P M v Republic

were:a. Whether or not the failure to assign the Appellant legal counsel infringed on his right to fair trial; b. Whether or not a proper voire dire examination of PW 4 was conducted; c. Whether or not PW 4’s age was proven; d. Whether or not the Prosecution had proven its case against the Appellant herein beyond reasonable doubt. 5. Although the Appellant had listed the ground of there having been an improper voire dire examination, he did not submit on the same. Neither did the State. This court therefore did not find it necessary to interrogate the issue. Suffice it to state that it perused the proceedings and noted that no voire dire examination was conducted as PW 4 was mentally challenged and her evidence was interpreted by an intermediary, R M K, a teacher at [particulars withheld] Primary School. In view of the mental capacity of PW 4, the need for a voire dire examination before she testified was therefore rendered moot. 6. Going further, the Appellant contended that his constitutional right to fair trial as enshrined in Article 50(2)(h) of the Constitution of Kenya 2010 was infringed upon as he was not assigned legal representation. 7. On its part, the State argued that the right to legal representation enshrined in Article 50(2)(h) of the Constitution of Kenya was not an absolute right and that the practise was to assign counsel to persons who had been charged with treason or murder. 8. It relied on the case of David Njoroge Macharia vs Republic Cr Appeal No 497 of 2007 (eKLR reference not cited). In the said case of David Njoroge Macharia vs Republic[ 2011] eKLR the Court of Appeal held that:“Under the new Constitution, 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, if substantial injustice would otherwise result (emphasis added). 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. 9. This limitation of the right to be assigned legal representation by the State was addressed by the Court of Appeal in the case of Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati vs Republic [2015] eKLR when it stated as follows:“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

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representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arise 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. Again, this Court differently constituted in the case of Moses Gitonga Kimani v Republic, Meru Criminal Appeal No. 69 of 2013, recognized that the Constitution has placed an obligation on Parliament to enact legislation which would ensure realization of an accused person’s right to a fair trial under Article 50 of the Constitution within four years of the promulgation of the Constitution. In that regard the court stated as follows: “It is the envisaged legislation that would set out the circumstances and parameters under which an accused person is entitled to legal representation at the State’s expense. While appreciating that the framers of the Constitution intended the right to legal representation to be achieved progressively we implore Parliament to enact the requisite legislation.” Article 261 of the Constitution provides inter alia:(i) Parliament shall enact any legislation required by this Constitution to be enacted to govern a particular matter within the period specified in the Fifth Schedule, commencing on the effective date. (ii) Despite clause (1), the National Assembly may, by resolution supported by the votes of at least two-thirds of all members of the National Assembly, extend the period prescribed in respect of any particular matter under clause (1), by a period not exceeding one year It is therefore apparent that the provisions of Article 261 and the Fifth Schedule to the Constitution, that would give effect to the provisions of Article 50, including Article 50(2)(h), are to be implemented within a period of between 4 and 5 years. We must however lament the obvious lack of the appropriate legislation almost five years after the promulgation of the Constitution to provide guidelines on legal representation at State’s expense. We believe time is now ripe and nigh for the enactment of such legislation. That right cannot be aspirational and merely speculative. It is a right that has crystalized and which the State must strive to achieve. We say so while alive to the fact that right to fair trial is one of the rights that cannot be limited under Article 25 of the Constitution.” 10. Whilst this court agreed with the Appellant that there was discrimination relating to the provision of legal representation, it was took cognisance of the aforesaid decision by the Court of Appeal and only hoped that the right to assign legal representation to all(emphasis court) accused persons will be realised progressively but sooner than later. In light of the aforesaid limitations on assignment of legal counsel, this court was not persuaded to find that the Appellant’s rights to fair trial had been infringed as he had contended in his Written Submissions. 11. Turning to the Prosecution’s case, the Appellant submitted that no DNA test was conducted to prove that indeed the sperms that were observed belonged to him which he argued was contrary to Section 36(1) of the Sexual Offences Act. It was his contention that it had not been proven if the penetration was by a finger or penis. He stated that this was because Dr Stephen Katana (hereinafter referred to as “PW 2”) had contended that a high vaginal swab revealed spermatozoa but again contradicted himself when he said that there were no spermatozoa. 12. He also averred that the members of public who arrested him were never called as witnesses to testify against him. He was emphatic that there existed a grudge between him and PW 4’s mother which he had alluded to in his defenceand therefore urged this court to find that he had been framed in this case. 13. On its part, the State submitted that DNA testing was not mandatory in cases of sexual offences

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because the ingredients to prove defilement were age, penetration and recognition. 14. It stated that the Prosecution adduced in evidence a Birth Certificate that showed that PW 4 was born on 15th October 2001 and was thus fourteen (14) years at the time of the said defilement. It added that PW 2 adduced in evidence a P3 Form that showed that PW 4’s hymen was missing, proof that there was penetration. Further, it averred that through an intermediary, PW 4 testified how the Appellant defiled her and that in fact PW 4’s mother, R S M (hereinafter referred to as “PW 1”)caught the Appellant red handed in a toilet defiling PW 4. 15. It submitted that it was then immaterial that the members of public who arrested the Appellant were not called as witnesses to testify in the case herein and that in any event, he did not deny that he was arrested by members of the public. 16. It was categorical that the Prosecution proved its case beyond reasonable doubt and urged this court to dismiss the Appellant’s Appeal as the same was not merited. 17. First and foremost, it is important to point out that although DNA test is a good test to link perpetrators to sexual offences, the law does not make it mandatory in sexual offence cases. This court had due regard to the case of Mohamed v Republic [2006] 2 KLR 138, it stated that:“It is now settled that the Courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.” 18. The aforesaid holding was derived from the provisions of Section 124 of the Evidence Act Cap 80 (Laws of Kenya) that stipulate as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is 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. 19. Evidently, the proviso to Section 124 of the Evidence Act is clear that where there are no eye witnesses other than a person who has been defiled, the trial court shall receive evidence of such alleged victim, if it satisfied that such alleged victim is telling the truth. Such a trial court must record the reasons for believing that witness and not the alleged perpetrator. 20. In this case, however, it was not the Appellant’s word against PW 4’s evidence. According to the evidence that was adduced in the Trial Court, on 20th April 2015, the Appellant dragged PW 4 into the toilet where he touched her with his fingers. She said that she felt pain and that her grandmother walked in on them and found the Appellant lying on PW 4. However, PW 2 said that she was the one who went into the toilet and found the Appellant defiling PW 4. 21. When PW 2 screamed, neighbours came and arrested the Appellant who was still in the toilet and took him to the Chief’s Office at [particulars withheld]. She then took PW 4 to [particulars withheld] and later to Voi District Hospital. She was subsequently seen at Moi District Hospital. She adduced in evidence the medical treatment notes and the P3 Form. 22. PW 2 testified that although there were no tears in PW 4’s labia majora and labia minora and a high vagina swab did not show spermatozoa, her hymen was broken and it showed penetration that had

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happened within an hour of the medical examination. He was categorical that the fact that there were no spermatozoa did not mean that there was no penetration because penetration can occur without ejaculation taking place. 23. No 2009016781 APC Christine Manga (hereinafter referred to as ‘PW 3”) confirmed that the Appellant was brought to the APC Camp by members of public. She stated that they did not him because he was drunk at the material time. Her office then transferred the Appellant to Voi Police Station. 24. No 955573 PC Nahashon Kirui (hereinafter referred to as “PW 5”) confirmed that they received the Appellant at the said Police Station. He said that when he interrogated the Appellant, he told him that PW 4 had called him to assist her in dressing her, which PW 2 denied as she stated that PW 4 knew how to dress herself. 25. In his unsworn evidence, the Appellant denied ever having defiled PW 1 and contended that PW 2 and PW 4 passed by his house and when he offered to buy a biscuit for PW 4, an argument ensued between him and PW 2. It was then that members of community policing came and arrested him. He was adamant that PW 4 had always been looking for ways to eliminate him. 26. It was clear from PW 2’s evidence that she was related to the Appellant by marriage. The Appellant was her deceased’s husband’s step-brother. An analysis of the evidence showed that the Prosecution had proved its case to the required standard because, PW 2 caught the Appellant in the act of defiling PW 4, a fact that PW 4 told the Trial Court through an intermediary. 27. The P3 Form showed that the approximate age of the injuries was one (1) hour from the time of examination of PW 4. This corroborated PW 2’s evidence who told the Trial Court that she took PW 4 to the hospital immediately she extricated her from the Appellant. The Appellant’s version of events was not persuasive as there was no reason why the members of public would have been expected to arrest him merely because he had had an argument with PW 2 which had started from him offering PW 4 a biscuit. 28. He admitted that Community Policing members came where he was allegedly arguing with PW 2 and arrested him. It was therefore not necessary for the said members to have been called to testify because his arrest by them was not an issue in contention. The witnesses that the Prosecution called were sufficient to have proved its case. 29. Section 2(1) of the Sexual Offences Act defines “penetration” as “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 30. It was irrespective that there was no presence of spermatozoa. This court was persuaded to accept his explanation that there need not have been presence of spermatozoa to prove penetration and that there was in fact penetration evidenced by the broken hymen, which was approximated to have been one (1) hour before the medical examination of PW 4. 31. Section 8(3) of the Sexual Offences Act stipulates that:“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 32. As PW 2 confirmed that there was penetration, the Appellant was liable to imprisonment for twenty (20) years. The Learned Trial Magistrate arrived at the correct conclusion when she stated that PW 1 was an eye witness and that the Appellant’s assertions that PW 2 had a grudge against him was an afterthought as he never raised it at the time he was Cross-examining her. 33. Accordingly, having analysed the evidence afresh, this court came to the firm conclusion that the Appellant’s unsworn evidence, which had little or no probative value did not displace the evidence that was presented to the Trial Court by the Prosecution. As can be seen hereinabove, the Prosecution proved

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its case to the required standard, which is proof beyond reasonable doubt. DISPOSITION 34. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal that was lodged on 29th September 2016 was not merited and the same is hereby dismissed. Instead, this court affirms and upholds the conviction and sentence that was meted upon the Appellant by the Learned Trial Magistrate. 35. It is so ordered. DATED and DELIVERED at VOI this 10thday of October 2017 J. KAMAU JUDGE In the presence of:Paul Mwakusanya - Appellant Miss Anyumba for State Josephat Mavu– Court Clerk

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