[2022] KEHC 11875 (KLR)

Stone v Republic (Criminal Appeal 88 of 2019) [2022] KEHC 11875 (KLR) (10 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11875 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Appeal 88 of 2019

WM Musyoka, J

June 10, 2022

Between

Laban Akala Stone

Appellant

and

Republic

Respondent

(Appeal from judgment and sentence of Hon JN Maragia, Senior Resident Magistrate, in Kakamega CMCCRC No 14 of 2016, of July 7, 2019)

Judgment

1. The appellant had been charged before the primary court of the offence of defilement contrary to section 8(1) of the Sexual Offences Act, No 3 of 2006, Laws of Kenya. The particulars were that on the night of January 21, 2016, at [Particulars Withheld] Sub-Location, Shieywe Location, Municipality Division, within Kakamega County, with intent to defraud, he intentionally and unlawfully caused his penis to penetrate the vagina and anus of JM, a child aged fourteen years. He faced an alternative count of committing an indecent act with a minor, the particulars being that on the same date, at the same time and placed, he touched the vagina of JM with his penis.

2. He pleaded not guilty to the charge, and a trial was conducted. Four prosecution witnesses testified. The complainant, PW1, explained how he the appellant forcefully took her to a house under construction, undressed her and put his penis into her vagina and anus. She was rescued by the police. The appellant escaped, but was later arrested. PW2 was the clinical officer who attended to and treated PW1 after the incident. She said PW1 had injuries on her knees, a discharge from her vagina and her anus had lacerations and tears. PW3 was the investigating officer. PW4 was with PW1 when the appellant grabbed them, and took them to the house where PW1 was defiled. She managed to escape and left PW1 with him. She knew the appellant by name. She reported the incident to local leaders, who informed the police. She was the one who led the police to the house, and PW1 was rescued, but the appellant escaped. The appellant was put on his defence. He made a sworn statement. He explained how he was arrested. He denied committing the offence. In its judgment, the trial court framed three questions, whether PW1 was a child, whether there was penetration, and whether the penetration was by the appellant. The trial court found three issues positively proved, and proceeded to convict the appellant, and subsequently sentenced him to serve fifteen years in prison.

3. The appellant was aggrieved, and brought the instant appeal, founded on several grounds. He states that the fair hearing principles set out in Article 50(2) of theConstitution of Kenya, 2010, were not observed; the charge was defective; the age of the PW1, penetration and identification were not proved beyond reasonable doubt; the court did not consider whether the testimony of PW1 was corroborated; the convicting Magistrate considered PW1 truthful and honest yet she did not see or hear PW1 testify; section 200(4) of the Criminal Procedure Code, Cap 75, Laws of Kenya, was offended; he was not subjected to medical examination, contrary to section 36(1)(2) of the Sexual Offences Act; the identification of the clinical officer, PW4, was not established; and his defence was not considered and burden of proof was shifted to him.

4. Directions were taken on October 27, 2021, for the disposal of the appeal by way of written submissions. The appellant has filed his written submissions, but the respondent has not. He has summarized his grounds of appeal into five: the first dealing largely with what he calls contradictions and inconsistencies in the evidence; the second addresses the defectiveness of the charge; the third is on identification; the fourth dwells on the testimony of the clinical officer, PW4, pointing out the inconsistencies in it; and the fifth is on his alibi defence. I shall deal with the five in turn.

5. The first ground points out what the appellant identifies as inconsistencies in the evidence of PW1. He questions why PW1 accepted to board a motorcycle as ordered by him, if she was unfamiliar with him. He further raises the issue that if he was a notorious criminal, according to PW4, why did she and PW1 not seek assistance of the motorcyclist and the other two passengers who had also boarded the motorcycle. He further points to the fact that there were other people at the scene, which ought to raise doubts about who actually defiled PW1. He further wonders why the other persons were not arrested, and if one of them was shot on the leg, why was that person not arrested.

6. I have closely considered the testimonies of PW1 and PW4. I note that PW1 had hesitated before she mounted the motorcycle, which the appellant was to ride, and on which he ordered them to board, and she only mounted it after PW4 motioned her to. PW4 said she knew the appellant for a long time. PW1 only boarded after PW4 encouraged her to. It cannot, therefore, be said that there was any reason for them to sense immediate danger as PW4 knew the appellant. There was no need for her and PW1 to alert the cyclist who gave the motorcycle to the appellant, and his passengers, as PW4 sensed no danger, and had assured PW1 of the same. On the events when PW1 was rescued, the appellant resisted arrest, and was armed with a panga, and escaped, and gunshots had to be fired. That was a chaotic scene, and youngsters like PW1 and PW4 would not have had the answers to the issues that the appellant is raising. Only one police officer testified. He was, however, not at the scene of the rescue and could not shed light on those issues. In any event, what matters is the identification of the appellant by PW1 and PW4. They were positive that he was the assailant. PW1 did not talk of any other person sexually assaulting her, despite there being another person or other persons within the vicinity. She talked of being with the appellant throughout. She said the other person remained away while the appellant took her to another room where he defiled her. They were together for a long time, and sexual intercourse brings the two engaged in it into very close contact, which is usually sufficient for the parties to get familiar with each other, for identification purposes. Secondly, PW4 knew him well. She was with the appellant and PW1 at the house, where PW1 was assaulted, and when she escaped she left them there, and she was the one who brought the police to rescue PW1. She saw the appellant at the scene with a panga, resisting arrest and saw him escape. The testimonies are quite clear. PW1 and PW4 were at the scene. They did not talk about the appellant or anyone getting shot. The reference to gunshot wounds was made by PW3, but he was not at the scene. He testified for the investigating officer, who was not available. Inconsistencies from his testimony cannot possibly take away from the very clear and flowing accounts by PW1 and PW4 who were at the centre of it all. It is clear that there were other individuals within the vicinity with the appellant, when PW1 was being defiled, but PW1 was clear and consistent that those others did not touch her, and that she was with the appellant throughout.

7. The appellant submits that he was prejudiced as he was tried and convicted on the basis of a defective charge. Defective because it was duplex. He says he did not know the exact offence that he was facing and defending himself with respect to, on account of that duplicity. He has not pointed out the nature of the duplicity. A duplex charge refers to a count which charges the accused with two or more separate offences. See Archibold JF: Archibold’s Pleadings, Evidence and Practice in Criminal Cases, London, Sweet & Maxwell (5th ed.), 1962, 53. I have closely looked at the charge. It does not disclose two or more offences. It discloses only one offence. Defilement. Perhaps the appellant is concerned about the reference to penetration of the anus and vagina of the victim. Defilement can arise from the penetration of either the anus or the vagina, according to the definition of “genital organs” in section 2 of the Sexual Offences Act. The allegation was that he penetrated the anus and the vagina of PW1 during the course of sexually assaulting her at the material time. There was, therefore, no duplicity, and the charge was not defective.

8. The next ground relates to his identification by PW1 and her credibility. PW1 had not seen the appellant before the ordeal, and the appellant submits that she did not, in her report to the police identify him by way of any features. It could be that at the trial questions were not put to PW1 about how she identified the appellant, and no evidence was led on the nature of the report that she made to the police. But the testimony of PW4 is critical, because it corroborates that of PW1 on everything, including identification. She is the one who knew the appellant. He took her and PW1 to some house, from where she escaped. Upon escaping, she left him and PW1 together. She is the one who brought the team that rescued PW1, and she saw the appellant again at the scene at that time. PW1 was clear in her testimony, that the appellant was with her throughout, right from when he got her and PW4 to board the motorcycle, up to the point the police came to her rescue. His identification cannot be in doubt. The appellant challenges her credibility, as she did not know him before the incident, and only made a dock identification. I believe I have answered this submission. The testimony of PW1 should not be taken in isolation of that of PW4, who was with her, when the appellant took them to the house, she escaped and left them together, and she was the one who brought help, and PW1 and the appellant was still at the scene together.

9. On the medical evidence, the appellant appears to have abandoned his earlier ground about section 36 of the Sexual Offences Act, that he was not medically examined, to connect him to the offence. Section 36 is not in mandatory terms. The trial court can convict for defilement based on evidence other than medical evidence, or without medical evidence. So, the omission to have him examined is not fatal. The appellant attacks the clinical officer, PW2, for something that he said about the age of PW1. The age of PW1 was proved by way of the birth certificate placed on record, and, therefore, whatever PW1 might have said about her age, is of little consequence. He also points out that PW2 talked of seeing PW1 on January 22, 2016; then he later talked of PW1 being attended on January 29, 2016. It is true that that is what the record reflects, but not every discrepancy or inconsistency in the testimony of a witness is of consequence. I am not persuaded that this establishes PW2 to be a witness unworthy of credit. He also points out that PW2 had testified that he was a clinical officer at Kakamega Provincial General Hospital, then later said he was working at Shibwe Sub-County Hospital. That is what the record reflects. But I do not think that anything should turn on this. He talked of working at the Kakamega Provincial General Hospital when he testified on July 25, 2017; when he was recalled on January 28, 2019, he stated that he was working at Shibwe Sub-County Hospital. I see no inconsistency, these were different dates, and he had probably changed work stations. The appellant should have probably confronted him with that question at that time, but it would appear, from the record of January 28, 2019, he did not, and nothing should turn on this.

10. Finally, the appellant submits that his alibi defence was not considered. In an alibi defence, an accused person alleges that he was elsewhere, not at the scene of the alleged crime, at the time the offence was allegedly committed. See Karanja v Republic[1983] KLR 501 (Hancox, Chesoni JJA & Platt Ag JA). In this case, the appellant only talked about where he was when he arrested on January 27, 2016. He did not give an account of where he was on January 21, 2016, the day when the offence was allegedly committed. He merely said that he did not commit the offence. He did not say that he was not at the scene that day or that he was elsewhere at that time. He did not offer an alibi, and it cannot, therefore, be argued that the trial court did not consider it, for there was none.

11. Some of the grounds raised in the petition of appeal are not highlighted in the written submissions. One approach is to treat them as abandoned, but I shall nevertheless consider them. One of them is that Article 50(2) of the Constitution was not observed. Article 50(2) is quite broad. It runs from paragraph (a) to (q). The appellant has not pointed out the fair trial principles that he says were not observed. I find it difficult to address this ground as there are no specifics. I note that the language used at the stage of arraignment was Kiswahili. It was not indicated whether that was the language that the appellant understood. In the course of trial, the language used by the witnesses was indicated with respect to some of the witnesses, but not with respect to others. The appellant was unrepresented throughout. The record is silent on whether he was informed of his right to choose and be represented by an Advocate. The record is also silent on whether the trial court considered whether his case merited being assigned an Advocate at State expense, if substantial injustice could otherwise result, and it was not recorded whether the trial court addressed the appellant on those matters. The record does indicate that there was disclosure of the State case to the appellant. The fair trial principles stated in Article 50(2) of the Constitution are basic minimums of what a fair trial should entail, and there should be scrupulous observance of the same. The trial court ought not take them for granted, for where they are overlooked, the entire process could be rendered invalid, exposing the criminal justice system to disrepute, and exposing all involved, the accused, complainant, witnesses, the court and the prosecution to prejudice and hardship. They are a requirement of the basic law, and they must be observed, otherwise they may reduce the trial to a charade or a farce.

12. The other issue raised is that of corroboration of the evidence of PW1, the complainant. Corroboration of the testimony of a sexual offence victim, particularly that of a child, is no longer a mandatory requirement. The trial court can still convict where it finds that the witnesses was truthful and honest. However, in this case there was ample corroboration of PW1 by other witnesses. PW4 is the main one. She was with PW1 when they first came into contact with the appellant, and rode on his motorcycle up to the house where the incident happened. She left them there when she escaped. She found them there when she brought the police to the scene. PW2, the clinical officer, also provided corroboration on the alleged defilement. He met PW1 a day after the ordeal, got the history of the incident, examined her and treated her. He made clear findings of a sexual assault.

13. The other ground relates to observance of section 200 of the Criminal Procedure Code, and is related to the other that the trial Magistrate believed the testimony of PW1 yet she never saw nor heard the witness testify. Section 200 deals with how to handle a trial where the trial Magistrate has to abandon the same for some reason, and it has to be taken over by another. Under section 200(1), the succeeding Magistrate may, where the outgoing Magistrate had completed the trial and had prepared a judgment and signed it, deliver the same; and where judgment had not been written by the outgoing Magistrate, the succeeding Magistrate may write a judgment based on the evidence recorded by the outgoing Magistrate, or otherwise resummons the witnesses and recommence the trial. Section 200(2) allows the succeeding Magistrate to impose sentence, where the outgoing Magistrate had convicted but not sentenced. Section 200(3) states the rights of an accused person with respect to all this. He has a right to demand the recall of witnesses, and the trial court has a duty to inform him of that right. Section 200(3) is in mandatory terms with respect to the duty of the court to inform the accused of that right. That then means that whenever a criminal trial has to be abandoned mid-stream by the Magistrate conducting it, for whatever reason, the succeeding Magistrate must inform the accused of the right stated in section 200(3). It is a fair trial principle. Section 200(4) empowers the High Court to set aside a conviction and may order a retrial, if it is of the opinion that the accused person was prejudiced upon being convicted on evidence not wholly recorded by the convicting Magistrate.

14. The courts have considered section 200, and in particular subsection (3). In Njenga v Republic [1984] KLR 605 (Hancox CJ, Chesoni & Nyarangi JJA), it was observed that in a case depending on visual recognition, where the principal witness is heard by one Magistrate and the second identifying witness by another, it would be essential that the accused is informed of his right to re-summon the witness. It was emphasized that section 200(3) entitled an accused person to demand that any witness be re-summoned and enjoined the trial Magistrate to inform the accused of that right. On the facts of that case, it was held that since it could not be said that if the succeeding Magistrate had seen and heard both identifying witnesses he would necessarily have convicted, and it could not be said that that failure did not cause prejudice to the accused. The court went on to allow the appeal.

15. In its own words, the Court of Appeal said:“The short point remaining for our consideration … is whether the failure by the learned Senior Resident Magistrate … who took over the station from Mr. Omondi-Tunya after the evidence of the complainant only had been given, to inform the appellant and his co-accused of their right to have that witness re-summoned and reheard under section 200(3) of the Criminal Procedure Code, occasioned a failure of justice … We cannot be sure that if the second magistrate had seen and heard both identifying witnesses, he would necessarily have convicted. We cannot say that the failure caused no prejudice to the appellant. The first appeal should not have been summarily rejected … The conviction is quashed, the sentence set aside and the appellant is directed to be set free.”

16. Ndegwa v Republic[1985] eKLR (Madan, Kneller & Nyarangi JJA) states the principle behind section 200 of the Criminal Procedure Code, in the following terms:“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases where the exigencies of the circumstances, not only are likely but will defeat the end of justice, if a succeeding magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial.Section 200 is not to be invoked where, as seemingly in the instant case, such a half-heard trial is a short one, it could be conveniently started de novo because the prosecution witnesses are still available locally , and passage of time when the trial first commenced and another magistrate taking over almost midway, is so short so as to cause or produce any accountable loss of memory on their part, whether actual, presumed or pretended, to the prejudice of either the prosecution or the accused.No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is to the most sacrosanct individual in the system of our legal administration.It could be also argued that statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanour and credibility of witnesses. It has been and will be so in the other cases that will follow…”

17. In the end, for the purposes of that case, the court found and held:“… In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully ‘”observed” the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanour of all the witnesses in the case. A fatal vacuum in this case, in our opinion. The succeeding magistrate was as helpful as he could possible make himself. He acted in an attempt to dispatch justice speedily. We appreciate his motive very much. The sweetness of justice lies in the swift conclusion of litigation … For the reasons we have stated, in our view the trial was unsatisfactory.”

18. My understanding of Ndegwa vs Republic [1985] eKLR (Madan, Kneller & Nyarangi JJA) is that discretion to continue a criminal trial from where the previous magistrate left off should be exercised sparingly. The principle is that let the case start de novo, unless the exigencies of the circumstances dictate otherwise, or, I should add, the accused person concedes to such continuation. The exigencies being that the ends of justice would be defeated if the case does not continue from where the retiring magistrate left off.

19. So what happened in this case? The trial had commenced under BS Khapoya, Senior Resident Magistrate. He took evidence from two witnesses, PW1, the complainant, on February 20, 2017, and PW2, a clinical officer, on July 25, 2017. He then went on transfer, and the matter was taken over by JN Maragia, Senior Resident Magistrate. She reheard PW2, after he was recalled, on January 28, 2019, on application by the prosecutor, to produce some document; PW3, the investigating officer, on March 5, 2019, and PW4, the second most critical witness, after PW1, on March 11, 2019. When the principle in Ndegwa vs Republic [1985] eKLR (Madan, Kneller & Nyarangi JJA) is applied, the trial should have started de novo, as only two witnesses had testified. More importantly, and going by Njenga vs Republic [1984] KLR 605 (Hancox CJ, Chesoni & Nyarangi JJA), PW1, the witness that the succeeding Magistrate did not hear was the most critical, as she was the complainant and an identifying witness. It is critical that the succeeding Magistrate should have heard her evidence and that of PW4. It cannot be said with certainty whether, upon hearing them both, she would have convicted or not. That of itself made the trial unsatisfactory, the conviction ought to suffer the fate as that met the convictions the subject of the appeals in Njenga vs Republic [1984] KLR 605 (Hancox CJ, Chesoni & Nyarangi JJA) and Ndegwa vs. Republic [1985] eKLR (Madan, Kneller & Nyarangi JJA).

20. It is noteworthy that the succeeding Magistrate did not at all comply with section 200(3) of the Criminal Procedure Code. She did not inform the appellant of his rights, under section 200(3), to have the witnesses re-summoned and re-heard, and, therefore, the appellant did not get to exercise his rights under that provision. That was a violation of his fair trial rights. Section 200(3) states:“Where the 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 re-summoned and reheard and the succeeding magistrate shall inform the accused persons of that right.”

21. Section 200(3) states a fair trial right, which accrues to an accused person. He is entitled to “demand” the re-summoning and re-hearing of witnesses. That right imposes a corresponding duty on the succeeding Magistrate to inform the accused person of that right. Because there is a right on the part of the accused to demand the re-summoning and re-hearing of witnesses, the succeeding Magistrate, once he or she takes over, must inform the accused of that right, so that he can make the demands, if he is so minded. The succeeding Magistrate has to accede, unless the exigencies of the circumstances demand that he continues the trial without recalling the witnesses and rehearing them. The omission by the succeeding magistrate to comply with the section 200(3) was a fundamental flaw in the proceedings.

22. In the end, I find that, whereas the appeal is weak on the merits, that is with relation to the substance of the charge, that is the evidence marshaled to establish it and the manner of its presentation, however, the trial process itself was unsatisfactory and fundamentally flawed, to the extent that the fair trial principle in section 200(3) was not complied with. I, therefore, quash the conviction and set aside the sentence. Ideally, I should order a retrial, but I have decided against it, and, instead, I shall order that the appellant be set at liberty. The appeal is disposed of in those terms.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 10 th DAY OF June 2022WM MUSYOKAJUDGEMr Erick Zalo, Court Assistant.Laban Akala Stone, the appellant, in person.Mr Mwangi, instructed by the Director of Public Prosecutions, for the respondent.