REPUBLIC OF KENYA IN THE HIGH COURT AT HOMA BAY CRIMINAL APPEAL NO. 10 OF 2015 (FORMERLY MIGORI HCCRA NO. 10 OF 2015) BETWEEN PAUL ODHIAMBO OLOO ………..……………………………………………….. APPELLANT AND REPUBLIC …………….....…………………………………………………………… RESPONDENT (Being an appeal from the original conviction and sentence in Criminal Case No. 459 of 2014 at the Senior Resident Magistrates Court at Ndhiwa, Hon. B.O. Omwansa, RM dated 23rd January 2015) JUDGMENT 1. The appellant, PAUL ODHIAMBO OLOO, was charged and convicted of the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act, 2006. The particulars of the charge were that on the 8th October 2006 in Ndhiwa District of Homa Bay County he intentionally caused his penis to penetrate the vagina of DA, a child aged 9 years. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act based on the same facts. The court sentenced him to life imprisonment. 2. Although several grounds of appeal were raised, I will only deal with one issue necessary to dispose of this appeal. The appellant raised the ground that the complainant was not called as a witness to the offence. It was the prosecution case that she was dumb and could not speak. The charge sheet states that she was of unsound mind. The record does not reflect that there was an examination of the complainant or a finding by the learned magistrate that the child could not testify or answer questions either directly or through an intermediary or that she was of unsound mind as stated in the charge. In effect the appellant was denied an opportunity to cross examine the complainant. This is not to say that in all instances, a child or other vulnerable person must testify or that in fact, the complainant must testify in all cases. Whether the child testifies depends on the circumstances of each case but the trier of fact must make that determination one way or another. 3. Sections 125 and 126 of the Evidence Act (Chapter 80 of the Laws of Kenya) dealing with competence of witnesses and dumb witnesses provides as follows; 125. (1) All persons shall be competent to testify unless the court considers that they
page 1 of 3
are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause. (2) A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them. 126. (1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but such writing must be written, and the signs made, in open court. (2) Evidence so given shall be deemed to be oral evidence. 4. The issue is in this case is whether the complainant was prevented from giving any rational answers in an intelligent form as provided in section 125 and 126 of the Evidence Act. This matter was neither tested nor determined by the learned magistrate. In the circumstances, I am inclined to quash the conviction and sentence. 5. I now turn to whether I should order a retrial. The principles governing whether the court should order a retrial were stated by the East Africa Court of Appeal in Fatehali Manji v Republic [1966] EA 343 as follows; In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person. 6. In Muiruri v R [2003] KLR 552, the Court of Appeal reiterated that: It [retrial] will only be made where the interests of justice require it and if it is unlikely to cause injustice to the appellant. Some factors to consider would include, but are not limited to, illegalities or defects in the original trial, …. the length of time which has elapsed since the arrest and arraignment of the appellant; whether the mistakes leading to the quashing of the conviction were entirely of the prosecution’s making or the court’s. 7. Likewise in Mwangi v Republic [1983] KLR 522, 538,the Court of Appeal reiterated that: a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible, evidence a conviction might result. 8. Having perused the record in this appeal, I find and hold that it is in the interests of justice to order a retrial. The trial was concluded in January 2015 and it was not contended by the prosecution that the witnesses could not be found. The learned magistrate made a procedural mistake and, without commenting on the evidence, I find that there is sufficient evidence to support a conviction. 9. I allow this appeal and quash the conviction and sentence. The appellant shall be retried by another other magistrate other than Hon. Omwansa, SRM. I further order that the trial shall be completed within 6 months. The appellant shall be taken for a fresh plea before the Ndhiwa Senior Resident Magistrate’s Court on 21st October 2015. In the interim, he shall remain in custody. DATED and DELIVERED at HOMA BAY this 19th day of October 2015.
page 2 of 3
D.S. MAJANJA JUDGE Mr Marwa instructed by Kerario Marwa and Company Advocates for the appellant. Mr Oluoch, Senior Assistant Director of Public Prosecutions, instructed by the Office of Director of Public Prosecutions for the respondent.
page 3 of 3