Morris Juma Okello v Republic & 1 other

PW6 CPL Lilian Sinai, the investigating officer the tendered the complainant’s certificate of birth showing that he was born on 25.10.00 as PEXH. 1. The Defence Case When he was put on his defence, the appellant gave sworn testimony in which he denied the offence. He said he was framed because he complainant had previously lied to his parents that he had chased him with a panga after he let his parent’s cows destroy accused’s vegetables. Appellant was tried and found guilty, convicted and sentenced to serve 30 yeas imprisonment. The Appeal Being dissatisfied with the conviction and sentence, the appellant lodged the instant appeal. In his Petition of Appeal filed on 30.5.17, the appellant set out 8 grounds of appeal to wit:1. The he was not represented by a lawyer and was not informed of that right 2. The trial magistrate erred in law and fact in basing the conviction on the appellant’s previous conviction 3. The trial magistrate erred in law and fact by failing to observe that the arresting officer did not inform him of the charge in a language that he understood as enshrined in Article 49(i)(a) 4. The trial magistrate misdirected himself by failing to observe that there was no DNA test carried out as stipulated in section 36 of the Sexual Offences Act 5. The trial magistrate erred in law and fact by failing to observe that there was no age assessment of the victim 6. The trial magistrate erred in law and fact by failing to observe that his identification was not proved beyond any reasonable doubt and no independent witness was called 7. The trial magistrate erred in law and fact by failing to observe that there was no first report made with appellant’s full names 8. The trial magistrate erred in law and fact in rejecting the appellant’s alibi defence without giving reasons During the hearing of the appeal, the appellant relied on his filed written submissions which he orally highlighted while, Mr. Muia, Counsel for the state made oral submissions in response thereto. Analysis and Determination This being a court of first appeal, I am guided by the ruling of the Court of Appeal in the case of OKENO VS. REPUBLIC [1972] E.A.32, where it held that:“It is the duty of a first appellant court to consider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld” The trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and this court is in dealing with this appeal obligated to give allowance for that. In dealing with this appeal, I will separately consider the grounds of appeal as follows:a. Was appellant informed of the reason for his arrest?

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Article 49 (1) provides that an arrested person has the right:“(a) To be informed promptly, in a language that the person understands, of; the reason for the arrest, the right to remain silent and the consequences of not remaining silent. Whereas there is no evidence before me that the appellant was or was not read the above right, the issue would have properly been raised at the trial Court and the arresting officer would have been questioned on the issue. To raise it as the basis for this appeal cannot be in the best interests of justice. I also recall that in the 1966 U.S. Supreme Court Case of Miranda vs Arizona, the reason Miranda’s conviction was quashed was because of the statements that he had made to the police without him being advised of his rights and not the non-advise of the rights per se. In the instant case, no complaint has been made that the non-reading of the Article 49(1)(a) right if at all, has prejudiced the appellant in any way and I am not convinced that this is a sufficient reason to overturn the trial. b. First report The issue would have properly been raised at the trial Court and the complainant and the investigating officer would have been questioned on the issue. To raise it as the basis for this appeal cannot be in the best interests of justice. c. Right to counsel Article 49 provides that an arrested person has the right (c) To communicate with an advocate, and other persons whose assistance is necessary Whereas there is no evidence before me that the appellant was or was not read the above right, there is similarly no evidence that his right to communicate with an advocate and other persons whose assistance is necessary was denied d. DNA The Appellant argued that the trial magistrate made misdirection by failing to observe that there was no DNA test carried out to establish the appellant’s complicity in the commission of the alleged offence. In AML v Republic 2012 eKLR, the Court of Appeal upheld the view that: “The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.” This was further affirmed in Kassim Ali v Republic Cr Appeal No. 84 of 2005 where this Court stated that: “The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.” Moreover, section 36 of the Sexual Offences Act that gives the trial court powers to order an accused person to undergo DNA testing uses the word ”may”. I therefore find that the power to order an accused person to undergo DNA testing is discretionary and it was not a mandatory obligation on the trial court. e. Was there an age assessment of the victim? Complainant’s certificate of birth showing that he was born on 25.10.00 was produced as PEXH. 1. It was therefore not necessary to subject the complainant to an age assessment test. f. Identification

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Under Section 143 of the Evidence Act, no particular number of witnesses is required to prove a fact. In BUKENYA & OTHERS VS REPUBLIC (1972) EA 549, the court said at Page 551: “While the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available, who were not called, the court is entitled under the general law of evidence, to draw an inference that the evidence of these witnesses, if called would have been tended to be adverse to the prosecution case”. In the instant case, the incident having taken place at about 6.00 pm, ordinarily even one witness would have sufficed and there would have been no requirement that the court warns itself of the dangers of relying on the evidence of a single witness. The court is only required to warn itself of such danger if the offence was committed under circumstances that did not favour identification, like in darkness. The evidence on record shows that complainant and appellant were neighbors. I am satisfied that there existed favourable conditions for positive recognition of the appellant. g. Alibi Appellant said he was at home when the offence was committed. Although his defence of alibi was not considered; I have hereinabove found that the appellant was positively recognized at the scene of crime. His defence of alibi is therefore a sham and it is rejected. h. Sentence At the hearing of this appeal, the appellant conceded that he is serving 30 years imprisonment in a related case in Nyando Criminal Case No. 374 of 2014. As stated earlier, the appellant was charged under section 8(1) as read with section 8(3) of the Sexual Offences Act. Section 8 states: (3) 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. While sentencing the appellant, the learned trial magistrate noted that appellant was not a first offender and sentenced him to 30 years imprisonment. The question is whether the learned trial magistrate erred in law and fact in basing the conviction on the appellant’s previous conviction. A previous sentence on a related offence should in my considered view prompt a court to hand down a more severe sentence since it shows that the accused is a habitual offender. To my mind; I have no doubt in my mind that the discretion of the trial court to sentence the appellant to 30 years imprisonment was exercised judiciously. As a result; this court finds no reason to interfere with it. Decision Although this court has discretion under Section 354 (3) (b) of the Criminal Procedure Code to increase or reduce the sentence or alter the nature of the sentence, this is one case where the court’s discretion cannot be exercised in favor of the appellant for the reason that the sentenced imposed is lawful. The upshot of this is that the appeal is dismissed and the sentence imposed on the appellant is upheld. DATED AND DELIVERED THIS 13th DAY OF July 2017 T. W. CHERERE JUDGE

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Read in open court in the presence ofCourt Assistant - Felix Appellant - Present in person For the State - Ms. Wafula

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