REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET CRIMINAL APPEAL NO. 157 OF 2014 BISMACK LUSABA …………. APELLANT VERSUS REPUBLIC …………............... RESPONDENT (An Appeal from the Judgment of the Resident Magistrate Honourable C. Wattimah in Kapsabet Criminal Case No. 946 of 2011, dated 14th October, 2014) JUDGMENT 1. The appellant Bismack Lusaba was tried and convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. 2. The particulars of the charge alleged that on 14th May, 2011 in Nandi County, he unlawfully caused his penis to penetrate the vagina of C C (Name withheld) a child aged 6 years. 3. Following his conviction, he was sentenced to life imprisonment. He was aggrieved by his conviction and sentence hence this appeal. In his amended grounds of appeal filed on 23 rd March, 2017, the appellant raised ten complaints which can be condensed into the following three grounds; i. That he was wrongly convicted on contradictory and incredible evidence which was not sufficient to prove his guilt as charged beyond any reasonable doubt. ii. That the conviction was based on irregular proceedings which did not contain a record of how he took his plea. iii. That the learned trial magistrate erred in law by failing to comply with the provisions of Section 211 of the Criminal Procedure Code. 4. At the hearing, the appellant who prosecuted the appeal in person chose to entirely rely on written submissions which he filed together with his amended grounds of appeal. In his submissions, the appellant reiterated his grounds of appeal and emphasized that the trial magistrate erred by basing his conviction on the evidence of PW1, a minor whose evidence was contradicted by the evidence of PW2 and PW4; that the proceedings on whose foundation the conviction was based were faulty as his plea was not recorded; that the charge was not proved beyond any reasonable doubt as penetration was not proved and crucial witnesses were not called and that he was framed with the offence. He urged the court to find merit in the appeal and allow it.
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5. The state contests the appeal. Learned prosecuting counsel in her opposition to the appeal submitted that the appellant was properly convicted as every element of the offence was proved beyond any reasonable doubt; that the original record of the trial court confirmed that the accused took his plea and that the proceedings were regular. She invited the court to dismiss the appeal for lack of merit. 6. This is a first appeal to the High Court. As such, this court being the first appellate court is duty bound to re-evaluate all the evidence presented to the trial court and arrive at its own conclusions regarding the validity or otherwise of the appellant’s conviction. In doing so, the court should remember that it did not have the benefit of hearing or seeing the witnesses and give due allowance for that disadvantage. See: Okeno V Republic (1972) EA 32; Kinyanjui V Republic (2004)2 KLR 364; Patrick & Another V Republic (2005)2 KLR 162. 7. I have carefully considered the evidence on record; the amended grounds of appeal; the judgment of the learned trial magistrate and the rival submissions made by the appellant and the state. 8. Having done so, I wish to deal first with the appellant’s complaint that the proceedings were irregular as his plea to the charge was not recorded. I note that though the typed copy of the proceedings of the trial court does not contain the proceedings in which the appellant took his plea, the original record of the court shows clearly that the appellant took his plea on 16th May, 2011 and pleaded not guilty to the charges. A plea of not guilty was subsequently entered and a hearing date set. The case was thereafter fully heard culminating into the challenged conviction. I therefore find that the appellant’s claim that the proceedings were flawed as his plea was not recorded both misconceived and misplaced. Nothing therefore turns on that ground of appeal. 9. Turning to the appellant’s complaint that the trial magistrate erred in not complying with the provisions of Section 211 of the Criminal Procedure Code, my reading of the lower court’s record reveals that on 6 th august 2014 when Hon C. Watimmah (RM) formally took over the case from Hon. B. Limo (RM), the appellant had already been placed on his defence. 10. The record does not reflect that the learned trial magistrate (Hon. C. Watimmah) read and explained to the appellant in a language he understood his rights both under Section 200 and Section 211 of the Criminal Procedure Code (CPC). The record only shows the appellant’s election that he wished to have the case continue from where the previous magistrate had stopped; that he wanted to give unsworn evidence in his defence and that he did not have witnesses. 11. Though from the above record it can be assumed or inferred that the accused had been informed of his rights under Section 200 and Section 211 of the CPC, these two provisions of the law leave no room for assumptions or presumptions. They are coached in mandatory terms and for good reason because they contain important safeguards of the right of an accused person to a fair trial. 12. The learned trial magistrate ought to have shown on record that she had actually complied with these two provisions of the law. It is possible that the trial court did infact explain to the appellant his rights under both Section 200 and Section 211 of the CPC and this could be why the appellant made the choices he did but it is impossible for an appellate court to verify that this was infact done when it is not reflected on the court record. 13. It is also not clear from the record whether the appellant had opted not to call witnesses in his defence or whether the position was that he did not have witnesses to call on that particular day. This is further compounded by the fact that after giving his evidence, the appellant is not shown to have closed his case. Instead, the court on his own motion closed the appellant’s case and proceeded to fix a judgment date. The trial court did not record its reasons for taking such a drastic step without any indication whether or not the appellant wished to have an opportunity to call witnesses. This together with the learned trial magistrate’s failure to indicate on record whether the provisions of Section 200 and
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Section 211 of the CPC had been complied with are serious procedural errors which in my view materially prejudiced the appellant. They compromised his right to a fair trial and may have occasioned a miscarriage of justice. They are errors which are not curable under Section 382 of the CPC as they go to the core of the requirements of a fair trial. It is therefore my finding that they are sufficient to vitiate the appellant’s conviction. 14. Given my aforegoing finding, I do not find it necessary to deal with the other complaints made by the appellant in this appeal. In the result, it is my finding that the appeal is merited and it is hereby allowed. 15. Having allowed the appeal, I have agonized over whether to acquit the appellant or to order a retrial. The law is that a retrial will be ordered when the interests of justice requires it taking into account the circumstances of each case including the nature of the offence and the evidence on record. See: Muiruri V Republic (2003) KLR 522; Mwangi V Republic (1983) KLR 522; Fatekali Manji V Republic (1966) EA 343. 16. In this case, I have considered the fact that the appellant’s conviction has been vitiated solely by errors made by the trial court and not the prosecution. I have also taken into account the seriousness of the offence which faced the appellant and the evidence on record. The record shows that the appellant was sentenced on 14 th October, 2014 which is about three years ago. In my view, a retrial will not occasion him much prejudice. 17. Given the foregoing, I find that a retrial will best serve the interests of justice in this case. Consequently, I remit this case to the lower court for retrial before any competent court other than one presided over by C. Wattimah (Resident Magistrate). The appellant shall be released into police custody and shall be produced before the Principal Magistrate’s court at Kapsabet on 17th October, 2017 for plea and further orders. C.W GITHUA JUDGE DATED, SIGNED and DELIVERED at ELDORET this 12th day of October, 2017 In the presence of: Appellant Ms Mokua for the state Lobolia – court clerk
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