[2022] KEHC 2546 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CRIMINAL APPEAL NO. 71 OF 2019

(From Original Conviction and Sentence in Butere PMCCRSO No. 4 of 2018

(Hon. MI Shimenga, RM) of 10th December 2018)

VINCENT OBULEMERE....................................................................................APPELLANT

VERSUS

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

JUDGMENT

1. The appellant herein has proffered this appeal, challenging his conviction and sentence in Butere SRMCRSO No. 4 of 2018, of the offense of rape, contrary to section 3 of the Sexual Offences Act, No. 3 of 2006, Laws of Kenya, where he was sentenced to 10 years’ imprisonment.

2. The duty of a first appellate court was stated by the Court of Appeal, in Gabriel Kamau Njoroge vs. Republic (1987) eKLR (Platt, Apaloo JJA and Masime Ag JA), in the following words:

“ … it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect.”

3. The facts of the case, as presented in the trial court, are that on at 6. 00 PM, on 25th February 2018, PW1, the complainant, was walking along a village road, when the appellant grabbed her and pushed her into a farm, where he undressed her and forcibly had sexual intercourse with her. After that he attempted to drag her to his house, but she screamed and got help. PW2, was along the road when he saw the appellant attack PW1 and push her into the bushes. PW3 and PW4 harkened to the screams by PW1 and went to her rescue. PW5 was the clinical officer who attended to PW1, while PW6 was the investigating officer. The appellant was put on his defence. He gave a sworn statement, and denied the charges. At the end of the trial, the court evaluated the evidence, and was satisfied that the offence of rape was established against the appellant, and convicted him accordingly, and sentenced him to 10 years’ imprisonment.

4. The appellant was aggrieved by the conviction and sentence, and proffered the instant appeal, raising several grounds of appeal. He avers that he had pleaded not guilty; the trial did not meet the threshold and standards of a fair hearing as per Article 50(2) ((g)(h) of the Constitution; the charge sheet was defective contrary to section 214(1) of the Criminal Procedure Code, Cap 75, Laws of Kenya; the trial did not meet the standards of section 36 of the Sexual Offences Act; the evidence was not corroborated; and the burden of proof was shifted to him.

5. The first ground is not a ground of appeal per se, but a matter of fact. The appellant states that he had pleaded not guilty to the charge. It is on record that he did in fact plead not guilty to the charge, and that was reason why a trial was mounted. But just in case the appellant intended to raise a ground that by pleading not guilty he meant that he was not guilty and the trial court should have been guided by that plea, and acquitted him, let me make it clear that a plea of not guilty does not mean that the accused person making the plea is not guilty. Such a plea simply clears the matter for trial, as set out in section 208 of the Criminal Procedure Code, which provides as follows:

“208. Procedure on plea of not guilty

(1) If the accused person does not admit the truth of the charge, the court shall proceed to hear the complainant and his witnesses and other evidence (if any).

(2) The accused person or his advocate may put questions to each witness produced against him.

(3) If the accused person does not employ an advocate, the court shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer.”

6. The second ground is on fair trial principles, and especially that relating to a right to legal representation. It is stated in Article 50(2(g) of the Constitution, and it is to the effect that an accused person is entitled to choose and be represented by an advocate, and to be informed of that right promptly. The courts have interpreted that provision to mean that there is a duty on the part of the court to communicate that right to the accused person, either before he talks plea or at the time of plea taking, and that evidence of that communication ought to be deduced from the court record. See Chacha Mwita vs. Republic [2020] eKLR (Mrima J), Kenga Hisa vs. Republic [2020] eKLR (Nyakundi J), AMR vs. Republic [2021] eKLR (Wendoh J) and Joseph Kiema Philip vs. Republic [2019] eKLR (Nyakundi J).

7. There is a second aspect of the right to legal representation, as stated in Article 50(2)(h) of the Constitution, and that is the right to have an advocate assigned to the accused by the State and at State expense, if substantial injustice would otherwise result, and to be informed of that right promptly. The constitutional provision has found exposition in the Legal Aid Act, No. 6 of 2016, which establishes a national legal aid service. Section 43 of the Legal Aid Act obliges the trial court to promptly inform an accused person, who is placed before it unrepresented, of their right to legal representation. Where such court assesses that substantial injustice is likely to result, it is obliged to inform the accused person of his right to have an advocate assigned to him. The trial court is obliged to thereafter inform the National Legal Aid Service to provide legal aid to the accused. Considerations for provision of such legal aid include severity of the charge and sentence, complexity of the case and capacity of the accused person to defend themselves. Section 40 of the Legal Aid Act sets out the process of application for such legal aid. The right has been the subject of discussion by the courts in such cases as Thomas Alugha Ndegwa vs. Republic[2016] eKLR (Koome, Azangalala and J. Mohamed JJA) and Republic vs. Karisa Chengo & 2 others [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ibrahim, Ojwang, Wanjala and Lenaola SCJJ).

8. Did the trial court comply with the requirements of Article 50(2)(g)(h) of the Constitution? The primary duty of the court in the two provisions is to inform the accused person of his right to legal representation. In one case, the court informs or communicates the right and leaves it to the accused to do whatever he chooses with respect to the communication. In the other, depending on the charge and severity of sentence, there is further obligation to assess whether substantial injustice is likely to occur, and to take the further step of informing the accused of the possibility of an advocate being allocated to him at State expense, subject to him applying for it. The court should also take the further step of getting in touch with the national legal aid service in that behalf. The duty to inform the accused person of his right to legal representation applies with respect to all criminal offences, whether serious or minor, and the right to an advocate being assigned at State expense would apply in limited cases, where the offence is serious and the sentence severe, or the case is complex, or the accused person is indigent, or substantial injustice is likely to occur.

9. Is it really necessary for strict observance of these provisions? The right accrues to the accused person and a duty is imposed upon the court with respect to the right. It is the Constitution which decrees it. If it was important enough for it to find its way into the Constitution, then it must be observed. It is recognition that the criminal system is alien to most of those who have to interact with it, and there is a duty for the court to make it easier for them, by demystifying it to them, through information, education and communication, when these persons interact with the court for the first time. Of course, it is said that ignorance of the law is not a defence, and it is assumed, often, that those who appear in court know their way around the system. That is not true for most people, even for the most educated. There is need for guidance, and the Constitution has assigned the responsibility of doing so to the court. The court, by these constitutional provisions, is not so much a passive player in the proceedings. It has to be proactive, in ensuring that those who appear before it, are aware of their rights with respect to criminal trials. The Constitution has made it a prerequisite, with respect to fair trial, for that information to be communicated, and it follows, therefore, where the same is not communicated, that the fair trial principles will have been breached, and the proceedings conducted thereafter would be compromised.

10. Article 50(2)(g)(h) of the Constitution has revolutionized criminal trials, by introducing safeguards that the courts must observe. The Constitution requires communication of those particular rights to accused persons, and constitutionalism demands that the same be observed. Application of the doctrine of the rule of law would demand full compliance with Article 50(2)(g)(h) of the Constitution. It would serve no purpose to have these lofty principles in the Constitution, about fair trial, if they are not going to be observed. The culture of observance of fair trial principles will never kick in until these constitutional provisions are observed to the letter. The trial courts have largely adopted the principle of advance disclosure of State evidence, and incorporated it in the criminal trial processes; they should equally embrace the principle of informing the accused of their right to legal representation, and the other bits that go with that right. Perhaps the Criminal Procedure Code ought to be amended to align it fully with Article 50(2)(g)(h) of the Constitution, and the relevant provisions of the Legal Aid Act.

11. I have carefully perused through the record of the trial court. Plea was taken on 19th March 2018. The record is silent on whether the court addressed the appellant on the rights stated in Article 50(2)(g)(h) of the Constitution. That suggests that the court did not inform the appellant of those rights, and, therefore, those provisions were not complied with. The matter was then mentioned on 3rd April 2018, 17th April 2018 and 2nd May 2018, and, on all those dates, the trial court did not advert to the issue. The hearing commenced on 7th May 2018 and continued up to 5th November 2018. The trial court did not, at any time of the active trial, attempt to comply with Article 50(2)(g)(h) of the Constitution. That would mean that the fair trial principles stated in that provision were not observed, and the appellant’s rights, with respect to the same, were violated. The consequence of that was that the trial was compromised, for these constitutional guarantees to a fair trial were not observed.

12. The third aspect of fair trial principles is with respect to Article 50(2)(j), on being informed in advance of the evidence the prosecution intends to rely on, and the right to have reasonable access to it. The record before me indicates that there was substantial compliance with Article 50(2)(j) of the Constitution, for the appellant was supplied with copies of the charge sheet, treatment notes, P3 Form, 5 witness statements and the investigation diary. The record captures the fact that the prosecution called 6 witnesses, which would mean that the appellant was not given 1 witness statement. However, that should not be fatal, given that that witness was the investigating officer, whose evidence was a mere regurgitation of the testimonies of the other witnesses.

13. The third ground is about the charge being defective, contrary to section 214(1) of the Criminal Procedure Code and Article 2(4) of the Constitution. I have scrutinized the two provisions, as against the claim by the appellant that the charge sheet was defective, and I am unable to see in what respects the charge was defective. The appellant has also not demonstrated, in his written submissions, how the charge was defective.

14. The fourth ground is that the trial did not meet the standard set in section 36 of the Sexual Offences Act. Section 36 is about employment of evidence of medical, forensic and scientific nature in proof of sexual offences. It is about how the samples are to be harvested, handled and tested, and how the evidence gathered is to be presented before a court of law. The courts have severally interpreted section 36, and said that the processes stated in there are not mandatory. They are left to the discretion of the particular court handling the matter, and that, in any event, sexual offences can be proved in many other ways, apart from reliance on medical or forensic or scientific evidence. It was said, in AML vs. Republic [2012] eKLR (Odero J), that the fact of rape or defilement did not have to be proved by way of forensics, but by way of other evidence, including the testimonies of the victims. In Kassim Ali vs. Republic [2006] eKLR (Omolo, Bosire and Githinji JJA), it was stated that absence of medical evidence, to support the fact of rape, was not decisive, as the fact of rape could be proved by the oral evidence of the victim of rape or by circumstantial evidence.

15. The fifth ground is about the evidence against the appellant not being corroborated. Section 124 of the Sexual Offences Act answers this ground, for it provides that the evidence of a victim of a sexual offence need not be corroborated. In any event, the evidence of the victim was corroborated. The prosecution called six witnesses. PW1 was the complainant, she explained how the appellant accosted her and dragged her to the bushes and forcibly had sexual intercourse with her. After the first round of sexual assault, he attempted to drag her to his house, with intent to continue the assault, whereupon she screamed, and various people came to her rescue. Among those who responded included PW2, PW3 and PW4. PW5 was the clinician who attended to PW1. He established that she had had recent sexual intercourse, which suggested rape. The medical evidence by PW5 clearly corroborated the testimony of PW1, that the appellant had had sexual intercourse with her. PW2 saw the appellant drag PW1 to the bush, that was another corroborative bit of evidence, that she had been forcibly dragged into the bushes. PW3 and PW4 heard her screams, as the appellant attempted to drag her to his house for further sexual assault. They corroborated her narrative that she screamed when he attempted to do so, and that it was on account of her screaming that she got help. It cannot then be true that there was no corroboration.

16. The final ground is that the burden of proof was shifted to the appellant. I have closely perused the record before me, and I have not seen any evidence of any incident where the trial court shifted burden of proof of any fact to the appellant. I have also closely perused the written submissions by the appellant, and I have not seen any demonstration as to how burden of proof of any fact was shifted to him.

17. On the facts of the case, it may appear that there is no merit in the appeal; however, the preliminary thing to consider, is not the merits of the case, but the foundational issues raised with respect to the trial. I have found that the fair trial principles, in Article 50(2)(g)(h) of the Constitution, were not complied with. They were violated or infringed, the trial was compromised, and the appellant was not treated fairly, going by those standards. I shall accordingly allow the appeal herein, on the finding that there was a mistrial. The conviction is quashed, and the sentence is hereby set aside. I direct that the matter be referred back to the Butere court for the purposes of a retrial. The court at Butere shall take plea and fast-track the trial. The appellant shall be released from Prison custody, and handed over to the Police, to be produced before the Principal Magistrate’s Court at Butere, for the purposes of plea-taking. The appeal is disposed of in those terms.

PREPARED, DATED AND SIGNED AT KAKAMEGA ON THE 17TH DAY OF SEPTEMBER, 2021

W MUSYOKA

JUDGE

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OF FEBRUARY 2022

W MUSYOKA

JUDGE

MR. ERICK ZALO, COURT ASSISTANT.

MR. VINCENT OBULEMERE, APPELLANT, IN PERSON.

MR. MWANGI, INSTRUCTED BY DIRECTOR OF PUBLIC PROSECUTIONS, FOR THE RESPONDENT