Idd Mohamed Kagia v Republic & 1 other

§ § Violation of his fundamental rights guaranteed by S. 72(3) (b) of the (old) Constitution Insufficiency of Evidence On the first ground the Appellant submits that he was not arraigned before a court within 24 hours as required by the Constitution of Kenya. I have no doubt that the Appellant is referring to the old Constitution which contained this stipulation. I have perused the record and I note that the Appellant was arrested on 13th November 2008 and was not taken to court until 17th November 2008 which was 4 days later clearly the provisions of S. 72(3) (b) were breached in that the Appellant was not taken to court within 24 hours. The Appellant submits that this delay nullified his subsequent trial and entities him to an acquittal. However I do not agree with this submission. As courts we have to balance on the one side the preservation of a suspect’s pre-trial rights and on the other hand the public interest in having all reported crimes tried to their logical conclusion. This was the gist of the ruling of the Court of Appeal in the case of ELUID NJERU NYAGA –VS-REPUBLIC Criminal Appeal 182/2006, where it was held at p.2 “While we would reiterate the position that under the fair-trial provisions of the Constitution, an accused person must be brought to court within twenty-four hours for non-capital offences and within fourteen days for capital offences, yet it would be unreasonable to hold that any delay must amount to a constitutional breach and must result in an automatic acquittal.” The test is whether the delay complained of was so inordinate as to result in a denial to a fair trial. A look at the calendar reveals that 13th November 2008 fell on a Friday whilst 17th November 2008 fell on a Monday. Therefore part of this 4 day period of delay consisted of the intervening week-end. It is common knowledge that courts in Kenya do not hold sessions on either Saturday or Sunday. The actual period of delay was therefore only one day. The Appellant was taken to court on the first Monday following the week-end. In my view a delay of a single day cannot be termed inordinate. I therefore dismiss this first ground of the Appeal. The complainant narrated to court how she was defiled. Being a child of tender years the trial magistrate took the precaution of conducting a ‘voire dire’ examination before taking her evidence. His finding was that the child understood the nature of an oath and she therefore gave sworn testimony. She told the court that on the material date at 10.00 A.M. she was alone at their home, her mother having gone out to the farm. The Appellant who was their herdsman came in. He went right into the bedroom where the Appellant was. In her own words at page 3 line 13 “I went to the bedroom. The accused who takes care of our goats entered the bed-room. He lay me on the floor. He removed the panties I was wearing. The accused then started having sexual intercourse with me. The accused had just unzipped the pair of long trousers he was wearing. He removed his penis and inserted it in my vagina. I felt pain. The accused told me not to scream or he would beat me.” The complainant here gives a very vivid account of her ordeal. Such a detailed account can only be the truth. A ten (10) year old child is too young to be able to fabricate such a tale. The complainant’s evidence is corroborated by PW2. She told the court that she had gone to see the complainant’s mother. The door was open and PW2 walked right into the house. She found the Appellant in the very act of defiling the child. Indeed this is one of those very rare occasions when a sexual offence is witnessed by a third party. PW2 says when she walked in “The accused was on top of the girl. The accused had unzipped his pair of long trousers. His penis was visible …. the girl was not wearing panties” This is a very incriminating scenario. Why would an adult man by lying on top of a ten year old girl with his trouser unzipped and his penis exposed? The only logical conclusion is that he was raping the girl. PW2 called the complainant’s brother PW3 and told him what she had seen. They also reported the matter to the complainant’s mother V.J, when she came home. Conclusive corroboration of the complainant’s claim of having been raped is provided by the evidence of the doctor PW6 DR. MIKE SANGOLO from Taveta District Hospital. He gave evidence that he examined the complainant and filled out her P3 form which he produced as an exhibit before the lower court Pexb1. He noted ‘fresh bruises’

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on both her labia and her hymen had been ‘freshly broken’. The bruises on the labia are proof of forcible penetration whilst the broken hymen is proof that penetration did actually take place. At page 8 line 1 PW6 concludes his evidence thus “I concluded penetration of the girl’s genitalia had occurred.” This is professional medical evidence and confirms that the complainant was indeed defiled as she stated. On the identity of her assailant the complainant identified the Appellant as the man who raped her. The incident occurred at 10.00 A.M. in broad daylight and the two were together in the bed-room for a fair amount of time. The complainant had ample time and opportunity to see the Appellant. PW2 who caught the Appellant ‘pants down’ so to speak also identified him in court. PW2 held onto the Appellant’s hand to prevent him running away. She called out to PW3 who came and found the Appellant being detained in the room by PW2. He too identified the Appellant in the lower court. All the prosecution witnesses PW1, PW2, PW3 and PW4 knew the Appellant before this incident as he was a herdsman in the village. In the case of ANJONONI & OTHERS –VS-REPUBLIC 1980 KLR the Court of Appeal held that “recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” Similarly I find that in this case the identification of the Appellant was made on the basis of recognition, thus there was no possibility of mistaken identity. I find that there was clear positive and reliable identification of the Appellant as the man who raped the complainant. I am satisfied that the prosecution did prove their case beyond a reasonable doubt. The Appellant’s defence that the charge was fabricated by the villagers because they owed him money for herding their livestock is just not credible. Why would PW1 a mere child be involved in payment disputes with the Appellant? Likewise PW2 was not related to PW1. She was merely a visitor to the home. She had no possible motive to fabricate evidence against the Appellant. This conviction was sound both on facts and in law and I do hereby confirm the same. The Appellant was accorded an opportunity to mitigate. Thereafter the trial court sentenced him to serve twenty (20) years imprisonment. The Appellant submits that this sentence was excessive given his advanced age. However the learned trial magistrate did take into account the Appellant’s age when sentencing and stated at pg. 2 line 27 “Court: Accused is liable to life imprisonment but due to his advanced age, he is sentenced to serve twenty years imprisonment.” Given the tender age of the victim and the heinous nature of the crime committed against her I find this sentence to be both lawful and appropriate. I therefore uphold the same. Finally this appeal fails in its entirety. The conviction and sentence of the lower court are hereby confirmed and upheld. Dated and Delivered in Mombasa this 21st day of October 2010. M. ODERO JUDGE Read in open court in the presence of:Appellant in person Mr. Muteti for State M. ODERO JUDGE 21/10/2010

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