Daniel Mui Mbithi v Republic

f) That the court erred in law and substance by convicting on the basis of divergent and variant evidence. g) That the appellant should have been accorded legal representation pursuant to Article 50 (2) (h) of the Constitution of Kenya. 5. This being a first appeal, I have re assessed and analyzed the evidence afresh to enable me arrive at my own independent conclusion. On the first and second ground, the appellant submitted that the main charge and the alternative charge did not contain the words ‘intentionally and unlawfully’ as provided for under sections 3 and 6 of the Sexual Offences Act hence the offences as drafted are not known in law. The appellant cited Yongo v. Republic (1983) KLR 5, KCA, Sigilani v. Republic (2004) 2KLR 480 and Erro Oba v. Republic, Nakuru Cr. App. No. 11 of 2008 to illustrate his argument. 6. On the third ground, the appellant cited section 7 of the Sexual Offences Act and submitted that the Sexual Offences Act does not provide for an intermediary to testify as a substitute for a declared vulnerable witness. 7. It was further submitted that from the evidence of PW4 and PW6 the appellant could not be found guilty. That PW6’s evidence was forensically an impossibility. The appellant submitted that there was lack of proper investigation since PW2 who locked the bath ought to have been considered an accomplice. He argued that the trial court erred in convicting him for the alternative count while the evidence pointed towards defilement. It was finally argued that the option enunciated in Article 50 (2) (h) of the Constitution was not offered to the appellant thereby his right was infringed. 8. The respondent on the other hand argued that the complainant was unable to give evidence due to the withdrawal state she was in and her mother (PW1) was in a position to do so by virtue of section 31 of the Sexual Offences Act. It was argued that the evidence adduced by the prosecution pointed to the charge of defilement as opposed to attempted defilement and the trial court prudently charged the appellant for the alternative charge. 9. The Court of Appeal considered the question of omission of the words “intentionally "in JMA v. Republic [2009] KLR pg. 671. The said court quashed a conviction on the main charge of defilement and found the appellant guilty on the alternative charge, for reasons that the charge was fatally defective for bearing the above omission. The Court of Appeal held inter alia that: “This was a case in which the superior court should have invoked the provisions of Section 382 of the Criminal Procedure Code to cure the irregularity which on the facts and circumstances of this matter was minor.” The test is whether the failure occasioned a miscarriage of justice in the trial. The appellant in this case handled the case as though he understood the statement of the offence and cannot be said to have been prejudiced by the defect. The said defect is curable under section Section 382 of the Criminal Procedure Code. 10. On the issue of intermediary, I borrow from the holding of Lesiit J in J.K.N. v. Republic (2015) e KLR where she held: “Under the Sexual Offences Act, the court hearing a case of a child complainant in a sexual offence has an additional and critical duty and role to play. In the case of a child complainant especially, the court has the extra duty to determine whether the child is a vulnerable witness, and if so the specific action(s) the court should take are set out under the SOA. That process of assessing whether the child complainant is vulnerable and whether there will be a need for an intermediary can only reasonably be carried out at a pre-trial conference. I say so because it would be too late to conduct the inquiry on the date set for the trial. This is because once a witness is declared a vulnerable witness needing an intermediary the court must make an order for an intermediary to be sought for. The intermediary should then be available on the date set

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for the hearing. Section 31 of the SOA provides as follows: “31. (1) A court, in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is a. the alleged victim in the proceedings pending before the court; b. (b) a child; or… (4) Upon declaration of a witness as a vulnerable witness in terms of this section, the court shall, subject to the provisions of subsection (5), direct that such witness be protected by one or more of the following measures (a) allowing such witness to give evidence under the protective cover of a witness protection box; (b) directing that the witness shall give evidence through an intermediary;… 6. Once a court declares any person a vulnerable witness, the court shall direct that an intermediary referred to in subsection (3), be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the court shall record the reasons for not appointing an intermediary…” The process of determining whether a witness is vulnerable and therefore whether they need to testify through an intermediary has a bearing on the voire dire examination. In more advanced jurisdictions like South Africa there has been debate whether the child should even be subjected to oaths and affirmations, or even whether they should be required to testify in open court. Such was one of the issues the Constitutional Court there grappled with in the case of DIRECTOR OF PUBLIC PROSECUTIONS, TRANSVAAL versus MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS, CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 36/08 [2009] ZACC 8 . The Constitutional Court considering, inter alia, the question of constitutional rights of the child complainant in sexual offences in their Bill of Rights observed: “NGCOBO J: Introduction [1] Until recently, the law did not pay much attention to the stress that child complainants in sexual offence cases suffer when they testify in courts.1 Child complainants in sexual offence cases were required to relive the horror of the crime in open court. The circumstances under which they gave evidence and the mental stress or suffering they went through while giving evidence did not appear to be the concern of the law. And, at times, they were subjected to the most brutal and humiliating treatment by being asked to relate the sordid details of the traumatic experiences that they had gone through. Regrettably, although there were welcome exceptions, the plight of child complainants was seldom the concern of those who required them to testify or those before whom they testified. [2] The advent of our constitutional democracy must change all of that. Our constitutional democracy seeks to transform our legal system. Its foundational values of human dignity, the achievement of equality and the advancement of human rights and freedoms, introduce a new ethos that should permeate our legal system. Consistently with these values, section 28(2) of the Constitution requires that in all matters concerning a child, the child’s best interests must be of paramount importance. Recently, the Criminal Law (Sexual Offences and Related Matters) Amendment Act (the Sexual Offences Amendment Act) introduced certain amendments to the Criminal Procedure Act4 (the CPA). The amendments that are relevant to these proceedings are

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those that concern the protection to be given to child complainants when giving evidence in criminal proceedings involving sexual offences. [3] The central question presented in these consolidated cases is whether the provisions of the CPA that concern the protection to be given to child complainants in criminal proceedings involving sexual offences provide protection consistently with section 28(2) of the Constitution. In particular, the question presented is whether the provisions of sections 153(3) and (5) (proceedings in camera), 158(5), (the duty to give reasons for refusing to allow a child to give evidence by means of closed circuit television), 164(1) (testifying without taking an oath or the affirmation), 170A(1) (testifying through an intermediary) and (7) (the duty to give reasons for refusing to appoint an intermediary) of the CPA are consistent with section 28(2) of the Constitution. [4]… [5] But, as the judgment of the High Court and the submissions made by the parties in these cases amply demonstrate, behind these legal questions lies the core issue concerning the administration of justice. Specifically, two questions arise in this regard. First, whether the provisions of the CPA that were enacted to protect child complainants from the mental stress and anguish associated with testifying in criminal proceedings are being interpreted and implemented consistently with the Constitution. Second, the duty of all superior courts including this Court (as the upper guardian of all minors) – if any – to investigate any failure to implement these provisions which deny child complainants the protection they constitutionally deserve, once any failure to do so is brought to the Court’s attention. These cases are therefore fundamentally about the administration of justice in those courts in which child complainants of sexual offences appear to testify… [74] Courts are now obliged to give consideration to the effect that their decisions will have on the rights and interests of the child. The legal and judicial process must always be child sensitive. As we held in S v M, statutes “must be interpreted . . . in a manner which favours protecting and advancing the interests of children; and that courts must function in a manner which at all times shows due respect for children’s rights.” Courts are bound to give effect to the provisions of section 28(2) in matters that come before them and which involve children. Indeed, section 8(1) of the Constitution makes it plain that the Bill of Rights “binds the legislature, the executive, the judiciary and all organs of state.” 20. The cited case is included in this judgment to demonstrate that as a country we are a far cry from effecting measures in our administration of justice system which place the best interest of the child in their proper perspective and position. While our laws [Constitution, CPC Children Act Witness Protection Act, Victim Protection Act and SOA among many] have provided for various measures for the protection of witnesses generally and have recognized the importance of identifying which could be classified as vulnerable witnesses for specific protective measures as set out in each of these legislations. 21. Provision of Intermediaries among a host of other beautiful provisions meant to arm the courts with the power of protecting vulnerable witnesses, child victims of sexual offences and the like in various ways enumerated therein, remain un implemented as no steps have been made to make their implementation a reality. 22. Some examples of our lack of preparedness can be given. For instance the whole question of vulnerable witnesses is new area. For the courts, and even State Prosecutors to effectively manage these provisions and therefore implement, they need to understand them. There is an urgent need for training. This takes administrative intervention to execute. 23. Another simple example is the lack of witness protection boxes for use by child/vulnerable witnesses. This is yet another administrative measure which should have sent the administration

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on a frenzy to equip every court in the country with them. When shall we ever hope to give real protection to our children especially the victims of sexual offences" 24. In the cited case, DPP, Transvaal, supra, the law has gone a further step of critically looking at the whole question of voire dire examination of child witnesses. Provision has been made in the SA law which makes it unnecessary for child witnesses to ever appear in court to testify, even in camera, and thus making the need for the voire dire examination and the taking of oaths and affirmations superfluous. 25. The operation of section 31 of the SOA seems to form an exception to the application of section 124 of the Evidence Act, where the evidence of a child victim of a sexual offence is received through an intermediary. Section 124 of the evidence act regarding the evidence of children provides as follows: “S.124. 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.” 26. In the instant case, the complainant gave her evidence by way of affirmation. Hers was not the only evidence relied upon to convict the appellant. From the test carried out by the learned trial magistrate and the conclusion she arrived at, I agree that the complainant in this case did not need an intermediary. 27. Getting back to this appeal the appellant has not shown how the failure, if any of invoking the provisions of the SOA regarding vulnerable witnesses affected him. The failure to invoke the said provisions does not affect the appellant’s rights or interests in any way. If anyone stood to lose, it was the child victim, not the appellant. I find that nothing turns on this point.” 11. On the ground that the evidence of PW 4 and PW6 were not enough to hold a conviction. It is worth noting that the examination on the complainant was enough considering that she was found to have her hymen missing, her vagina lacerated and having blood. That was evidence enough that she had been defiled. It is immaterial that the tests done on the appellant were negative. The case of J.M.A (supra) also answers the issue of whether the trial court erred in convicting the appellant for the alternative charge yet the evidence pointed toward defilement. 12. On Article 50 (2) (h), it is noteworthy that the appellant herein was not faced with a capital offence neither did he raise the issue at an earlier instance. The said ground therefore fails. The evidence by the prosecution was so watertight and was no shaken in any manner by the Appellant’s case. The Appellant did not prove that he suffered substantial injustice due to the lack of representation by an Advocate. He fully participated in the trial from start to finish and did not at any time raise any issues that he was unable to conduct his defence. The Appellant cannot now turn around and raise an issue of lack of legal representation after he had already crossed the bridge. The case at hand is not one where there was a sentence of death. I find there was no substantial injustice suffered by the Appellant in any way. 13. In the result, I find the Appellant’s Appeal lack merit. The same is ordered dismissed. The conviction and sentence by the lower court is upheld. It is so ordered.

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Dated, Signed and Delivered at Machakos this 11th day of October, 2017. D. K. KEMEI JUDGE In the presence of:Daniel Mui Mbithi – appellant Machogu for Respondent C/A: Kituva

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