REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE CRIMINAL APPEAL NO 158 OF 2011 JOSEPH ALOME…………………………………………………APPELANT VS REPUBLIC…………………………………………………….RESPONDENT (Appeal from the Judgment of the Resident Magistrate, Kapenguria dated 14th November 2011 in Criminal Case No 814 of 2008) JUDGMENT Introduction The Appellant, JOSEPH ALOME was charged with defilement of a child contrary to Section 8(1) (2) of the Sexual Offences Act No 3 of 2006. The particulars of the charge were that on the 6 th Day of November 2008 at [particulars withheld] Village in West Pokot County, the Appellant intentionally caused his penis to penetrate the vagina of M C, a child aged 9 years. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006 the particulars being that on the 6 th Day of November 2008 at [particulars withheld] Village in West Pokot County, the Appellant intentionally touched the vagina of M C, a child aged 9 years with his penis. In the course of the trial, the Prosecution on application was allowed by the trial court to amend the charge. The facts of the case as recorded by the trial court are that on 6th November 2011 at around 3.30 p.m, the Appellant was hired by the Complainant’s mother, M H to take the Complainant, M C on his bicycle to her aunt, M C. On the way, the Appellant pulled the Complainant from the bicycle took her to a nearby bush and defiled her. The Appellant then abandoned the Complainant who walked to her aunt’s home and reported what had befallen her. M C referred the matter to the Complainant’s mother. The Complainant was examined at Kapenguria District Hospital seven (7) days after the incident and the examining doctor formed the opinion that the Complainant had been partially defiled. The Appellant denied the charge, stating that he took the Complainant safely to her destination as instructed by her mother. He was tried and convicted at the Principal Magistrate’s Court at Kapenguria and sentenced to life imprisonment on the main charge. The alternative charge was left to run in abeyance. The Appellant’s Appeal Being aggrieved by both conviction and sentence, the Appellant filed a Petition of Appeal on 22 nd November 2011, raising the following Grounds of Appeal:
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a. That the learned trial Magistrate erred in failing to take into account that the Complainant had been defiled by one Dominic Yego who was facing similar charges as those facing the Appellant, before another Magistrate; b. That the learned trial Magistrate erred in law and fact by relying on the evidence of PW 2 which was an afterthought; a. That the learned trial Magistrate erred in law and fact in relying on the contradictory evidence adduced by the Prosecution; b. That the learned trial Magistrate erred in law and fact in relying on the evidence of PW 5 which was not sufficient to warrant such a harsh sentence; c. That the learned trial Magistrate erred in law by shifting the burden of proof to the Appellant. The Appeal was heard on 16th October 2013 with Mr. Chebii appearing for the Appellant and Mr. Kimanzi for the State. Counsel for the Appellant submitted that the charge sheet on which the Appellant was convicted was defective since there was no provision known as Section 8(1)(2) in the Sexual Offences Act No 3 of 2006. The particulars of the charge were also defective since the word “unlawful” was missing. Mr. Chebii further submitted that the age of the Complainant was not established as there was no age assessment report. There were also material contradictions in the testimony of prosecution witnesses particularly with regard to the date the alleged offence was committed and the date when the Appellant was arrested. Moreover from the P3 form, there was no conclusive evidence of defilement as there were no lacerations, tears or scars and there was no presence of spermatozoa on the Complainant’s vagina. Counsel took issue with the amendment of the charge sheet when the Clinical Officer was testifying and pointed out that the Appellant was not given an opportunity to recall the other prosecution witnesses for further cross examination. Opposition by the State Mr. Kimanzi learned State Counsel opposed the appeal noting that Section 8(1) of the Sexual Offences Act defines the offence of defilement while Section 8(2) prescribes the punishment. Any error on the charge sheet was curable under Section 382 of the Criminal Procedure Code. With regard to the issue of amendment of the charge in the course of the trial, Mr. Kimanzi submitted that under Section 214(1) of the Criminal Procedure Code the Prosecution is at liberty to amend the charge sheet at any time before close of its case. On the probative value of the evidence adduced by the Prosecution, Counsel submitted that the Complainant identified the Appellant out of many other bicycle (boda boda) operators as the person who had defiled her while PW 2 identified the Appellant as the person she had hired to take the Complainant to the home of PW3. On the issue of the age of the Complainant at the time of defilement, Counsel submitted that her age was confirmed in the P3 form as 9 years. The omission of the date on the P3 form did not affect its substance. On the evidence of defilement, PW 5 testified that although the Complainant was examined 7 days after the incident, partial penetration was established. Findings and Determination This appeal is somewhat unique as the charge sheet was amended at the tail end of the prosecution case, when the Clinical Officer was giving evidence. Moreover, there exists a similar case in criminal case number 539 of 2007 with the same Complainant but a different accused person, one Dominic Yego. From
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the record, the Appellant’s application to have the file in Criminal Case Number 539 of 2007 produced was declined by the trial court. While Section 214 of the Criminal Procedure Code offers the Prosecution the right to amend a charge facing an accused person at any time before closure of the Prosecution case, the accused person must be given the opportunity to recall any or all the witnesses for purposes of cross examination. From the record, the Appellant was not denied this right but it was not offered to him either. In his judgment the trial Magistrate stated that: “The court is an impartial arbiter. It is not my duty to tell parties what they should do procedurally. If accused felt like recalling PW 1, he was at liberty to do so. He did not. He waited until the court ruled he has a case to answer is (sic) when he engaged a lawyer.” It is true that the court is an impartial arbiter. However, the court is also a custodian and protector of the rights of all, including the rights of accused persons. In my view, the trial court was under a duty to notify the Appellant of his rights under Section 214 of the Criminal Procedure Code, especially because the Appellant was unrepresented at the time the charge was amended. I find that in failing to notify the Appellant of the rights available to him, the trial court occasioned a miscarriage of justice. I further find that in refusing production of the file in Criminal Case Number 539 of 2007, the trial court locked out crucial evidence. Ultimately, I find that this is a proper case for retrial which is hereby ordered. In the circumstances, I make no finding on all the other grounds of appeal. DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF NOVEMBER 2013 LINNET NDOLO JUDGE DELIVERED IN OPEN COURT AT KITALE THIS 6TH DAY OF NOVEMBER 2013 J.R KARANJA JUDGE In the Presence of: ..................................................................................................................Appellant …...........................................................................................................Respondent
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