[2022] KEHC 2692 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

HCCRA NO. E020 OF 2020

WK........................APPELLANT

VERSUS

REPUBLIC.......RESPONDENT

[Being an appeal from the Judgment of Hon. E. M. Onzere (SRM) delivered on 11th March 2020 in PM’s Court in Tamu Criminal Case No. 01 of 2020]

JUDGMENT

The Appellant, WK, was convicted for the offence of Defilementcontrary to Section 8 (1) (2)of the Sexual Offences Act. He was then sentenced to 40 Years Imprisonment.

1. In his submissions before me, the Appellant raised six issues, which can be summarized as follows;

1. The appellant’s Constitutional rights,under Article 50 (2) (j) were violated as the evidence of the Clinical Officer was never disclosed to the appellant in advance.

2. The trial Court failed to inform theappellant that he had a right to legal representation.

3. The evidence of the complainant wasobtained through degrading punishment which her mother administered upon her:

such evidence was detrimental to justice.

4. The trial Court failed to warn itself ofthe danger of convicting the appellant, based on unsworn and uncorroborated evidence of a child of tender years.

5. As the complainant was a daughter ofthe appellant, the offence committed was one of Incest. In the circumstances the maximum prescribed sentence was 10 Years imprisonment.

6. The mandatory nature of the sentencewas unconstitutional.

2. When canvassing the appeal, the Appellant pointed out that PW1was not on the list of the witnesses cited on the charge sheet. Secondly, the Witness Statement of that witness was not provided to the Appellant.

3. The Appellant cited Article 50 (2)hwhen he submitted that the right to legal representation goes to the root of fair trial, as an accused person who was un-represented was most probably going to suffer substantial injustice.

4. As regards the evidence of the Complainant, the Appellant quoted the following words from the Court of Appeal, in an un-named case;

“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 voire dire examination, whether the child understands the nature of an oath; in which event his sworn evidence may be received.

If the court is not so satisfied, 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.”

5. According to the Appellant, the complainant’s evidence was not corroborated by any other material evidence. Therefore, he believes that he ought not to have been convicted on such uncorroborated evidence of the minor.

6. The next issue which was taken up by the Appellant was in relation to the provisions of Article 50 (2) (f)of the Constitution, which entitle an accused person;

“……… to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”

7. The Applicant submitted that he ought to have been sentenced to 10 Years imprisonment, for the offence of Incest, contrary to Section 7of the Sexual Offences Act.

8. In determining this appeal, I will start with the last submission.

9. The record of proceedings reveals that the Complainant was the daughter of the Appellant. Therefore, it was possible in principle, to have charged and tried the Appellant for the offence of Incest.

10. The offence of Incestis defined under Section 20of the Sexual Offences Act, when the offender is male. But if the offender is female, she would be charged under Section 21of the Sexual Offences Act.

11. When an accused is convicted for committing the offence of Incest, the prescribed sentence shall not be less than 10 Years imprisonment.

12. Under Section 7of the Sexual Offences Act, the offender would be convicted if he intentionally committed rape or an indecent act with another within the view of a family member, a child or a person with mental disability.

13. Such an offender would be liable to imprisonment for a term of not less than 10 Years.

14. From the facts of this case, the Appellant could not have been charged under Section 7of the Sexual Offences Act, as he did not commit rape or an indecent act with another, within the view of a family member, a child or a person with mental disabilities.

15. He performed an act in which his penis penetrated the vagina of a child who was 6 years old; that constituted the offence of defilement. Therefore, I find that there was no error committed when the Appellant was charged, tried and convicted for the offence of defilement.

16. And because the conviction was for defilement, the trial court was right to have handed down the sentence which was prescribed by law, for that particular offence.

17. It would have been wrong to convict the Appellant for defilementcontrary to Section 8, and then sentence him under a legal provision that was not prescribed in relation to that offence.

18. In any event, Article 50 (2) (p)of the Constitutiononly comes into play when it is demonstrated that the sentence prescribed had changed between the time when the offence was committed, and the time of sentencing. In such a scenario, the accused would, upon conviction, be entitled to the least severe of the prescribed punishments.

19. In this case, the Appellant did not demonstrate that there had been a change in the sentence prescribed for defilement, and that such a change had taken place between the time the offence was committed and the time of sentencing.

Voire dire examination

20. The Complainant, RC, testified as PW3. Prior to that, her mother had already testified, and had informed the Court that RCwas born on 5th May, 2014.

21. Considering that the Complainant’s mother testified on 3rd February 2020, that implies that RCwas about 3 months shy of her 6th birthday, as at the date when the trial was ongoing.

22. The record of proceedings shows that the learned trial magistrate conducted a voire dire examination of the minor, who was of a very tender age.

23. An analysis of the evidence on record reveals that the evidence of the minor was corroborated by the evidence of the Clinical Officer (PW1). He testified that the panty of the child was stained with blood, and also that the child had injuries on her vagina.

24. PW1said that;

“There was clotted blood-stains at the lower side of the vagina. The child’s hymen was freshly torn, and the torn (sic!) was fresh. The internal vagina had bruises.”

25. He went on to explain that the presence of pus cells and blood clot, signified penetration.

26. I also find that the Complainant’s mother also provided further corroboration. She told the trial court that when she examined the child, she noted blood stains on her underpant.

27. The said underpant was adduced in evidence.

28. In effect, there was ample corroboration of the evidence tendered by the minor.

29. Accordingly, there was no merit in the Appellant’s contention that he was convicted on the basis of an unsworn evidence from a minor, whose evidence was not corroborated.

30. When the Complainant’s mother testified, she said, inter alia, that she beat up the Complainant, in order to extract from her, “the truth”. The Appellant submitted that the evidence of the Complainant had been obtained through degrading punishment.

31. The Appellant further submitted that the mother of the Complainant had told the daughter what the daughter should tell the court. In his view, the degrading punishment and the actions of the Complainant’s mother gave rise to an invented story.

32. I have carefully perused the evidence on record, but I found nothing to support the Appellant’s suggestion, that the mother of the Complainant had told the minor what she should tell the court.

33. I find that the sole reason why the Complainant’s mother beat her up, was that the minor had declined to open up and tell her the truth about what had transpired.

34. Indeed, when the minor was being cross-examined, she said’

“It is true my mother beat me up, so that I say what happened.”

35. Until that stage, it is evident that the mother’s only wish was to be informed about what had transpired.

36. However, it is not lost on me that the minor also said;

“My mother told me what to come and say in court.”

37. That particular piece of evidence could be open to more than one possible interpretation. It might mean that the minor told the court what her mother had instructed her to say. But it might also mean that, after her mother had learnt about what had happened, the mother told her to give the same information to the court.

38. However, I take note of the fact that the Clinical Officer who examined the Complainant, found clear evidence that confirmed that the minor had been defiled. That was evidence which was not made up. It was not concocted. It was real tangible evidence.

39. In the light of the said evidence, I understand the Complainant to have meant that her mother had told her to tell the court about what had transpired.

40. Something that is verifiable and was verified through physical examination of the minor, was not a figment of her imagination.

41. As the evidence of defilement were real, it cannot be said that the said evidence was procured through the punishment which the Complainant’s mother meted out upon the said Complainant.

42. The Complainant’s mother had already seen the evidence on the person of her daughter. She only wanted to find out from the Complainant, about the identity of the person who had committed the act.

43. From the evidence on record, it can be seen that the Complainant told her mother that it was the Appellant who committed the offence. At this time when the Complainant was disclosing the identity of her molester, the Appellant was present.

44. During cross-examination of the Complainant’s mother, the Appellant did not raise any questions concerning either his presence when the Complainant identified him as the offender, or when the Complainant’s mother testified that he (the Appellant) was putting on his trousers when the Complainant’s mother returned to the house wherein the offence was committed.

45. I find that the evidence tendered by the Complainant’s mother corroborated the evidence of the minor.

46. In the case of KASSIM ALI Vs REPUBLIC, CRIMINAL APPEAL NO. 84 OF 2005 (at Mombasa), the Court held as follows;

“The absence of medical examination to support the fact of rape is not decisive, as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence.”

47. That legal pronouncement is applicable mutatis mutandisto a case in which the accused was charged with the offence of defilement.

48. In the case of FAPPYTON MUTUKU NGUI Vs REPUBLIC, CRIMINAL APPEAL NO. 32 OF 2013, the Court of Appeal said;

“The evidence of the minor witnesses squarely placed the appellant as the one who defiled PW2. It cannot therefore be said that there was no evidence that would link him to the crime. This ground of appeal is therefore baseless and is accordingly rejected.”

49. From the evidence tendered by the Complainant and her mother, I find that all the elements of the offence of defilement had been proved beyond any reasonable doubt.

50. But whilst the prosecution supplied the accused with all the documents which they were going to rely on in the case, the prosecution did not supply the statement of the Clinical Officer.

51. In my considered opinion, the P3Form and the PRCForm, effectively constituted the Statement of the Clinical Officer. Therefore, I find no merit in the Appellant’s contention that the prosecution had violated his Constitutional rights as enshrined in Article 50 (2) (j)of the Constitution.

52. Finally, on the question of the right to have legal representation, Mrima J. had occasion to hold as follows, in the case of S. K. Vs REPUBLIC, CRIMINAL APPEAL NO. 36 OF 2019, at Migori;

“From the wording of Article 50 (2) (h), the right therein is not absolute, as thecourt must first satisfy itself that substantial injustice may result, before it enforces the said right.”

53. In that case, the Appellant was partially blind at the time when the offence was committed. By the time when the Appellant was on trial, he had completely lost his ability to see.

54. Although that Appellant was provided with Witness Statements, he was not accorded the necessary assistance which would have enabled him to become aware of the contents of the said Witness Statements.

55. The learned Judge noted that when the Appellant was first presented before the trial court, he informed the said court about his disability.

56. In the circumstances, the learned Judge held that the Appellant ought to have been treated differently, so as to accommodate the challenges he faced during the trial.

57. As the trial court had not accorded different and appropriate treatment to the Appellant, the High Court held that the Appellant had not been accorded a reasonable opportunity and facilities to prepare his defence, and to counter the prosecution evidence.

58. It was held that the trial was vitiated.

59. The appellate court then considered whether or not to order for a retrial. However, it came to the conclusion that a retrial would not meet the ends of justice, as there was uncertainty about how and about the pace of such retrial. The Appellant in that case, had been in custody all along during the trial and the appeal. And the learned Judge was of the view that the Appellant might have to take time to learn braille language, so that he could follow the proceedings.

60. Ultimately, the Court was clear that its decision should not apply to cases of all accused persons who were blind.

61. The Court emphasized that the decision was based upon the peculiar circumstances of the case.

62. In the case before me, the Appellant has not satisfied me that substantial injustice was occasioned to him, by virtue of the failure to have an advocate appointed for him by the State.

63. The Court of Appeal held as follows, in the case of DAVID NJOROGE MACHARIA Vs REPUBLIC, CRIMINAL APPEAL NO. 497 OF 2007;

“We should not go so far as to suggest that every accused person convicted of a capital offence, since the coming into effect of the new Constitution would automatically be entitled to a retrial where no such legal representation wasprovided.”

64. Those words were quoted from the provisions of the ICCRR and the commentaries by the Human Rights Committee.

65. If persons who were charged with capital offences would not automatically be entitled to have an advocate appointed for them by the State, and at the expense of the State, I would add that persons who were on trial for offences that do not attract the death penalty; (such as in this case) cannot automatically be entitled to legal representation at State expense.

66. In the case of THOMAS ALUGHA NDEGWA Vs REPUBLIC CRIMINAL APPEAL NO. 2 OF 2014, the Court of Appeal expressed itself thus;

“…….. it is clear the framework for full implementation of Article 50 (h) is now in place as required by the Constitution.

Section 40 of the Legal Aid Act requires that a person who wishes to receive legal aid may apply to the Legal Aid Service, in writing, so long as such an application is made before the final determination of the matter by a court, tribunal or any other forum to which the application relates.”

67. In that case the Appellant/Applicant was serving a life sentence. The learned Judges of Appeal held that the said Appellant was eligible to make an application for legal aid.

68. In the same vein, I hold that the Appellant, who is serving a sentence of 40 Years imprisonment is eligible to make an application to the Board of the Legal Aid Service, seeking legal aid.

69. The Service would then give due consideration to the application, in the event that the Appellant might be desirous of lodging a further appeal or any other proceedings arising from his conviction.

70. In the final analysis the appeal is without merit and it is therefore dismissed, in its entirety.

DATED, SIGNED AND DELIVERED AT KISUMUTHIS 3RD DAY OF FEBRUARY, 2022

FRED A. OCHIENG

JUDGE