the record shows that the accused was eager and ready to proceed with the matter from where it had reached and that, though both PW1 and PW2 were in fact recalled and availed for further cross-examination by the defence; the accused had no further questions for PW1 and only one question for PW2. I am accordingly satisfied that the trial court complied with the provisions of Section 200(3) of the Criminal Procedure Code and that the complaint by the Appellant in that regard is unwarranted.

45. The last issue raised by Counsel for the Appellant has to do with their contention that the Appellant’s rights under Article 50(2)(j) of the Constitutionwere infringed, in that the Appellant was not supplied with copies of witness statements or documents to enable him prepare well for his defence. Counsel relied on the Cholmondeley Case (supra) wherein it was held that:

“The prosecution’s duty at common law to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution were under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Pursuant to that duty the prosecution were required to make available the records of all relevant experiments and tests carried out by expert witnesses.”

46. Although the record does not show that any specific order was made for disclosure, Counsel for the State was categorical that there was compliance, as otherwise the Defence Counsel would have raised a complaint with the trial court; which was not done. She urged the Court to find that the matter is being raised belatedly before this Court as an afterthought and therefore ought to be dismissed. Having considered the matter, I take the view that, since the issue of disclosure is a constitutional imperative, a trial court is under obligation to not only comply but to also make a record of such compliance in the proceedings. Nevertheless, I am persuaded that there was compliance; granted that the witnesses were subjected to thorough cross-examination by the defence; an indication of preparedness.

47. In the result, I am satisfied that the Appellant’s conviction on both substantive counts of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, and sexual assault contrary to Section 5(1) of the Sexual Offences Act, was premised on sound evidence. Accordingly, I would dismiss the appeal on conviction. As for the sentence, following the decision of the Supreme Court in Francis Karioko Muruatetu vs. Republic [2017] eKLR, the Court of Appeal reconsidered the constitutionality of the mandatory nature of the life sentence and by extension minimum offences under the Sexual Offences Act, and held thus in Jared Koita Injiri vs. Republic [2019] eKLR:

Arising from the decision inFrancis Karioko Muruatetu & Anothervs Republic, SC Pet. No. 16 of 2015where the Supreme Court held that the mandatory death sentence prescribed for the offence of murder bysection 204of thePenal Codewas unconstitutional. The Court took the view that;

“Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the Courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right.”

In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentences stipulated bysection 8 (1)of theSexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis."

48. In the premises, the appellant is entitled to a review of the sentence based on the circumstances of the case and any mitigating circumstances evinced by the record. Accordingly, the sentence of meted for Count I is hereby reduced to 10 years’ imprisonment, to be reckoned from the date the Appellant was sentenced by the lower court. The sentence for Count II is however warranted and is upheld.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 4TH DAY OF DECEMBER, 2019

OLGA SEWE

JUDGE