REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION CRIMINAL APPEAL NUMBER 166 of 2017. BETWEEN DANIEL ODUYA OLOO.............................................APPELLANT AND REPUBLIC.................................................................RESPONDENT (An appeal from the original conviction and sentence in the Chief Magistrate’s Court at Makadara Cr. Case No. 2878 of 2015 delivered by Hon. H. M. Nyaga, CM on 11th October, 2017). JUDGMENT Background. 1. The Appellant was charged with the offence of defilement of a child contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 20062007. The particulars of the offence were that on 18 th September, 2015 at Mathare [particulars withheld] in Nairobi within Nairobi County, intentionally caused his penis to penetrate the vagina of M. A. O, a child aged 11 years. He was charged in the alternative of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 in that he intentionally touched the vagina of M. A. O, a child aged 11 years, with his vagina. 2. The Appellant was found guilty in the main count, convicted and sentenced to life imprisonment. Dissatisfied with that conviction and sentence he moved to this court by way of the present appeal. The amended grounds of appeal on which he relied upon were annexed to his written submissions filed on 4th June, 2018. He raised four grounds of appeal, namely that the charge sheet was defective , that the elements of the offence of defilement were not proved , that Section 200 of the Criminal Procedure Code was contravened, and that the learned magistrate failed to appreciate the existence of a grudge between him and the complainant’s parents. Submissions. 3. The Appellant who was in person took issue with the charge sheet because it was drafted under Section 8(1)(2) of the Sexual Offences Act 3. 2006-2007”. He submitted that this was a non-existent law in the Kenya and therefore the charge was contrary to Article 50(2)(n)(i) of the Constitution. Accordingly, he submitted that he was not accorded sufficient detail to answer to the charges and further that a conviction could not lie for a non-existent offence. 4. He also faulted the fact of lack of use of the word “unlawful” in the particulars of the offence. This, he submitted, implied that the criminal element of the offence was non-existent. He submitted that the particulars needed to intimate that the act was intentional and unlawful. He submitted that this failure was a fatal defect as it went to the core of the charge. 5. He also submitted that the use of the words “dudu”, “tabia mbaya” and “thing” in the evidence adduced raised the question as to whether the organ being referred to as such was actually the genital organ. He was of the view that a finding that the words referred to a genital organ was speculative rendering the evidence ambiguous. He relied on Sigilai v. Republic[2004] 2 KLR 480 to buttress the submission. 6. He submitted that penetration was not proved. He submitted that PW5 and PW7 who produced the medical evidence were not the makers of the documents and therefore contravened Sections 33 and 77 of the Evidence Act. He pointed to the medical examination of PW1 which he noted that although it was indicated that the redness in the child’s vagina was caused by trauma the actual nature of the trauma was never established. 7. On non- compliance section 200(3) of the Criminal Procedure Code, he submitted that the same was occasioned by the succeeding
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magistrate. He pointed to the failure of the learned magistrate to enquire from him if he wished to recall the witnesses who had testified for fresh evidence or for further cross examination. 8. The Appellant did also fault the learned trial magistrate’s failure to consider that he brought up the issue of the existence of a grudge between him and PW2, the father of PW1 throughout the trial. He raised the same issue in his defence as a result. 9. Learned State Counsel, Ms. Akunja opposed the appeal. She submitted that the prosecution proved their case beyond reasonable doubt. With regards to the ingredients of the offence she submitted that they were proved sufficiently. That the complainant’s age was proved as 11 years and that penetration was established as being partial as per the clinical officer and doctor. Further that the complainant’s mother noticed blood on the child’s genitalia. With regards to identification, she submitted that the Appellant was the complainant’s neighbour and was well known to her and that after the parents and members of public broke into the Appellant’s house they only found him and the complainant, leading to the conclusion that he was the perpetrator. 10. With regards to the Appellant’s submission that the charge sheet was defective, she submitted that this was untrue as he was properly charged. With regards to compliance to Section 200(3) of the Criminal Procedure Code she submitted that the provision was complied with and PW1 was recalled for cross examination. On the Appellant’s assertion that his defence, concerning a grudge, was not considered, she submitted that PW4 who was an independent witness was at the scene and assisted when the Appellant’s door was broken down leading to his arrest. She therefore submitted that the offence was proved beyond reasonable doubt and prayed that the appeal be dismissed. Determination 11. Before I delve into the summary of the evidence, it is important that I first consider the legal issue that was raised by the Appellant; that Section 200(3) of the Criminal Procedure Code was not complied with when the succeeding magistrate took over the case. The provision states: “Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.” 12. In this matter, the original trial magistrate, Hon. Kibosia, recused himself on 6 th July, 2016 and was succeeded by Hon. Nyaga who when the matter came up for hearing on 1st September, 2016 stated that: “Court: Section 200(3) complied with.” 13. This clearly did not conform to the statutory provision which requires the trial magistrate to indicate that he has informed the accused person of his right to demand the resummoning or rehearing of a witness. Once this is done he must indicate, on the record, the choice the accused person makes. The record in this case is mute on both aspects only indicating that the statutory provision was complied with. Ms. Akunja pointed to the recalling of PW1 for cross examination as indicative of compliance with the provision in question. I note however that the application to recall the witness was initially made on 6 th July, 2016 before Hon. Kibosia and although he refused to grant the order it led to acrimony with the Appellant who applied that the magistrate recuses himself. The file was accordingly placed before Hon. Nyaga on the same date for re-allocation. The proceedings before the latter court were as follows: “Accused: I want to ask the complainant question. Court: Summons to the complainant’s parents to avail the complainant in court. Directions on 17/8/16. Mention on 20/7/16.” 14. To re-emphasize the above finding, it is trite to note that PW1 was availed in court on 1 st September, 2016. The record was written as follows; “Court; Section 200(3) CPC complied with. Prosecutor; I have the complainant. The accused wanted her to be recalled. Accused; I wanted to ask her questions. I never got a chance to do so. I am ready.” 15. On this day the complainant was cross examined by the Appellant. However, the court upon indicating that Section 200(3) had been complied with did not give an opportunity to the Appellant to choose whether he wished to recall all the witnesses who had testified namely PW2 and PW2 or have them testify afresh altogether. Secondly, the choice by the Appellant to recall PW1 as earlier noted had been made prior to the order by Hon. Nyaga that Section 200 (3) had been complied with. 16. Section 200(3) places a mandatory requirement upon the succeeding magistrate to ensure that he informs the accused of his right to choose to either recall the witness(es) who had testified or have them recalled for purposes of further cross examination. Clearly Hon. Nyaga failed the test, the net effect being that the Appellant’s right to a fair trial was violated. I disagree with the learned State Counsel’s submission, in the circumstances, that the provision was complied with.
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17. With the foregoing in mind, the only recourse available to correct the defect is for the court to order a retrial. But before this is done, the court must be satisfied that certain conditions have been met as was held in the case of Opicho v. Republic[2009] KLR 369,: “In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered. Each case must depend on its own facts and circumstances and an order for retrial should only be made where the interest of justice require it.” 18. The Appellant raised several issues including that the trial was undertaken on a fatally defective charge sheet. This submissions relate in reference to the charge sheet being drafted under Section 8(1)(2) of the “Sexual Offences Act No. 3 of 2006-2007”. He submitted that this was a non-existent law and therefore in contravention of Article 50(2)(n)(i) of the Constitution. In my view, the inclusion of “2007” was an error on the part of the drafter as can be clearly seen in the alternative charge which stated “ Sexual Offences Act No. 3 of 2006”. I find that the error did not affect the Appellant’s ability to prepare for his defence. It did not also lessen the fact that he took plea for the offence of defilement for which he defended himself. Simply stated, it was a technical error that is curable Section 382 of the Criminal Procedure Code. 19. On the same issue the Appellant submitted that the particulars of the offence were fatally defective as they failed to disclose that the act of defilement was unlawful. It is true that the word unlawful was not included in the particulars of the offence. The offence of defilement represents a situation in which the key elements requiring proof are age of the victim, identification of the perpetrator and penetration. It is an offence perpetrated to children. Given the fact that children cannot consent to the acts that form the basis of the offence implies that as long as the elements of the offence are proved, the offence itself is deemed unlawful. Therefore, the mere omission of the word “unlawful” does not, in the circumstances, render the charge sheet defective. 20. On the weight of the evidence,the prosecution’s case was that the Appellant dragged the complainant into his house where he undressed and proceeded to defile her leading her to scream due to the pain which drew members of the public towards the house including the complainant’s parents. The house was broken into whereupon the child was found half naked and the Appellant hiding in his bed. 21. The complainant gave cogent evidence relating to being grabbed and dragged into the Appellant’s house which was corroborated by PW2, PW3 and PW4 who were present when she was rescued. Her evidence that the Appellant defiled her was corroborated by the medical evidence which showed that there was bruising all around the vestibule which was consistent with partial penetration which under Section 2 of the Sexual Offences Act qualifies as proof of defilement. The age of the child was proved by the production of her birth certificate which indicated that she was born on 17th September, 2004 and was therefore 11 years when the offence occurred. In light of the above this court finds that there is sufficient evidence likely to result in a conviction. This is also informed by the fact that the offence holds a minimum sentence of life imprisonment which therefore indicates that the Appellant’s continued incarceration pending the retrial will not be odious to the interest of justice. 22. In the end, the appeal partially succeeds. I quash the conviction and set aside the sentence. I order that a retrial be conducted. The Appellant shall be escorted to Muthaiga Police for purposes of being presented before a court for plea taking not later than 2 nd of August, 2018. The original trial court record shall forthwith be remitted back to the trial court. Dated and Delivered at Nairobi this 25th Day of July, 2018 G.W. NGENYE-MACHARIA JUDGE In the presence of; 1. Appellant present in person 2. M/s Nyauncho for the Respondent.
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