[2023] KEHC 23543 (KLR)

Simiyu v Republic (Criminal Appeal E063 of 2022) [2023] KEHC 23543 (KLR) (4 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23543 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E063 of 2022

REA Ougo, J

October 4, 2023

Between

Elly Omuse Simiyu

Appellant

and

Republic

Respondent

(Being an appeal from the acquittal of the accused by Hon. C. Wattimah SRM in Sirisia CR. No. 2 of 2020 vide ruling on 16th May, 2022)

Judgment

1. The respondent was charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006. The Particulars of the offence are that on December 27, 2019 at around 1800 hours at [particulars withheld] sub-county in Bungoma County, the respondent intentionally caused his penis to penetrate the vagina of INN a child aged 13 years.

2. The respondent faced an alternative count to the main one, of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars hereof being that on December 27, 2019 at around 1800 hours at [particulars withheld] sub-county in Bungoma County, the respondent intentionally and unlawfully touched the genital organs of INN a child of 13 years.

3. The respondent pleaded not guilty to the charges before the trial court and the case was scheduled for hearing on March 19, 2020 but it did not kick off. The matter was next on mention onJuly 15, 2020 and fixed for hearing on November 23, 2020. On November 23, 2020, the case did not proceed as the complainant was away. The hearing was adjourned to April 13, 2021 on which date the appellant informed the trial magistrate that he did not have any witnesses. The hearing of matter further adjourned to July 29, 2021 by reason that the trial magistrate was on away on leave. The matter was then fixed for hearing on 29th November 2021 but the trial magistrate was away on official duty and therefore the hearing was adjourned to March 14, 2022. On said date, the appellant was not ready to proceed as he did not have any witnesses as well as the police file.

4. The hearing was further adjourned to May 16, 2022 on which date the appellant did not have any witnesses and requested for another date. The trial magistrate denied the application for adjournment noting that the matter had been adjourned severally for lack of witnesses and there was no sufficient reason for further adjournment. The trial court acquitted the respondent under section 202 of the Criminal Procedure Code.

5. The appellant being dissatisfied with the orders of the trial court has filed a petition of appeal dated June 24, 2022 on grounds that:1. That the learned trial magistrate erred in law and fact in acquitting the respondent without according the complainant and her witnesses an opportunity to be heard.2. That the learned trial magistrate erred in law and fact in acquitting the respondent without proof that the complainant and her witnesses had been bonded to attend court and deliberately failed or refused to attend court.3. That the learned trial magistrate misdirected herself in law and fact when she misconstrued the legal requirements to be established pursuant to section 202 of the Criminal Procedure Codecap 75 laws of Kenya before she entertained an acquittal of the respondent under the section.4. That the learned trial magistrate erred in law and fact in failing to allow the prosecution’s application for an adjournment since the respondent had not opposed the said application for adjournment.5. That the learned trial magistrate failed in law and fact by critically failing to take into account the Covid-19 situation in the country had occasioned delay in the prosecution of several matters in court hence the previous non-attendance of witnesses was as a result of government policy at the time.6. The learned trial magistrate failed in law and fact by failing to summon the investigation officer to demonstrate whether or not he had bonded the witnesses and/or explain why the witnesses were not attending the court to testify.

6. The appellant prays that the acquittal of the respondent under section 202 of the Criminal Procedure Code in Sirisia Cr (S.O) No. 2 of 2020 on May 16, 2022 be quashed and set aside and the case against the respondent reinstated to be heard afresh by a different magistrate with competent jurisdiction.

7. The Appeal was canvased by way of written submissions. The Appellant submits that section 202 of the Criminal Procedure Code gives the court the discretion to dismiss a case, however, the trial magistrate was expected to exercise due diligence and reach a sensible decision. The court ought to have act judicially. The trial court in invoking section 202 of the Criminal Procedure Codeshould have been satisfied that the witnesses were bonded and deliberately failed to attend court. The trial court failed to enquire and be satisfied before erroneously invoking this section. In making such a decision, the court had to take into account the seriousness of the case, loss suffered by the complainant, the number of adjournments, whether the accused had been attending court and whether witnesses had failed to attend therefore before. The subordinates’ court decision to dismiss the suit under section 202 of the Criminal Procedure Codewas suo motto, hasty, arbitrary and unfair to the complainants. The court must always in all circumstances try to balance the rights of the witnesses, especially the complainant, and the accused. In the case of Fatehali Manji v Republic 1966 EA 343 the court held that a retrial will be ordered when the original trial was illegal or defective, however, each case must depend on its own facts and circumstances and an order for the retrial should only be made where the interest of justice requires it. The Appellant maintains that there is compelling evidence before the court therefore, it would be in the interest of justice to order for a retrial.

8. Theappellant also submitted that the case was previously adjourned thrice not on account of the absence of witnesses but the absence of the trial court, therefore the case should be reinstated, tried and determined on its merit. The case was commenced during covid-19 period and there were several challenges affecting court business hence the absence of witnesses on one occasion or the other should not be used to shut the door of justice to the victim of defilement. The court was also urged to consider the affidavit filed in Bungoma Criminal revision No. E141 of 2022 in which the victim’s mother stated that they were ferried to court on 16th May, 2022 in the Cheskaki police land cruiser to go and testify only to find that the case had already been dismissed. The witnesses were peasant farmers without means of transport to court and had to rely on the police vehicle to get to court for justice.

Analysis and Determination 9. The only issue before the court is whether the circumstances for the acquittal was as per section 202 of the Criminal Procedure Code and whether the trial magistrate abused its discretion. Section 202 provides as follows:“If, in a case which a subordinate court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the court under arrest, then, if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall thereupon acquit the accused, (emphasis court) unless for some reason it thinks it proper to adjourn the hearing of the case until some other date, upon such terms as it thinks fit, in which event it may, pending the adjourned hearing, either admit the accused to bail or remand him to prison, or take security for his appearance as the court thinks fit.”

10. The Court of appeal inReuben H Muli v Republic[1998] eKLR held that an acquittal under section 202 of the Criminal Procedure Code is a bar to any subsequent information or complaint for the same matters against the same accused person as provided for in section 218 of the Criminal Procedure Code.

11. The court inRepublic v Judith Achola Mulala [2019] eKLR considered the implications of section 202 and 206 of the Criminal Procedure Codeto criminal proceedings and stated:“12. My understanding is that section 202 applies to the situation where the matter is coming for hearing for the first time. In that case where the complainant fails to appear or to attend at that hearing then the court will be at liberty to either acquit the accused person or adjourn the hearing to another date.13. Section 206 on the other hand states as follows:“206. Non-appearance of parties after adjournment(1)If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs.…15. My understanding is that section 206 provides for what should happen after the matter is adjourned after the first hearing date, whether the case took off at that first hearing date or not. It would appear that there after consequences that follow non-appearance or non-attendance in court by the parties after the hearing is adjourned. For the accused person’s non-appearance, the court may decide to proceed with the hearing, the non-attendance notwithstanding. The provision is silent on this, but given the permissive language of the provision, it would appear that the court can also adjourn the matter once more. The practice is that the court would adjourn the matter and issue a warrant for the arrest of the accused person. Rarely do trial courts proceed to hear a matter under section 206 in the absence of the accused person. For the complainant, the consequence is that the charge could be dismissed. Again, the provision is discretionary. The court also has the option of simply adjourning the matter to another date.”

12. The court in Republic v Judith Achola Mulala (supra) also held that the complainant referred to in section 202 and 206 of the Criminal Procedure Code is the prosecutor, who stands for the Republic or state in criminal proceedings, and that proceedings are started, continued and terminated at the behest of the state through the prosecutor.

13. The record reveal that the prosecutor was present in court on the day the criminal proceedings were terminated. The prosecutor submits that it had challenges getting the witnesses to court due to covid-19 policies at the time. However, this reason was not offered to the trial magistrate and has now been raised by the prosecution in its submissions. They also referred to an affidavit filed in Bungoma Criminal revision No. E141 of 2022 but did not annex the said affidavit in the appeal and in any event, the trial court was not aware of the same. It is clear from the record that the prosecution had sought adjournments on three occasions on account of lack of witnesses without offering any explanation. 2 years had since lapsed yet the matter had not been heard. The prosecution on 16/05/2022 sought an adjournment and when the trial court declined their request, it only follows that the prosecution had to proceed with their case. Even in the absence of the victim, the prosecution could have led evidence from the investigating officer or any other witnesses other than the victim. However, the prosecution elected to close its case and left it to the determination of the trial magistrate. It did not adduce any evidence before the court. In my view, the trial court therefore ought to have acquitted the respondent on account of section 210 of the Criminal Procedure Code as opposed to section 202 of the Criminal Procedure Code. The prosecution closed its case without tendering any evidence. In Ronald Nyaga Kiura v Republic [2018] eKLR the court held that:“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person.”

14. The appellant failed to establish a prima faciecase and therefore the respondent acquittal cannot be faulted. In the end, I find that the appeal had no merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT BUNGOMA 4TH DAY OF OCTOBER 2023. R.E. OUGOJUDGEIn the presence of:Miss Omondi For the AppellantRespondent- AbsentWilkister C/A