[2022] KEHC 3323 (KLR)

Republic v JMK (Criminal Appeal E015 of 2021) [2022] KEHC 3323 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3323 (KLR)

Republic of Kenya

In the High Court at Kitui

Criminal Appeal E015 of 2021

RK Limo, J

July 5, 2022

Between

Republic

Appellant

and

JMK

Respondent

(Being an appeal by the State through the Office of the Director of Public Prosecution appealing against the acquittal of the Respondent herein in Kitui CM’s Court Cr. Case No. 1206 of 2015 that was delivered on 16th of June 2021. )

Judgment

1. In this appeal, the State through the Office of the Director of Public Prosecution is appealing against the acquittal of the Respondent herein in Kitui CM’s Court Criminal Case No. 1206 of 2015. In that case the Respondent was charged with two counts of causing grievous harm contrary to Section 234 of the Penal Code.

2. The particulars of count 1 as per the charge sheet presented to the trial court are that on the 16th September, 2015 at about 10PM in Kitui County, the Respondent did grievous harm to VMM.

3. In Count II, the particulars were that on the same date and place the Respondent did grievous harm to LM.

4. The complainant later withdrew her complaint with respect to the 1st Count. The proceedings at the trial court was in respect to the 2nd count.

5. The prosecution at the trial called six witnesses and the defence called 5 witnesses.

6. After evaluating the evidence tendered the trial court found that the prosecution had not proved its case against the respondent and acquitted him of the charge. The State felt aggrieved and lodged this appeal. Before I consider the grounds of the appeal herein I will set out briefly the evidence tendered by both the prosecution and the respondent.

7. VMM (PW1) the main prosecution witness testified that she had been in a relationship with the Respondent since 2010 when she was a form two student. She testified that she had a good relationship with the Respondent, who was a priest and that the relationship deteriorated after she fell pregnant. She testified that upon falling pregnant, she went to Nyumbani Children’s Home where the priest worked but he reportedly chased her but she refused to leave and instead went to see the Bishop.

8. The witness recalled that on the date of the incident 16. 11. 2016, the respondent upon learning from her the previous day that her daughter was unwell asked her to take the child to him, so that he could take her for treatment. She testified that she arrived at 12 noon at Holy Family Kabati Parish where the Priest resided and where she was to meet the Respondent. She stated that she was notified by the watchman that the priest (Respondent) herein had left the parish early that day and had to wait upto 3PM upon which she called the Respondent who informed her that he had left for his home at Tulia and that she should proceed there.

9. She testified that she proceeded to the home of the Respondent and found the Respondent’s mother alone at around 8PM who told her to leave the homestead as the Respondent was absent. The witness stated that with her child crying she decided to go to Tulia Market to look for accommodation and that on the way she went to a neighbour of the respondent for shelter. She added that the neighbour agreed to offer her and her child a place to sleep but shortly, the Respondent’s mother reportedly arrived and inquired from the neighbour why she was offering accommodation to her yet the priest (Respondent) had stated that he did not want her to sleep there. The witness stated that the Respondent’s mother promised to give her fare to go back to Kabati and that the Respondent’s sister also called and stated that she should not be accommodated there because she was scandalizing the priest.

10. The witness testified that the neighbour accompanied her to the home of the Respondent where the respondent’s mother gave her Kshs. 500 for transport back to Kabati and that the neighbour escorted her to the stage at around 10PM. She testified that when they reached the stage, she saw someone running to where they were with a rungu and a scarf on his head. The witness stated that the person lifted the rungu up and hit her and also hit the child as the lady she was with took off. The witness stated that her child vomited blood as a result and when she looked up she recognized the respondent and asked him;“Father why do you want to kill me?’’

11. The witness stated that the respondent responded that it was because she was scandalizing him and that he repeatedly hit the child with the club and continued beating her as well adding that the child was then 3 years old. According to her she screamed as she was being beaten until she lost consciousness. She testified that no one came to her rescue and that after a while she regained consciousness and stood up and hid in a bush until 4 am when she heard some people talking. She stated that she had left her baby at the scene and that when he approached the scene, she found the people holding the baby and that after explaining to them what had happened, they told her to accompany them to Kabati Police Station to report the matter.

12. The witness further testified after reporting the incident, they were taken to hospital where she was referred to Machakos hospital and thereafter Kenyatta National Hospital.

13. The mother further testified that DNA analysis was carried out and it showed that the Respondent was the father of the child adding that the child was hit on the forehead, nose and ears. She stated that the nose was injured and that blood oozed from both the ears.

14. The witness further, upon recall at the request of the respondent on 6th December 2017, that she was interviewed by the media while still admitted at Muthale hospital on the 17th November 2017 and denied giving them information as captured by the headline of one of the daily newspaper stating:-‘‘Catholic Priest boyfriend had hired a gang to kill her.’’ She denied the suggestion that she had reported to the media that a goon had been hired.

15. KM (PW2) mother stated that she was informed of the incident on 17th November 2016 via a call from her husband and the police. She stated that she was asked to go and see PW1 and the complainant in hospital and when she did she observed that the complainant was bleeding from the ears, her face was swollen and she had sustained a broken nose. PW1 was also injured and had a fracture on the head. She also stated that she was not aware that her daughter had a relationship with the Respondent though she was aware that the Respondent had impregnated her.

16. AP Jeniffer Kasoa (PW3) an AP Officer stationed at Tulia AP Post testified that a report was made by a boda boda rider on 17th November 2015 at around 3. 45am about a child who had been left lying on the road between Muthale and Tulia Market. The officer stated that he went to the scene together with her colleague and found PW1 in the company of some members of the public who were interrogating her. She noted injuries on PW1’s hands while the child (complainant) appeared to have bled a lot due to injuries on the head. She stated that the two were rushed to Muthale Mission Hospital for treatment, and that she also estimated the age of the Complainant (child) to be 3-4 years.

17. Charles Mwendwa (PW4) the boda boda rider informed the court that he saw a child lying on the road on his way to pick a customer on the material day at around 3. 00am. He stated that he reported the matter to the police and accompanied them to the scene where they found PW1 in the company of some members of the public explaining to them what had transpired.

18. APC Anthony Mutua (PW5) told the trial court that he was at Tulia Police Post when PW4 reported having seen a baby lying on the road at around 3. 45 am and that. That he accompanied his colleague, PW3 to the scene where they found the complainant who was badly hurt on the road and PW1 in a shamba and that she was also badly hurt. The witness stated that PW1 informed them that she had been attacked by the Respondent who was reported to be the father of the baby.

19. Kennedy Kariuki (PW5), a Clinical Officer Matuga Health Centre formerly known as Nzau Health Centre, testified that he examined the Complainant and filed the P3 Form and that the child had swelling on the eyes and bleeding on both ears, which he opined was a sign of trauma of the brain. He further noted that the victim had a cut on the forehead and that he classified the injuries as grievous because injuries on the brain can lead to death and that a blunt object was used to inflict the injuries. He further added that C.T Scan showed signs of bleeding in the brain. He tendered the P3 as P Ex1, treatment Chit as P. Ex 2 and the age assessment indicating tendered as that the child was 4 years old was P Ex3. The medical officer clarified that the medical test was done at Kenyatta Hospital where the victim also received treatment by one Dr. Maingi who was not known to the witness. The witness further testified that the child suffered from internal bleeding and severe brain injury and that ‘‘it was a miracle that she survived’’ due to brain trauma and bleeding in the brain.

20. PC Joshua Obade (PW6) a Police Officer based at Kabati Police Station testified that he took over the investigation file from his colleague Police Woman Simiyu who was the investigating Officer. He confirmed that the incident of the offence committed against both the mother (PW1) and the child was reported on 16th November, 2015. The Officer gave a narrative of the incident as told by the witnesses. He testified that the Complainant and her mother was attacked by the Respondent and the child was found on 17th November 2015 lying on the road by a boda boda person and that the mother was found on the trench nearby. He testified that at the scene a blood stained jacket was found which he tendered as P Ex6, a syringe P Ex. 7 and hairband P Ex 8. He further testified that he had seen a newspaper cutting shown to him by the defence Counsel which indicated that the Complainant mother had reported that the respondent had hired thugs to kill her but according to him the Complainant’s mother saw the Respondent well and identified him as the person who attacked her and her child.

21. JMK (DW1) the Respondent in his sworn statement denied assaulting the complainant at 10pm on the material day. He stated that he was at the parish premises which he entered at 7. 30pm on the material day and did not leave. The Respondent accused PW1 of lying to the court. He stated that PW1 had given an interview to the media which stated that she was attacked by thugs while he was not a thug. He also stated that PW1 told the media that she had been attacked by hired goons. He relied on newspaper excerpts produced as defence exhibits 1 and 2. The witness further told the court that PW1 had sent some text messages to one Rose Margaret which were later produced in court.

22. Joseph Nzomo Kyuti (DW2) The witness told the court that he was a watchman manning Kabati Parish premises. He stated that the Respondent was a priest who stayed at the parish at the material time. He stated that he was on duty on the material day and that the Respondent got into the premises at 7. 00pm and that he did not go out until the following day. He told the trial court that the parish premises were fenced with high fence made of barbed wire, chain link as well as euphorbia plant.

23. Rose Margaret (DW3) told the court that PW1 sent her text messages which indicated that the Respondent was not the father of her child, further that the Respondent did not attack her.

24. Eric Nzioka (DW4) informed the court that he was a business man based in Kitui town. That he operated an electronic shop and offered printing services. That he got a customer whose phone number was xxxx who needed messages sent to her through xxxx printed. He produced a certificate in reference to the printed text messages marked as Defence Exhibit 5.

25. Father Patrick Mwove (DW5) told the court that he knew the Respondent and that the two were priests based in Kabati parish. He stated that he resided in the parish residence and in the same house together with the Respondent. He stated that he arrived at the parish on the material day at around 8. 00pm where he found the Respondent and that the two went to sleep at around 10. 00pm. He stated that the residence was manned by a watchman. He also stated that he could not tell whether the accused left the premises as the two slept in separate rooms.

26. The trial court upon evaluation of the evidence tendered found that the prosecution’s case had fallen short and that it was unsafe to convict the Respondent based on the evidence tendered mainly on the basis that the newspaper report had quoted the Complainant as saying that she was attacked by goons/thugs hired by the Respondent and not the Respondent himself. The trial court on that basis acquitted the Respondent.

27. The State through the Office of the Director of Public Prosecution as observed above felt aggrieved by the finding of the trial court and filed this appeal and raised the following grounds in its petition namely: -i.That the Learned Magistrate erred in law and in fact in failing to convict the Respondent yet the prosecution proved its case beyond reasonable doubtii.That the Learned Magistrate erred in law and in fact in holding that the prosecution did not proof its case beyond reasonable doubt yet all the elements of grievous harm were provediii.That the Learned Trial Magistrate erred in law by faulting the nature and/or evidence of identification and/or recognition which was clear and water tightiv.That the Learned Trial Magistrate erred in law and in fact by raising the presumptions on the nature of the evidence which was never raised in courtv.That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that the evidence given by PW1 was trustworthy, well corroborated and that there was no need for forensic investigations to prove the offencevi.That the Learned Trial Magistrate erred in holding that PW1’s evidence was incredible and unreliable yet given the circumstances in which she was, the same ought to have been looked intovii.That the Learned Trial Magistrate erred in law and in fact by failing to determine and appreciate that the alibi defence raised by the Respondent was an afterthought because it was not raised at an early stage.viii.That the Learned Trial Magistrate erred in law and in fact in to holding that the Defence evidence was sound and valid yet the same was not overwhelming vis a vis the Appellant’s case.ix.That the Learned Trial Magistrate erred in law and in fact in failing to observe that the acquittal of the Respondent was unsafe and prejudiced the Appellant’s casex.That the Learned Trial Magistrate erred in law and in fact by failing to appreciate the difficulties, challenges and resistance which the prosecution was subjected to, to secure its witnesses to give evidencexi.That the Learned Trial Magistrate erred in law and in fact by finding that the media interview and contents of newspapers to wit, “People Daily” and “Nairobi News” were of great evidential value contrary to the provisions of the Evidence Act Cap 80 Laws of Kenya.

28. In its written submissions, the state contends that it proved its case and points out that it was able to show that the Complainant sustained grievous harm through witness testimony as well as medical evidence.

29. On identification of the Respondent as the perpetrator of the crime, the Appellant submits that the Respondent was positively identified by PW1. The State submits that there were other eye witnesses but they encountered difficulties in having them come to court to testify. They have submitted that the Respondent was recognized by PW1 because the two had been involved romantically since the year 2010. They also aver that the Respondent and PW1 exchanged conversation during the attack hence PW1 was able to recognize the Respondent’s voice. They have asked this court to be guided by Court of Appeal decision in Choge versus Republic (1985) eKLR which was an appeal arising from murder trial where the court restated that there are circumstances were voice identification carriers as much weight as visual identification.

30. With regards to the newspaper cuttings, the State submit that the same were inadmissible and ought to have been taken as hearsay and could not add any probative value to the defence case.

31. The State further submits that PW1 told the court that she did not tell reporters that she was attacked by thugs. The State has relied on the Court of Appeal’s decision in Independent Electoral & Boundaries Commission(IEBC) vs National Super Alliance (NASA) & 6 Others where the court found that although Section 86(1) (b) of the Evidence Act makes newspaper reports admissible in evidence a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.

32. On the defence of alibi put forth by the Respondent, the state faults the trial court for relying on the same stating that it was only raised during the defence case and that the evidence was unreliable because DW2 and DW5 called by the defence did not state that they were specifically with the Respondent between 8. 00pm and 10. 00 pm on the material day.

33. The Respondent has opposed this appeal vide written submissions by the Learned Counsel B.M. Musyoki & Co. Advocates dated 26th April 2022.

34. On the question of recognition and identification, the Respondent through counsel submits that PW1 could not have possibly identified the Respondent positively as conditions i.e. light were not favourable for identification/recognition. The Respondent has raised issues with the Appellant’s case to the extent that the neighbour who accompanied PW1 was not called to testify and that there were no efforts indicated to the court made to locate the neighbour

35. The Respondent has further faulted the charge sheet stating that it indicated that the assault took place in Muthale while evidence tabled in court was to the effect that the assault took place in Tulia.

36. On the newspaper cuttings, the Respondent submits that the trial court indicated that it did not give weight to the same as well the text messages.

37. On the defence of alibi, the Respondent submits that the same was tabled at the beginning stages of the prosecution’s case when counsel for the Respondent put questions to PW1 which led her to indicate that the Respondent attacked her in Tulia and not at Kabati. The Respondent has submitted that it was the Prosecution’s duty to disapprove the defence of alibi.

Determination 38. This is a first appeal and that being the case, the duty of this court is to re-evaluate the evidence adduced in the trial with a view to arriving at its own conclusion taking into consideration the fact that it did not have the benefit of seeing witnesses testify first hand unlike the trial court.

39. The Respondent herein was charged with a serious offence of causing grievous harm Contrary to Section 234 of the Penal Code. The sanction stipulated under that Section reflects the seriousness of the offence. The evidence tendered and in particular the medical evidence tendered shows that, that was really the case. The victim of the violent/senseless attack suffered such serious injuries that the medical officer who examined her (PW5) candidly remarked at the trial that ‘‘she had severe brain injury it’s a miracle that she survived. She bled in her brains……...’’ When a Medical Officer uses such a noun as ‘‘miracle’’ then you can get the magnitude of the medical state.

40. This court has gone through the evidence tendered by the prosecution and indeed the entire proceedings and what emerges is what cannot possibly be ignored. There was a miscarriage of justice particularly to the victim.

41. This court does not wish to go deep into analyzing the evidence tendered for reasons that will shortly be apparent and which is the interest of justice to all the parties.

42. The Respondent herein was charged with two Counts of causing grievous harm to VMM (PW1) and her child LM contrary to Section 234 of Penal Code. The Respondent denied the charge. The matter was fixed for hearing on 25th April 2016. When the matter came up for hearing on that date, the Complainant stated that she was withdrawing her Complaint and that of the child and the basis given was that the Respondent was going to take care of the child because he was touted as the father of the child. The mother stated that she had forgiven the Respondent and that they would discuss the question of child support with the Children’s Officer.

43. The trial court allowed the withdrawal of Count 1, that of causing grievous harm to the mother (PW1) but the offence in Count II remained and the trial correctly directed to proceed because the matter involved a child.

44. It apparent from the proceedings that attempts were made to halt the criminal proceedings against the Respondent and when the matter proceeded to full trial, it is apparent that the prosecution ran into trouble with some witnesses getting reluctant to come forward to testify because as the Officer Commanding Station Kabati stated on oath on 25. 10. 2018, that the witnesses were ‘‘being intimidated by the accused person’’. The Officer Commanding Station was directed by the trial to investigate the claims and take appropriate action but that was the end of the matter because no action was taken. On 6th May 2019, a new trial magistrate took over the matter (after the initial trial magistrate Hon. Murage was transferred). The prosecution was unable to avail more witnesses because of claims of witnesses’ interferences. The trial court issued stern warning over the same but it is apparent that the prosecution was unable to avail further witnesses as the only witness called thereafter was the Investigation Officer PC Joshua Obade upon which the prosecution closed its case. There was no action taken if at all there was evidence of witness interferences.

45. The prosecution’s closed its case but there is a document marked as MFI 3 which was a DNA report which PW1 stated that it confirmed that the Respondent was the father to the victim. This is what PW1 stated;“DNA was done. Accused was confirmed to be the father…… JMK is the accused. He is a Priest.’’

46. That DNA report, crucial as it was at the trial owing the circumstances surrounding the offence, was left out and with that the right of the victim to a fair trial in my view was left exposed and this was either by ineptitude by the prosecution or an inadvertence altogether. The victim of the offence played no part in that infraction but has found herself at wrong end of the stick. The trial could have perhaps stepped in to address the omission but it did not. In the midst of all these, this court finds that at the end of the day the victim got exposed to an unfair trial. The trial court ought to have done much more to ensure the victims right was protected.

47. The provisions of Article 50 in regard to right to a fair trial not only apply to an accused person as stipulated under Article 50(2) of the Constitution of Kenya but also the victim as stipulated under Article 50(9) of the Constitution of Kenya. That Act was passed to provide special protection for vulnerable victims.Parliament pursuant to Article 50(9) of the Constitution of Kenya enacted The Victim Protection Act, No. 17 of 2014. Section 13 of that Act provides that;“Where a victim is the Complainant in a Criminal Case, the Victim shall either in person or through an advocate be entitled to;a.Subject to the provisions of the Evidence Act (Cap 80), adduced evidence that has been left out…………..’’

48. This court find that the victim was a vulnerable victim and the case itself related to sexual and Gender Based Violence (SGBV). In such cases courts should be cautious in the manner it handles the case because of the vulnerability of the victim like it was apparent in this instance. The person connected with the perpetration of the crime was a respected person and highly placed in the society which may have placed him at an influential position in regard to some of the prosecution witnesses as compared to the victims.The Constitution of Kenya however, offers protection to all, irrespective of one’s social status.

49. I have looked at the proceedings and as I have highlighted above, there was a pattern that clearly indicated that there was some undue influence being exerted on the mother of the victim and other witnesses to somehow save the Respondent by derailing trial. The attempt by the mother to have charges withdrawn on account of the Respondent taking care of the minor and the reluctance of some witnesses to come and testify is a pointer to that fact.

50. There is also the issue of the charge sheet pointed by the Respondent which was whether Muthale was the same place as Tulia because the charge sheet talks of Tulia while the evidence tendered indicates that the offence took place in Muthale. In my view that defect would not have been fatal because it could have been cured by Section 382 of the Criminal Procedure Code because the matter in issue was whether the attack took place and whether the Respondent was the perpetrator.

51. This court has said enough to show that the only open option is to address both the rights of the Respondent and the victim is to order for a re-trial. That way, the prosecution will get a chance to properly tender DNA report marked as MFI 3. This court notes that the issue may not have been contested but under Section 13 of Witness Protection Act, the victim was entitled to have the evidence formally tendered in Evidence to enable the trial court make an informed decision having regard to all the surrounding circumstances.Having reached that conclusion, this court finds it just and fair not to delve on other grounds raised in this appeal with a view to ensuring that a fair trial is conducted where the Respondent will also have a chance to interrogate the evidence adduced.This court in sum, partly allows this appeal by setting aside the order of acquittal. In its place an order under Section 354 of the Criminal Procedure Code is hereby made for a retrial by a different court of competent jurisdiction possibly with a different prosecutor. For purposes of ensuring that the trial goes on smoothly and quickly, I will make the following additional orders for the interest of justice.i.The exhibits herein be secured immediately and handed safely to the Officer of the Director of Public Prosecution.ii.The victim and her mother be placed under witness protection unit forthwith until they testify in the trial court. This is because of the history of this matter. The complainant and her mother are therefore, referred to Witness and Victim Protection Agency under Witness Protection Act, 2006. The Office of the Director of Public Prosecution to liaise with the agency forthwith.iii.I will also direct that the original file be returned to the Lower Court before a duty court for further orders and retrial. The retrial to be given priority owing to the age of the matter and the interest of justice.

DATED, SIGNED AND DELIVERED AT KITUI THIS 5TH DAY OF JULY, 2022. HON. JUSTICE R. K. LIMOJUDGE