Republic of Kennya v Republic & 1 other

some men who were singing in the company of children who were later released and that it was upon arriving at the police station that he was informed that he had defiled a child. 8. DW2, KIPNGENO ARAP KOECH testified that the appellant was arrested from his home on allegations that he had stolen a sheep only for the appellant to be charged with the offence of defilement upon reaching the police station. 9. Upon evaluating the evidence tendered by the prosecution and the defence, the trial magistrate convicted the appellant for the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act and sentenced him to serve 10 years imprisonment. 10. Aggrieved by both the conviction and sentence, the appellant filed the instant appeal and in which he mainly faulted the trial court for convicting him when the prosecution’s case was not proved to the required stands. 11. During the hearing of the appeal, Mr. Mose Nyambega for the appellant observed that even though the state had conceded to the appeal, it was necessary to highlight the main grounds of the appeal which were that the trial court did not observe and uphold the appellant’s right to a fair trial as guaranteed under Article 50 of the Constitution by failing to ensure that the complainant was further cross examined by the appellant despite the fact that the court had granted the appellant’s application to further cross examine the complainant. 12. Mr. Nyambega further argued that the appellant was convicted on the strength of evidence that was contradictory, inadequate and devoid of any evidential value. He further faulted the trial court for making an erroneous finding which he termed to be a travesty of justice. 13. In a rejoinder, Mr. Otieno counsel for the state conceded to the appeal on the grounds that the medical evidence tendered in support of the charge of defilement was defective and further, that the trial court did not ensure that its orders to recall the complainant for further cross-examination were complied with. 14. As the first appellate court, this court is under an obligation to re-evaluate and re analyze the evidence tendered before the trial court afresh so as to arrive at its own independent conclusion. (See Pandya vs Republic (1957) EA 3365. 15. In the instant case, I have perused the lower court’s proceedings and the evidence of all the witnesses as summarized hereinabove in this judgment. I note that on 3rd November 2015, the appellant applied to recall the complainant for further cross-examination which application was allowed by the trial court. 16. The said complainant did not however attend court for the intended cross examination and the trial court’s record does not show if there was any follow-up on the same or a reversal of the said order for recall of PW1. I find that the trial court’s failure to ensure that its order to recall PW1 was complied with amounted to the denial of the appellant’s right to fair trial as envisaged under Article 50 of the Constitution which stipulates as follows: “50. (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. (2) Every accused person has the right to a fair trial, which includes the right— (a) to be presumed innocent until the contrary is proved; (b) to be informed of the charge, with sufficient detail to answer it; (c) to have adequate time and facilities to prepare a defence;

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(d) to a public trial before a court established under this Constitution; (e) to have the trial begin and conclude without unreasonable delay; (f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed; (g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (i) to remain silent, and not to testify during the proceedings; (j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; (k) to adduce and challenge evidence; (l) to refuse to give self-incriminating evidence; (m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial; (n) not to be convicted for an act or omission that at the time it was committed or omitted was not— (i) an offence in Kenya; or (ii) a crime under international law; (o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted; (p) 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; and (q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law. (3) If this Article requires information to be given to a person, the information shall be given in language that the person understands. (4) Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice. (5) An accused person— (a) charged with an offence, other than an offence that the court may try by summary procedures, is entitled during the trial to a copy of the record of the proceedings of the trial on request; and

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(b) has the right to a copy of the record of the proceedings within a reasonable period after they are concluded, in return for a reasonable fee as prescribed by law. (6) A person who is convicted of a criminal offence may petition the High Court for a new trial if–– (a) the person’s appeal, if any, has been dismissed by the highest court to which the person is entitled to appeal, or the person did not appeal within the time allowed for appeal; and (b) new and compelling evidence has become available. (7) In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court. (8) This Article does not prevent the exclusion of the press or other members of the public from any proceedings if the exclusion is necessary, in a free and democratic society, to protect witnesses or vulnerable persons, morality, public order or national security. (9) Parliament shall enact legislation providing for the protection, rights and welfare of victims of offences.” 17. A perusal of the lower court’s record further shows that there is nothing to indicate why the witness was not recalled and I further find that this was a misdirection on the part of the court as this failure, as can be seen from the provisions of Article 50 cited hereinabove, was an affront on the appellant’s right to fair trial thereby vitiating the proceedings and the outcome of the trial considering that the conviction was mainly hinged on the evidence of the complainant. 18. In Harrison Mirugu Njuguna vs Republic Criminal Appeal No. 90 of 2004, the court of appeal held: “the right to hear the witnesses give evidence afresh on the amended charge or to cross examine the witnesses further is a basic right going other root of the trial.” 19. My above findings on the issue of failure by the trial court to give effect to the appellant’s rights to fair trial under the constitution would have been sufficient to dispose of this appeal, but I am still minded to determine the other issue raised by the appellant and the prosecution, while conceding to the appeal, which was the issue of contradictory evidence tendered by the prosecution. It was the appellant’s case that he was convicted on the strength of evidence that was contradictory, inadequate and of no value. This position was supported by the state, through Mr. Otieno, who observed that the medical evidence tendered in support of the charge was defective and contradicted the complainant’s testimony. The trial magistrate made the following remarks in her judgment regarding the medical evidence tendered by PW4: “PW4 thereafter produced a P3 form as an exhibit in the matter. I have looked at the P3 where the nature of offence is described as “attempted defilement and particularly the following remarks, ‘normal external genitalia, normal labias and no bruises seen. No evidence of penetration Hymen intact…” 20. In a sharp contrast to the above findings is the testimony of PW1 to the effect that the appellant actually had sex with her. My humble opinion is that the medical evidence tendered before the trial court did not support the prosecution’s claim that the complainant was defiled and as such, the trial court had no basis for making a finding that the appellant was guilty on the alternative charge of committing an indecent act with a child. 21. Having found that the trial court did not observe and uphold the appellant’s rights to fair trial and further, that the said court relied on insufficient and contradictory evidence in convicting the appellant, I

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find that the instant appeal is merited and I allow it. 22. Consequently I quash the appellant’s conviction, set aside the sentence and order that he appellant be set at liberty forthwith unless he is otherwise lawfully held. Dated, signed and delivered in open court this 9th day of November, 2017 HON. W. A. OKWANY JUDGE In the presence of: - Mr. Otieno for the State - Mr. Sagwe for the appellant - Omwoyo court clerk

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