Jackson Mulwa Kioko v Republic

e) That the court failed to adhere to Constitutional provision of Article 50(2) (h) as regards advocate services. 4. This being a first appeal, this court has the duty to re-assess, evaluate and analyze the evidence afresh and come to its own independent conclusion bearing in mind the fact that this court did not have the advantage of observing the demeanor of the witnesses. See: Okeno v. Republic (1972) EALR 32. 5. On the first ground, the appellant submitted that the prosecution witnesses made reference to a person by the name ‘Wanyama’ who was a butcher. The charge sheet on the other hand referred to Jackson Mulwa Kioko. He argued that no evidence was adduced to support the presumption that no other butcher went by a different epithet. That as a result the details of the charge sheet differed from the evidence tendered. It was further argued that while the charge sheet talked of the penis, the evidence tendered made reference to a finger. That no attempt was made to amend the charge sheet as required under Section 214 of the Criminal Procedure Code hence rendering the charge sheet defective. To that regard the appellant relied on Sigilani v. Republic [2004] 2KLR 480. 9. In response thereto, the Respondent’s Counsel submitted that reference to the appellant as Wanyama in evidence did not prejudice him since he was positively identified and that the name Wanyama is a name he was commonly known by. It was further submitted that the trial court was clear that the act of inserting his finger in E. M.’s vagina was an indecent act. 7. On the first issue, it is clear from the record that the appellant did not contend the names he was referred to in the charged sheet. Having not so contended, I find that his names were properly indicated. In her evidence, E.M. (PW1) positively identified the appellant as the butcher at Juakali area who commonly goes by the name ‘Wanyama’. The fact that he was positively identified supersedes the fact that PW1 did not refer to him by his official names. That argument thereby fails. 8. On the second aspect of the first issue, ‘indecent act’ is defined under section 2 (1) of the Act as an unlawful intentional act which causes, “ (a) any contact between any part of the body of a person with genital organs, breasts or buttocks of another, but does not include an act that causes penetration.” From the said definition, an offender does not necessarily have to cause contact using his genital organs to be culpable for the offence of indecent act. The offence is established once there is contact of offender’s body part (any for that matter) with the victim’s genitals, breasts or buttocks. The next issue for determination is whether it was unsafe to convict the appellant considering that the charge sheet talked of the penis and not finger. In my view, as long as the element of indecency is proved, the conviction would be safe. The defect of failure to mention the finger is not prejudicial to the appellant considering the fact that he participated in the trial as though he understood the particulars to be in relation to a finger and not the penis. He also failed to raise the issue on cross examination. It is worth noting that from the definition of indecent act, it is immaterial whether it was a penis or any other object or organ that was used indecently. The failure to indicate the correct part of the offender’s body that came into contact with the victim is not fatal to prosecution’s case and did not prejudice the Appellant. 9. On the second ground, the appellant contended that he was compelled to proceed with the trial without witness statements. That by the time PW1 and PW2 were giving their evidence, he had not been furnished with witness statements. He argued that the same was in contravention with Article 50 (2) (j) of the Constitution. The respondent contended that the appellant was supplied with statements and the said witnesses gave their evidence systematically. 10. On failure to supply an accused with witness statements, Justice Mativo ably explained the effect therein in Joseph Ndungu Kagiri v. Republic [2016] e KLR and I associate myself with the said reasoning. The Judge held: “The next issue for determination is whether failure by the prosecution to provide the accused persons with witness statements amounted to a violation of their constitutional rights to a fair trial. It is not disputed that the accused persons were not provided with witness statements prior to the trial or during the trial yet all the four prosecution witnesses testified and the trial

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magistrate never addressed himself to this issue. Counsel for DPP Mr. Njue submitted that no prejudice was occasioned to the accused persons because the record shows that they ably crossexamined all the prosecution witnesses. The Constitution of Kenya 2010 is highly valued for its articulation. Some such astute drafting includes but not limited to Article 50 which provides for the fundamental right to a fair hearing. Article 50 (2) (j) provides for the right of the accused person to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence while sub-article (c) provides for the right of the accused to have adequate time and facilities to prepare his defence. The right to a fair trial is a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. It is guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The fundamental importance of this right is illustrated not only by the extensive body of interpretation it has generated worldwide but, by the fact that under article 25 (c) of our constitution, it is among the fundamental rights and freedoms that may not be limited. The right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence is expressly provided for in our constitution. In Thomas Patrick Gilbert Cholmondeley Vs. Republic, (decided before the promulgation of the 2010 Constitution) the Court of Appeal stated categorically that:“We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under… our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial; all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items.” In arriving at this holding, the court cited common law duty as well as comparative decisions from various jurisdictions including the UK, Canada and Uganda: respectively R. V. Ward [1993] 2 ALL ER 557; R. V. Stinchcombe [1992] LRC (Cri) 68; Olum & Another V Attorney General [2002] 2 E.A. 508; and, the Kenyan Case of George Ngodhe Juma & two others Vs. The Attorney General Nairobi High Court, (Misc. Criminal Application No. 345 of 2001)." Article 50(2)(j) correctly interpreted means that an accused person should be furnished with all the witness statements and exhibits which the prosecution intends to rely on in their evidence in advance. The sole purpose of doing so is so is to avail the accused person sufficient time and facilities to enable him prepare his defence and challenge the prosecution’s evidence at the opportune time both in cross-examination and in his defence. This provision must then be read together with Sub-Article 2(c) which provides that every accused person has right to a fair trial which includes the right to have adequate time and facility to prepare a defence. The latter cannot be met if the accused is not furnished with the evidence the prosecution intends to rely on ahead of the trial. If this goal is not met, it means that the court shall be misinterpreting the letter and spirit of the supreme law of the land thereby belittling the Constitution and the very purpose for which it was intended. Courts must therefore be very keen in ensuring that this provision is adequately given regard to so as to ensure that the rights of an accused person are not violated. As pointed out above, the right to a fair trial is not one of those rights that can be limited under Article 24 of the Constitution. The cardinal principle in criminal justice is that an accused person is presumed innocent until proven guilty. In this regard, it is apt to reproduce a passage from a decision by the Supreme Court of India in the case of Natasha Singh v. CBI where it was held as follows:-

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“Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized."(Emphasis added) In R v Ward the Court of Appeal in England was unanimous that:“The prosecution’s duty at common law is to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution were under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Pursuant to that duty the prosecution were required to make available the records of all relevant experiments and tests carried out by expert witnesses. [Emphasis Mine] As pointed out earlier, although the Cholmondeley case was decided under the former Constitution, principles of disclosure are well entrenched in the Constitution of Kenya 2010 as stipulated under Article 50(2)(j) cited above. The case of R v Ward is clear that the duty of disclosure is a continuing one throughout the trial. Furthermore, the words of Article 50(2)(j) that guarantee the right “to be informed in advance” cannot be read restrictively to mean in advance of the trial. The duty imposed on the court is to ensure a fair trial for the accused and this right of disclosure is protected by the accused being informed of the evidence before it is produced and the accused having reasonable access to it. This right is to be read together with the other rights that constitute the right to a fair trial. Article 50(2)(c) guarantees the accused the right, “to have adequate facilities to prepare a defense.” This means the duty is cast on the prosecution to disclose all the evidence, material and witnesses to the defence during the pre-trial stage and throughout the trial. Whenever a disclosure is made during the trial the accused must be given adequate facilities to prepare his or her defence. This position had also been stated in R v Stinchcombe where the Supreme Court of Canada observed, “The obligation to disclose was a continuing one and was to be updated when additional information was received.” I find that failure to provide the appellant and his co-accused with the prosecution witness statements in advance as provided for under Article 50(2)(j) violated their constitutional right to a fair trial and vitiated the entire trial and its immaterial that they were ultimately acquitted. In my view, under no circumstances should a fair trial be jeopardized. These were the key witnesses and their evidence was crucial and the accused persons were entitled to be supplied with the said statement prior to the trial. It is immaterial that they were able to cross-examine the prosecution witness as learned counsel Mr. Njue for DPP submitted. The fact that they were able to crossexamine the witnesses does not take away their constitutional rights provided in the constitution nor can it be the yardstick for measuring a fair trial. In fact, failure to provide the accused persons with the witness statements prior to the trial was an illegality and a breach of their rights to a fair trial. I find that failure by the prosecution to provide the accused persons with prosecution witness's statements amounted to a violation of their constitutional rights to a fair trial.” 11. However, while I so associate myself, it is worth noting that each case is to be determined on a case to

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case basis. In the case at hand, the appellant requested for witness statements on 11th December, 2012. The court then made an order that the said statements be supplied on the mention date which was on 27 th December, 2012. When the matter was mentioned on the said date, the appellant never raised an issue as to whether he was supplied with the statements or not, the parties proceeded to take a hearing date. The matter was subsequently mentioned severally without the appellant raising the issue of the statements. When the matter came up for hearing on 30th January, 2013 all the appellant asked for more foolscaps. From the said occurrence, I draw an inference that the appellant was supplied with the statements as has been submitted by the respondent. 12. Further it is clear from the record that the appellant ably cross examined the witnesses as though he understood the substance of the charge he was facing. He did not conduct his case as though he was ambushed in any manner. In the end that ground therefore fails. Again the appellant was at liberty to seek to have witnesses recalled if he deemed necessary but there is no evidence that such was requested and refused by the trial court. 13. On the third ground, the appellant argued that the prosecution purported to portray PW1 as having sustained a degree of injury from the alleged incident that resulted into an awkward and strained walk yet no medical evidence was tendered to support the same. The respondent in rebuttal submitted that in sexual offences, the evidence of a complainant is enough to convict the appellant without corroboration of any other witness including medical evidence. 14. To determine this issue, I am guided by section 124 of the Criminal Law (Amendment) Act 2003 in Legal Notice No. 5 of 2003. The said section provides: “Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim 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.” 15. D K’s (PW2) testimony that PW1 was walking in an awkward manner corroborated PW1’s evidence. 16. Upon conducting voir dire examination, the trial magistrate noted that PW1 understood the nature of an oath and was subjected to give sworn evidence. In such a case, her evidence needs not to be corroborated. No medical evidence was required to prove indecent act with PW1. 17. The appellant argued that the evidence tendered by PW1 was contradicted by that of PW2. That while PW1 said that the appellant did not remove his pants, PW2 stated the appellant removed PW1’s pants. It is my considered view and in regard with section 124 (supra) that the contradiction were not material as to affect the prosecution case. The same did not negate the evidence that the appellant touched PW1’s vagina using his finger. 18. The last ground was that the appellant’s right under Article 50 (2) (h) of the Constitution was violated. To answer this, I quote verbatim the holding of the Court of Appeal in Thomas Alugha Ndegwa V. Republic [2016] eKLR. The court held as follows: “9. A determination of whether the appellant herein is entitled to legal aid, in view of the fact that Legal Aid Act commencement date was 10th May, 2016, is a novel issue. We will look at authorities from Kenya as well as other jurisdictions for jurisprudential guidance. 10. This Court in the case of DAVID MACHARIA NJOROGE V R, (2011) eKLR analyzed the applicability of Article 50 of the Constitution and held:

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“State funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense. Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that in addition to situations where „substantial injustice would otherwise result." persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided.” In David Macharia Njoroge V R, (supra), this Court considered the right to free legal counsel at state expense for the first time in Kenya and expounded on the principle of “substantial injustice”. 11. More recently, this Court in the case of KARISA CHENGO & 2 OTHERS V R, CR NOs. 44, 45 & 76 OF 2014, stated: “It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State"s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result" and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.” The importance of legal representation was also recognized by the African Commission in ADVOCATS SANS FRONTIERS (ON BEHALF OF BWAMPANYE) V BURUNDI, AFRICAN COMMISSION ON HUMAN RIGHTS, COMM. NO. 213/99 (2000) when it observed that: “…Legal assistance is a fundamental element of the right to fair trial. More so where the interests of justice demand it. It holds the view that in the case under consideration, considering the gravity of the allegations brought against the accused and the nature of the penalty he faced, it was in the interest of justice for him to have the benefit of the assistance of a lawyer at each stage of the case…” In Kenya, Section 43(1) of the Legal Aid Act sets out the duties of the court before which an unrepresented accused person is presented. Such Court is required to promptly inform the accused person of his right to legal representation; promptly inform him of his right to have an advocate assigned to him if substantial injustice is likely to result; and to inform the National Legal Aid Service to provide legal aid to the accused person. In the instant application, it is clear the framework for full implementation of Article 50 (h) is now in place as required by the Constitution. Section 40 of the Act requires that a person who wishes to receive legal aid may apply to the Service in writing so long as such an application is

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made before the final determination of the matter by a court, tribunal or any other forum to which the application relates…” 19. Applying the test above, the appellant’s argument fails for the reason that he first, was not faced with a capital offence and secondly, did not make an application at the earliest instance. Further, there is no evidence that the Appellant suffered any substantial injustice due to lack of legal representation as he ably conducted his defence from start to finish. 20. The appellant’s defence in my view did not cast any doubt or shake the weight of the prosecution evidence. In the circumstances, I find no merit in this appeal. In the end, this court upholds the conviction and sentence of the trial court. It is so ordered. Dated, signed and delivered at Machakos this 10th day of October, 2017. D.K. KEMEI JUDGE In the presence of: Jackson Mulwa Kioko for the Applicant Machogu for the Respondent Kituva: C/A

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