John Nyaga v Republic

Appellant’s constitutional rights were violated when he was held in police custody for more than 24 hours before he was taken before a Court of law for plea. 5. That the learned trial Magistrate erred in law and fact when he failed to consider that no DNA test was conducted. A summary of the facts reveals that PW1 aged 16 years had a quarrel with her mother on 27/8/2011. She left and did not spend the night at home. The next day she went to Kwamurindi where she met the Appellant and explained to him the problems she was facing. She went to her aunt’s home. On a day she could not recall she met the Appellant who advised her to go and stay at her aunt’s place. She then went to stay with the Appellant for three (3) days. Her father found her with the Appellant and took her to the Police station. A birth certificate (EXB2) showed she was born on 8/3/1996. During the time she was with the Appellant they had sex together. The examination by the Doctor (PW3) shows that PW1’s genitalia was normal and she had no discharge. Her conclusion was that she was sexually active (PEXB3). In his defence the Appellant while under oath stated that he was aged 22 years. He said he met PW1 and as they conversed, her father (PW2) came and had him arrested and taken to the Police Station. He denied having had any intimate relationship with PW1. When the appeal came for hearing the Appellant presented the Court with written submissions which basically expounded on his grounds of appeal. He submitted that the charge sheet was defective and further the Doctor’s evidence was not conclusive. M/s Ing’ahizu the learned State Counsel conceded the appeal but asked for a retrial. She took issue with the charge sheet saying the Appellant had been sentenced under the wrong section as the birth certificate showed she was 15½ years while the charge sheet showed she was 16 years. To her this was a contradiction which ought to have been resolved before the Judgment was delivered. This is a first appeal Court which is enjoined to reevaluate the evidence on record and come to its own conclusion. In the case of BORU & ANOTHER –V- REPUBLIC [2005]1 KLR 649 the Court of Appeal held thus; “A duty is imposed on a Court hearing a first appeal to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the Judgment of the trial Court should be upheld, as well as to deal with any questions of law raised on the appeal”. It also stated the following in SIMIYU & ANOTHER –V- REPUBLIC [2005]1 192 “It is the duty of the first appellate Court to reconsider the evidence, evaluate it and draw its own conclusions in order to satisfy itself that there is no failure of justice. It is not enough for the first appellate Court to merely scrutinize the evidence to see if there was no evidence to support the trial Court’s findings and conclusions”. I have considered the submissions by both the Appellant and the State as well as the grounds of appeal. I have also keenly reevaluated the evidence on record. The State is conceding the appeal on account of the charge sheet. The Birth certificate produced herein (EXB2a) showed that the complainant was born on 8th March 1996. The date of offence was 27/8/2011. This clearly shows that when the offence allegedly took place PW1 was 15 years 5 months and 19 days. She was not yet 15½ years. She would therefore be closer to the Provisions of section 8(3) Sexual Offences Act than section 8(4) Sexual Offences Act. This is because the Sexual Offences Act does not provide for the category between 15 years – 16 years. The age of the complainant having been established I do not find failure to indicate the correct penalty section to be fatal and/or prejudicial to the Appellant. I will therefore proceed to deal with the appeal on its merits. Ground 3 This has no basis. The Appellant in his defence said he was aged 22 years. That is not the age of a

page 2 of 4

minor. Ground 4 The record shows he was arrested on 1/9/2011 and was arraigned in Court on 5/9/2011. The calendar confirms that 1/9/2011 was a Thursday. The latest the Appellant should have been arraigned in Court was 2/9/2011. However this was not the case. He was instead arraigned in Court on 5/9/2013 which was a Monday. The learned trial Magistrate did not find out from the Prosecution the cause of the delay. The Prosecution did not also attempt to give any explanation. However considering the seriousness of the charge the Appellant faced it would not be in the interest of justice to allow the appeal on account of only 24 hours delay. The Appellant is at liberty to pursue the issue before the right forum. I will consider ground 2 and 5 simultaneously. PW1’s evidence is what the Court relied on to convict the Appellant. Was this evidence credible? Section 124 of the Evidence Act provides; “Corroboration required in criminal cases notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth” PW 1 walked out on her parents on 27/8/2011. She does not indicate where she went. Her father (PW2) stated that on 30/8/2011 one Gladys Mbui came with PW1 home and explained that PW1 had spent at her place. Gladys did not testify to explain when PW1 spent at her place. After being brought home she again took off. She was next seen on 1/9/2011 when at a quarry with the Appellant. Both of them were then arrested. PW2 stated that when PW1 and Appellant were arrested the latter was carrying PW1’s clothes. What was he doing with PW1’s clothes if they were supposed to have been living together? From her own evidence PW1 did not go to the Appellant’s soon after she disappeared from home. She states at page 7 line 25 – page 8 lines 1-4. “On 27/8/2011, I went to the shop which my mother was operating at Kwamurindi. My mother was quarrelling that I was after a man. I decided to leave however I spent within the compound. On the following day I went to Kwamurindi. I met the accused and I explained to him the problems I was facing. I went to my aunt’s place as I was not accepted at home. There was a time I met the accused on a day I cannot remember. The accused was working near a road. The accused advised me to go to my aunt’s place. I went and stayed with him for three (3) days.” PW1 cleverly avoided to tell the Court when she met the Appellant and went to stay with him. She said on 27th she spent within the compound but not at her parents. Within the compound did not mean with the Appellant. And if she left on 28th then she did not go to the Appellant’s because when she met him she only told him her problems and went to her aunt’s place. This aunt whom I want to believe is the Gladys talked about by PW2 then brought her home on 30/8/2011 before she took off. She was away on 31/8/2011 and was arrested on 1/9/2011 at a quarry with the Appellant carrying her clothes. So when did she even go to the Appellant’s place to spend two (2) days and two (2) nights? Which were these days? The particulars in the charge sheet state that the Appellant defiled PW1 on 27 th August 2011. A narrative of the evidence above clearly shows PW1 could not have been with the Appellant on 27 th – 30th August 2011. And if she was with him thereafter it is not borne by the evidence. The other element is the medical evidence. PW3 stated this at page 9 lines 11-16;

page 3 of 4

“I examined Winfred Wanja on 1/9/2011. She alleged to having been defiled by her boyfriend. I was to ascertain the degree of injury. The girl gave a history of having been married for one week. Her head and neck were normal, thorax and abdomen were okay. The genitalia was normal and no discharge was seen. She came to our facility a week after the alleged incident. I filled the P3 form on 15/9/2011. She was first seen on 1/9/2011”. Clearly this evidence does not support the story given by PW1. The learned trial Magistrate simply found PW1 to be sincere and he believed her. However after my analysis of the evidence I have found PW1 to be an unreliable witness. In the case of KIILU –V- REPUBLIC [2005]1 KLR 174 the Court of Appeal held; “The witness upon whose evidence it is proposed to rely should not make an impression in the mind of the Court that he is not a straight forward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.” PW1’s evidence was key in this case. And having found her evidence to be unreliable, I need not go further. I allow the appeal. The conviction is quashed and sentence set aside. Order for retrial is declined. The Appellant to be released unless otherwise lawfully held under a separate warrant. DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 7 TH DAY OF NOVEMBER 2013. H.I. ONG'UDI JUDGE In the presence of; M/s Ing’ahizu for State Appellant Njue – C/c

page 4 of 4