REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU H.C.CR.A NO 6 OF 2017 JOHN MAINGE MWENDO.......................................APPELLANT VERSUS REPUBLIC................................................................RESPONDENT (Being an appeal arising from conviction and sentence in Senior Resident Magistrate’s Court (Gatundu) in criminal case no 19 of 2015 by Hon W. Ngumi SRM dated 6th May 2016) JUDGEMENT 1. John Mainge Mwendo the appellant was charged with the offence of defilement. The particulars being that the appellant on the 16 th day of December 2015 in Gatundu North sub county within Kiambu County, intentionally and unlawfully committed an act that caused penetration with his genital organ namely penis into the genital organ namely vagina of S W K a child aged 12 years old. 2. He faced an alternative count of committing an indecent act, the particulars being that on 16 th December 2015 he committed an indecent act with a child contrary to section 11(1) of the Sexual Offences Act no 3 of 2006. 3. The matter proceeded to full hearing and he was convicted on the main count and sentenced to serve twenty (20) years imprisonment. He was aggrieved and has filed this appeal against both conviction and sentence. He has raised the following grounds. (a) That the learned trial magistrate erred in law and fact by convicting him on a charge which is defective under the provisions of section 214 of criminal procedure code. (b) That the learned trial magistrate erred in law and fact by forcing him to proceed with the case when he was not ready hence violated his rights as spelt by article 50(2)(c) of the constitution rendering the trial unfair. (c) That the learned trial magistrate erred in law when he purported to have considered his mitigation yet his hands were tied by the law thus to show that he had no discretion. 4. A summary of the case will suffice. The complainant testified as PW1. She was aged 12 years when she testified on 17 th February 2016. She told the court that the previous year she had gone to buy milk where the appellant was working and she found him cooking. She was with her cousin M aged 5 years (PW2) when he called her. As they were behind the chicken pen the appellant removed her panty, and defiled her in the sight of M. 5. When he was through he gave her milk to take home. She bled as a result. She reported this to her cousin C W G and the grandmother. The matter was reported and she was taken to hospital for treatment. This evidence by PW1 was confirmed by PW2 who had accompanied her to get milk from the appellant’s place. 6. PW3 C W G is PW1’s cousin who had sent her and PW2 to get milk. They delayed and their grandmother asked her to go and check on them. PW2 reported to her what mama Judy’s employee (the appellant had done to her) On reaching home PW3 informed their grandmother and together they examined PW1 and noted that she had some blood in her vagina. The grandmother screamed and villagers came. 7. They went to Mama Judy’s place and PW1 identified the appellant as the person who had defiled her. He was taken to the police post together with PW1. PW4 C G M the mother of PW2 confirmed the evidence of PW3. She availed PW1’s birth certificate which showed she was born on 5th June 2003 (EXB3). PW5 No. 48489 P.C Moses Kimtei was the investigating officer. He received the complaint from PW4 who came with PW1 to the police post. He sent them to Igegania hospital and later recorded statements of the witnesses. 8. PW6 Dr. Kendi Lynott is the doctor who examined PW1 on 17 th December 2015 and filled the P3 Form which he produced as EXB2.
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The treatment card was produced as EXB1. In his evidence he confirmed that the minor had been defiled. She had a blood stained inner panty. Her hymen was broken and her vulva was swollen. There was also blood in her birth canal. 9. The appellant opted to give an unsworn statement of defence without calling any witness. He stated that he was working as a casual at Gatundu at the time of his arrest. That his employer who was an AP wanted to terminate his services. He had also been informed that his employer was planting charges of defilement and theft on people. He called his father to come for him but before he came he was implicated in this case. 10. He had also learnt that PW1’s mother had a grudge with his employer. He admitted that PW1 and PW2 used to come for milk and said the latter never witnessed the incident. 11. The appellant relied on his written submissions to argue his appeal. Referring the evidence of PW1, PW4 and PW5 he said PW1 was aged 12 years yet he was charged under section 8(1) as read with section 8(2) Sexual Offences Act instead of section 8(1) as read with section 8(3) Sexual Offences Act. He therefore submitted that the learned trial magistrate convicted him on defective charge sheet. 12. To support his argument that the charge sheet was defective he cited the following cases: • • • Jason Akumu Yougo v Republic Criminal appeal no 1 of 1983; Burunyi & Anor v Uganda 1968 E.A. 123 Ahamed Sumau v Republic 1964 EA 481. 13. He further submitted that on 10th March 2016 he was not ready to proceed but the court proceeded and several witnesses testified. He was never asked to explain why he was not ready to proceed. He said this violated Article 50(2) (c), article 159(2)(a) and article 47(2) of the Constitution. 14. The appellant is of the view that following the decision of the Supreme court in Francis Muruatetu and Anor vs A.G. Petition No 15 of 2015, the court is no longer bound by minimum sentences. He referred the court to the case of William Okungu Kitiny vs Republic 2018 eKLR. 15. M/s Muthoni for the State opposed the appeal. She submitted that the substance of the charge is in section 8(1) Sexual Offences Act and the rest are provisions on sentence which would not make the charge to be defective. On the issue of age she submitted the age was shown as 11 years and 12 years which to her was not fatal, unless the appellant was asking for a stiffer sentence. 16. She admitted that at page 7 of the record of appeal he had indicated that he was not ready but the court had allowed PW2 to testify. The appellant’s rights were not contravened she said. Furthermore he cross examined PW2. 17. On the evidence adduced she was satisfied that the evidence of PW1 and PW2 was consistent. That his defence did not controvert the evidence of the prosecution. Finally she submitted that the appellant in his mitigation admitted having committed the offence. 18. This is a first appeal and I am alive to my sole duty of re-evaluating the evidence on record and arriving at my own conclusion. I should also bear in mind that I did not see nor hear the witnesses and so give an allowance for that. See Okeno v Republic 1972 EA 32; Pandya v Republic [1957] E.A. 336 and Kariuki Karanja v Republic [1986] KLR 190. 19. I have considered the evidence on record, the grounds of appeal and the submissions. I chose to first consider the appellant’s second ground of appeal as it could dispose of this appeal. It reads: “That the learned trial magistrate erred in law and fact by forcing me to proceed with the case when I was not ready hence violated my rights as spelt by “Article 50(2) (c) of the Constitution rendering the trial un fair.” 20. Article 50(2) of the Constitution provides: Every accused person has the right to a fair trial, which includes the right— (b) to be informed of the charge, with sufficient detail to answer it; The record as cited by the appellant at pg 6-7 shows: Before Hon. W. Ngumi SRM Court prosecutor Kabiu P.C. Court clerk J. Irungu Accused present
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State counsel. I have 4 witnesses. Accused I am not ready PW2 a minor sworn states as follows. It is not clear whether PW1 and PW2 were each sworn before the voire dire examination. The writing in the original record is a bit of a challenge to me. 21. On this 10th day of March 16 all the four (4) witnesses present testified and the prosecution asked for an adjournment which was granted. The fact that the appellant testified does not mean no right of his was violated. 22. It is clear from the record that when the appellant told the court he was not ready to proceed the learned trial magistrate did not bother to find out from him why he was not ready to proceed. I wish he had done that for record purposes so that this court could know why he denied the appellant the chance to prepare for his defence. 23. The record shows that the appellant was first arraigned in court on 18 th December 2015. The first hearing date was 17 th February 2016 when the case proceeded and the evidence of PW1 was taken. The next hearing date was the 10 th March 2016 when the appellant claimed he was not ready. It cannot therefore be said that the matter had been adjourned at the instance of the appellant. 24. On 17th February 2016 after PW1 had testified it’s the prosecution that sought for an adjournment which the court granted. On 10 th March 2016 after denying the appellant an adjournment the court after hearing the four(4) witnesses went ahead to grant an adjournment at the prosecution’s instance. This amounted to applying different standards in the same circumstances. Article 159(2) of the Constitution provides: “In exercising judicial authority, the courts and tribunals shall be guided by the following principles— (a) justice shall be done to all, irrespective of status” The said provision was violated by the trial court. 25. The appellant was not represented and that is why the court ought to have been more sensitive to his plight. The court should also have borne in mind the serious nature of the charge facing the appellant and the resultant sentence in the event of a conviction. 26. Upon considering the totality of all the circumstances that I have stated above I find that the appellant was not accorded a fair trial by the trial court. Having come to the above conclusion I will not consider the merits or otherwise of the other grounds. 27. The appellant has only been in prison for two(2) years. It is in the interest of justice that he goes for a retrial. I therefore make the following orders:(i) The conviction is set aside. (ii) The sentence of twenty(2)) years imprisonment is also set aside. (iii) The appellant will be remanded in custody at Gatundu police station. (iv) He will be arraigned before the Principal Magistrate’s court Gatundu on 7 th August 2018 for the matter to be heard afresh before any magistrate with competent jurisdiction besides Hon. W. Ngumi SRM. (v) The matter should be heard and determined within six(6) months from 7 th August 2018. Orders accordingly. Dated, signed and delivered on 3rd August 2018 in open court at Kiambu. ………………………… HEDWIG I. ONG’UDI JUDGE
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