[2022] KEHC 17116 (KLR)

SKC v Republic (Criminal Appeal 111 of 2019) [2022] KEHC 17116 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 17116 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 111 of 2019

AC Mrima, J

October 19, 2022

Between

SKC

Appellant

and

Republic

Respondent

(Appeal arising out of conviction and sentence of Hon. M.I.G. Moranga (Senior Principal Magistrate) in Kitale Chief Magistrate’s Court Criminal Case (S.O) No. 170 of 2018 delivered on 24th October, 2019)

Judgment

Introduction and Background: 1. The appellant herein, SKC, was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act.

2. The particulars of the offence were that on September 28, 2018 at [Particulars Withheld] farm within Trans-Nzoia county intentionally caused his penis to penetrate into the vagina of SK, a child aged 8 years old.

3. In the alternative, the appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and in the same place, the appellant intentionally caused his penis to touch the vagina of SK, a child aged eight 8 years old.

4. When the appellant was arraigned before the trial court, he pleaded not guilty to the charges. After a full trial, the appellant was convicted on the main charge and sentenced to life imprisonment.

The Appeal: 5. Aggrieved by the conviction and sentence, the appellant filed an appeal to this court.

6. He raised several grounds of appeal challenging his conviction and sentence.

7. The appellant contended that the prosecution failed to discharge its burden of proof being beyond reasonable doubt. He impugned that the trial court relied on fabricated, unreliable, inconclusive and weak evidence thereby arriving at an onerous decision. He maintained that he had been framed on account of a grudge the appellant had with the complainant’s mother. He added that his constitutional right to a fair trial under article 50 had been violated by the trial court. Finally, he lamented that his defence was improperly rejected.

8. In the premises, therefore, the appellant urged this court to allow the appeal, quash the conviction and set aside the sentence imposed on him.

9. During the hearing of the appeal, parties relied on their rival respective written submissions.

10. According to the appellant, the trial court erred in failing to inform him of his right to legal representation pursuant to article 50 (2) (g) and (h) of the Constitution and section 43 (1)(b) of the Legal Aid Act. He submitted that the trial court failed to discharge this constitutional duty at the earliest opportune moment. He added that the appellant qualified to be considered for legal representation in light of the nature and severity of the offence, his inability to pay for his own counsel and his low literacy levels.

11. The appellant challenged the credibility of the voir dire examination. He submitted that the court failed to establish that the complainant understood the nature of an oath. However, he observed that the trial court established the complainant understood the importance of telling the truth.

12. Next, the appellant propounded that crucial witnesses were not called to the stand. These include one A, V and S. The absence of their testimony rendered the evidence submitted by the prosecution inconclusive.

13. The appellant also submitted that the trial court erroneously disregarded the friction that had subsisted between the complainant’s mother and the appellant prior to the offence. In his view, the complainant’s mother must have lodged the complaint giving rise to the offence in bad faith as a retaliatory attack on the appellant.

14. The above analysis by the appellant led him to the conclusion that the prosecution had failed to prove beyond reasonable doubt that he had committed the offence. Sequentially, his defence, which he termed cogent, ought to have firmed up the fact that he did not commit the offence. He urged this court to allow his appeal.

15. The prosecution opposed the appeal.

16. It submitted that all the three essential ingredients to a charge of defilement namely the age of the victim (complainant), the aspect of penetration and the identity of the perpetrator had been established to the required standard of proof.

17. Learned prosecution counsel further submitted that contrary to the appellant’s allegations, the evidence presented before the trial court was reliable, conclusive, cogent and merited. She lauded the trial court’s rejection of his defence as was weak and general.

18. Counsel added that the sentence meted out was lawful. She urged this court to uphold the conviction and affirm the sentence.

Analysis: 19. This being a first appeal, it’s the duty of this court to re-consider and to re-evaluate the evidence adduced before the trial court with a view to arriving at its own independent conclusions and findings (See Okeno vs Republic [1972] EA 74). In doing so, this court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial court and, therefore, it ought to give due regard in that respect as so held in Ajode v Republic [2004] KLR81.

20. There are two main issues for determination in this appeal. They are as follows: -i.Whether the prosecution proved its case as required in law.ii.If the first issue is answered in the affirmative, whether the sentence ought to be interfered with.

21. This court will deal with the issues in seriatim.

i. Whether the prosecution proved its case as required in law: 22. The determination of this issue calls for a review of the evidence on record. To that end, a tour of the record is of essence.

23. The prosecution called 4 witnesses.

24. It was the prosecution’s case that the complainant (SK) aged 8 years old was a student at C School. In support of her age, the complainant’s child health and immunization card was produced.

25. It was averred that while on her way home from school on 2 September 8, 2018, the appellant met the complainant. The complainant recognized the appellant as a neighbour. The appellant then dragged the complainant into a nearby maize plantation. He removed her underwear and sexually assaulted her. During the ordeal, the appellant covered the complainant’s mouth with his hand. As a result, the complainant did not scream.

26. After the act, the complainant proceeded home where she lived with her grandmother, her mother (WM, PW2) and her father JG.

27. On arrival at home, the complainant found her mother and grandmother. She informed them what had transpired.

28. PW2 physically observed the complainant and noted that her private parts were swollen.

29. In her testimony, the complainant stated that the appellant on occasion visited their home prior to the incident. However, a dispute had arisen between her mother (PW2) and the appellant over the appellant’s theft of PW2’s clothes and utensils.

30. The complainant was, however, emphatic that she had not framed the appellant with the offence that he had been charged with.

31. It is on record that the complainant was taken to Wiyeta Health Centre on October 1, 2018 for treatment. The complainant’s patient record book was produced in evidence.

32. According to the medical evidence, upon examination of the complainant’s private parts, there were no injuries on the genitalia. However, the hymen was torn and old looking. That, was an indication that the complainant had previously engaged in sex and it was estimated to have been sometimes in 2017.

33. There was also whitish discharge as well as the presence of white blood cells from the urine samples taken for urinalysis.

34. Thereafter, the complainant was taken to the Kitale County Referral Hospital. That was on October 2, 2018 where she was seen by Joel Toroitich Kiptoo (PW3), a senior clinical officer attached to the health facility.

35. PW3 confirmed the injuries as recorded in the treatment notes from Wiyeta Health Centre. He produced the treatment notes as exhibit. According to PW3, the complainant had been defiled as there was evidence of penetration. PW3 filled the P3 form which he also produced as an exhibit.

36. The incident was reported on October 2, 2018 at Kipsaina Police Post. PW4, PC Michael Mamai, was the investigating officer. He recorded statements from potential witnesses and collected further evidence.

37. Being satisfied that indeed the complainant had been sexually assaulted, PW4, on the evening of October 6, 2018 arrested the appellant. He took him to the Police Post where the appellant was recognized by the complainant as the assailant. PW4 then charged the appellant accordingly.

38. After close of the prosecution’s case, the trial court found that the appellant had a case to answer and was placed on his defence.

39. The appellant gave sworn testimony. He stated that antecedent to the offence, the appellant was working for one GR at her farm. He recalled an incident in April 2018 where some three women demanded to be paid. However, since they failed to present receipts in support of their demand, the appellant failed to pay them. This exasperated those women who proceeded to hurl insults at the appellant.

40. Later, on October 5, 2018, these women, accompanied by some Police officers, visited the appellant’s place of work. They demanded that appellant pays them Kshs 30,000. 00 failure to which he be arrested. The appellant, in the company of his employer, pleaded for vindication. However, the appellant was taken to Sibanga Police Post and then to Kachibora Police Station. He was then formally charged on October 1, 2018. He denied committing the offence.

41. The appellant, therefore, pleaded his innocence over the charges.

42. It is the foregoing evidence which this court must now review and ascertain whether the ingredients of any of the offences which the appellant was charged with were proved. Needless to say, if this court finds that the main offence of defilement was proved, then the matter shall end there. There will be no legal basis for consideration of the alternative offence.

43. It is established by law and settled judicial precedents that the offence of defilement carries three components. They are the age of the victim, penetration and whether the accused was the assailant.

44. This Court will deal with each of the issues in turn.

Age of the victim: 45. The age of a person may be proved in many ways. It may be by way of medical evidence or any official documentation for instance Certificate of Birth, Child Health and Nutrition Card, School registration documents, among others. The age may also be proved by evidence of the parents or persons who may positively testify to the fact.

46. The complainant stated that she was 8 years at the time of the assault. The evidence was corroborated by the complainant’s Child Health and Nutrition Card which indicated that she was born on November 16, 2010. Accordingly, the complainant was slightly past 8 years old.

47. The complainant was, therefore, a minor within the meaning in section 2 of the Children Act.

Penetration: 48. The appellant argued that the prosecution failed to establish penetration. As a consequence, the trial Court erred in convicting him.

49. In this case, penetration was alluded to by the complainant, PW2 (the mother of the complainant) and PW3 (the Clinical Officer).

50. The complainant narrated her ordeal with the attacker. It was her testimony that the assailant held and dragged her into a maize plantation where he removed her underwear and sexual intercourse with her.

51. When the complainant eventually reached home and informed PW2 of what had happened, PW2 immediately observed the complainant’s private parts. PW2 noted that the private parts were swollen.

52. PW3 also physically examined the complainant around 4 days after the alleged ordeal. He noted whitish discharge. He also reviewed the medical notes from Wiyeta Health Centre where the complainant had been attended to 3 days after the attack.

53. According to PW3, his examination was in tandem with the findings made by his counterparts and as recorded in the medical chits. He further undertook laboratory analysis of the complainant’s urine. He noted the presence of white blood cells and concluded that there was penile penetration just like his counterparts at Wiyeta Health Centre.

54. On the re-evaluation of the above evidence, this Court is satisfied of the fact that the complainant’s sexual organ was penetrated by a male sexual organ. Penetration was, therefore, proved.

Identity of the perpetrator: 55. Was the appellant positively identified as the perpetrator? In this case, the identification of the perpetrator was by a single witness. It was the complainant.13. Courts have rendered guidance on how such evidence ought to be handled.14. The Court of Appeal in Wamunga vs Republic(1989) KLR 426 stated as follows: -…. It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial Court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction.15. Further, inNzaro vs Republic (1991) KAR 212 and Kiarie vs Republic (1984) KLR 739 the Court of Appeal emphasized that evidence of identification or recognition by a single witness must be absolutely watertight to justify conviction.16. In R -vs- Turnbull & Others (1973) 3 ALL ER 549, which decision has been generally accepted and extensively used in our judicial system, the Court looked into the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court had the following to say: -... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made….

56. The evidence of the complainant on identification has already been captured in the upper part of this judgment. The incident occurred during day time. It was around 3pm as the complainant was on her way home from school.

57. The complainant had known the appellant in this case before the day of the alleged incident. They were neighbours in some rental houses owned before the complainant’s family moved to another place.

58. The complainant also knew the appellant as the herdsman to one Mr. Kitur. The complainant was also a friend to one V who was a daughter to the said Mr. Kitur and who told the complainant that the appellant was their herdsman.

59. It was the complainant’s further testimony that she previously used to see the appellant come to their home and that there had been an allegation that the appellant had stolen PW2’s items, but the issue was settled.

60. The ordeal also took some time. The assailant grabbed the complainant. He then dragged her into a nearby maize plantation, removed her underwear and then sexually assaulted her. Given that it was during day time, the complainant had a further opportunity to recognize the assailant.

61. The complainant also pointed out the assailant at the police station as well as at trial. She vehemently denied an allegation that she had been asked by her mother to say that it was the appellant who had sex with her.

62. The above signals the fact that the complainant knew the appellant well before the incident. This was, therefore, a case of recognition of the assailant as opposed to identification.

63. The appellant, however, contested that he had been framed by some three women who claimed a sum of Kshs. 30,000. 00 from him. He also claimed that he had been framed by PW2 on account of previous allegations of theft of PW2’s clothes and utensils.

64. This Court has as well carefully considered the defence. However, it is worth-noting that the dealings between the appellant and the said 3 women did not in any way relate to the complainant or PW2. At least the record did not state otherwise.

65. On the allegation of theft, there is no evidence which reasonably suggested that the complainant was asked to make false allegations against the appellant.

66. The appellant’s defence did not, therefore, cast any doubt on the complainant’s recognition of the appellant as the assailant.

67. By considering the complainant’s evidence, the defence and the judicial guidance on the issue of recognition by a single witness, this Court is firmly convinced that the appellant was positively identified as the assailant.

68. As I come to the end of this issue, it is imperative to point out that the trial Court handled the aspect of the identity of the appellant quite well. There was a careful consideration of the evidence and the Court reached the correct finding in fact and law.

69. In the end, this Court affirms the position that the appellant was the one who had sexual intercourse with the complainant.

Other issues raised by appellant: 70. The appellant raised two other issues in challenging the conviction. They are the manner in which the voir dire examination of the complainant was conducted and the issue of infringement of the appellant’s right under Article 50 (2) (g) and (h) of the Constitution on legal representation.

71. The Court will consider the issues as well.

The voir dire examination: 72. The appellant contended that the Court did not establish that the complainant, who was a minor, understood the nature of an oath prior to directing her to give sworn testimony thereby making the conviction unsafe.

73. The position in this case was aptly captured by the Court of Appeal in Japheth Mwambire Mbitha –vs- Republic[2019] eKLR where the Court discussed the essence of the voir dire examination, the manner in which the examination ought to be conducted, the effect of non-compliance and the application of such examination.

74. This is what the Court stated: -(13)As regards the second issue, the appellant has contended that the evidence placed before the trial court was not only contradictory, but that no voir dire examination was ever conducted on the minors (PW 2 and PW 3). Voir dire examination is a hearing to determine the admissibility of evidence or the competency or qualification of a witness or juror (See Duhaime, Lloyd. “Voir Dire definition” Duhaime’s Legal Dictionary).With specific regard to the testimony of children, voir dire examination is essential to enable the court satisfy itself that the child is conscious of the truth. The purpose of voir dire was explained by this court in Johnson Muiruri vs Republic [1983] KLR 445 as follows:1. Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which even his sworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.2. It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided.3. When dealing with the taking of an oath by a child of tender years, the inquiry as to the child’s ability to understand the solemnity of the oath and the nature of it must be recorded, so that the cause the court took is clearly understood.4. A child ought only to be sworn and deemed properly sworn if the child understands and appreciates the solemnity of the occasion and the responsibility to tell the truth involved in the oath apart from the ordinary social duty to tell the truth.5. The judge is under a duty to record the terms in which he was persuaded and satisfied that the child understood the nature of the oath. The failure to do so is fatal to conviction.”(14)In this case, a perusal of the record reveals that prior to receiving the respective testimonies of PW 2 and PW 3, the learned trial magistrate went on an enquiry of whether each of the witnesses understood the meaning of telling the truth and the consequences of lying. Having satisfied herself that the two minors understood the importance of telling the truth, the court went on to record their evidence. No objection was ever raised by the appellant regarding the voir dire examination or the subsequent admission of the minors’ testimony. Again, it bears repeating that the purpose of voir dire is to ensure that the minor understands the solemnity of oath and if not, at the very least, the importance of telling the truth. In this case, the record shows that a brief interview was conducted in this regard on each of the two witnesses; to which the two minors even indicated to the court that failure to tell the truth renders a liar ineligible to go to heaven.(15)Having satisfied herself that the two minor witnesses understood the import of speaking the truth in court and the consequences of lying, the trial magistrate then admitted their evidence and from the record, we see no reason to interfere with that finding. The evidence of FO and PW 3 was admitted within the confined of the law on voir dire examination. ……”

75. Turning to the present case, the trial Court interrogated the complainant on a series of questions. In its penultimate, the trial Court established that the complainant understood that there were negative ramifications where a person is not truthful.

76. The trial Court in its assessment concluded that the child was frank, open and confident in her answers and knew the value of saying the truth.

77. The manner in which the Court examined the complainant was not challenged at trial. The Court was clear that the complainant knew the duty of speaking the truth. As well put by the Court of Appeal ‘…having satisfied herself that the minor witnesses understood the import of speaking the truth in court and the consequences of lying, the trial magistrate then admitted their evidence and from the record, we see no reason to interfere with that finding. The evidence of FO and PW 3 was admitted within the confined of the law on voir dire examination…’ this Court finds no basis to interfere with the manner in which the trial Court handled the issue of the voir dire examination.

78. The issue hereby fails.

Legal Representation: 79. The appellant lamented that he was not informed of his constitutional right to legal representation and that he was prejudiced.

80. This Court extensively dealt with the rights under Article 50(2)(g) and (h) of the Constitution in NMT alias Aunty v Republic [2019] eKLR. In that matter, this Court found that failure by the trial Court to comply with the duty to inform and record the accused’s right to be represented by an Advocate renders the trial a nullity.

81. The finding in the said matter followed a detailed discussion on the said rights.

82. This Court still holds that position. It is imperative to note that the appellant faced a possible life sentence since the mandatory sentences had not been declared unconstitutional when the appellant was charged in 2018.

83. As a point of emphasis, the Legal Aid Act which was enacted in 2016 specifically directs Courts in section 43(1)(a) as follows: -(1)A Court before which an unrepresented accused person is presented shall-a.promptly inform the accused of his or her right to legal representation;

84. This Court further reiterates the fact that most people who are charged in Courts may not be capable of understanding the Court procedures unless they are guided by inter alia the Courts. At the earliest possible opportunity, a Court is just called upon to inform an accused person that he/she has a right to legal representation. That is not a tall calling to adhere to.

85. Unless Courts take deliberate steps to ensure that the Constitution and the law are strictly enforced, many people will undergo trials without of any iota of knowledge of what possibly awaits them on conviction. They will possibly never reap the fruits of the rights and fundamental freedoms in the Bill of Rights.

86. This Court strongly believes that the departure from how trials were conducted prior to the 2010 Constitution was intended for greater public good. Such is worth enforcing.

87. Perhaps Courts should emulate the way the rights of accused persons are carefully explained to suspects in many other jurisdictions.

88. Having said so, this Court finds that the entire proceedings, judgment and sentence before the trial Court are a nullity and cannot stand in law.

89. The above finding now leads me to a consideration of whether the appellant be released or be retried.

90. This Court draws from several decisions of the Court of Appeal includingSamuel Wahini Ngugi v. R (2012) eKLR on the way forward.

91. The Court in Samuel Wahini Ngugi case (supra) stated as follows: -The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows:It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused personThat decision was echoed in the case of Lolimo Ekimat vs. R, Criminal Appeal No. 151 of 2004 (unreported) when this Court stated as follows:…the principle that has been accepted to courts is that each case must depend on the particular facts and circumstances of that each case but an order for the retrial should only be made where interests of justice require it.

92. The error on the record was occasioned by the trial Court. This Court has carefully considered and reviewed the evidence on record and without going into the merits thereof, a conviction is likely if the case is properly prosecuted. The offences allegedly committed are not only very serious but also beastly and the innocent, helpless and vulnerable victim will no doubt be affected for the rest of her life.

93. The appellant was charged in April 2018. Judgment and sentence were rendered on October 24, 2019. The appellant has by now been incarcerated for four years from taking plea. That period is not inordinately long considering the seriousness of the offences at hand.

94. The witnesses in the case are within the complainant’s family and and as such it will not be difficult to trace them. The Clinical Officer and the Police are readily available.

95. This Court is therefore of the considered view that the ends of justice will be served by an order of retrial instead of discharging the appellant.

96. Consequently, the appeal is allowed and the conviction quashed. The sentence is hereby set-aside and the appellant will be released into police custody and be produced before any Court competent to try him except Hon. M.I.G. Moranga, SPM. This should be in the next 7 days of this judgment.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 19TH DAY OF OCTOBER, 2022. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of:Simon Kibet Chebrot, the Appellant in person.Miss. Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the State.Kirong/Nawatola – Court Assistants.