REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KABARNET HCCRA NO. 7 OF 2017 (FORMERLY NAKURU HCCRA NO. 131 OF 2016) MOSES KIPRUTO KIPLAGAT..............APPELLANT =VERSUS= REPUBLIC..............................................RESPONDENT [An appeal from the original conviction and sentence of the Principal Magistrate’s Court at Eldama Ravine Criminal Case no. 28 of 2013 delivered on the 28th day of October 2014 by Hon. M. Kasera, Ag. SPM] JUDGMENT 1. The appellant was convicted and sentenced to imprisonment for life for the offence of defilement contrary to section 8 (1) as read with 8 (2) of the Sexual Offences Act no. 3 of 2006, the particulars of which were that he “on the 4th day of January 2013 at [Particulars withheld] village in Mogotio District within Baringo County intentionally and unlawfully did cause his penis to penetrate into the vagina of JK, a child aged 10 years.” 2. The appellant filed a Petition of Appeal on the grounds set out as follows: 1. THAT, the pundit trial Magistrate erred in both in law and fact when he convicted me in the present case yet failed to find that the charges are defective. 2. THAT, the pundit trial Magistrate erred in both law and fact when he convicted me in the present case yet failed to find that crucial and vital witnesses did not testify. 3. THAT, the learned trial Magistrate erred both in law and fact when he convicted me in the present case yet failed to find that vital exhibits were not procured and produced in evidence. 4. THAT, the learned trial Magistrate erred both in law and fact when he convicted relying on inconsistent and contradictory testimonies. 5. THAT, the learned trial Magistrate erred both in law and fact when he made a partial evaluation. 6. THAT, the learned trial Magistrate erred both in law and fact when he made a partial evaluation. 7. THAT, I pray to be furnished with a true copy of the trial copy of the trial record and pray to be present during the hearing of this appeal. 3. The appellant’s Amended Grounds of Appeal elaborated the appellant’s case as follows: 1. Identification of accused at crime scene was not proved. 2. Crucial witnesses were not called. 3. Penetration was not proved beyond reasonable doubts 4. Appellant was denied opportunity to cross-examine the purported Clinical Officer (Pw6).
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5. Appellant was prejudicially detained beyond 24 hours in police cells. 6. Language used by the trail Court was not understood by the appellant. 7. Trial Court rejected my Alibi defence without cogent reason. 8. Life-Imprisonment is inconsistent to Constitution 2010. 9. Appellant was prejudicially arrested by unknown people. 10. Medical evidence was a sham and did not attain threshold of required standard of proof. 11. Incompetent Clinical Officers not challenged by cross-examination. A collect from bush. 12. Appellant not examined forensically as required under section 36 of the Sexual Offences Act No. 3/2006. 4. The appellant further filed written submissions on the appeal. In response, the DPP made oral submissions at the hearing as follows: “Appellant I have written submission. I shall reply to the statement by the DPP. DPP Appeal is opposed. Appellant convicted of defilement contrary to section 8 (1) and 8 (2) of the Sexual Offences Act and sentenced to life imprisonment. The complainant was aged 10 years at the time of the act as per the child health card produced in Court. She was born on 2/7/2002. Appellant was positively identified by Pw1 and Pw2 when he was arrested and also in Court. Both testified that he had not covered his face at the time of the offence. It was also during the day. Pw1 testified that on 4/1/2013 at 2:00 pm she was in the shamba with Pw2 who is a neighbours child and they were looking for a cow which had gotten lost. Suddenly the appellant appeared on the road and I started chasing him. He had knife. Pw1 and Pw2 ran towards the forest and the appellant caught up with Pw1. He removed her pant and biker. He opened the zip and took out his penis and inserted into the vagina of Pw1. Pw1 wanted to scream but the appellant strangled her and hit me on the thighs many times. She testified that the appellant was wearing a black trouser and green shirt. Pw2 confirmed that she and Pw1 were chased by the appellant and the appellant caught up with Pw1 she went home and informed her grandmother of the incident. Pw3 confirmed that Pw1 had injuries on the neck which confirmed that she had been strangled. She did not check the private parts but she testified that Pw1 was walking with the leg open and she was carrying her clothes. Pw3 took Pw1 to hospital. Evidence of Pw1, Pw2 and Pw3 corroborated each other on the events. Pw6 is the Clinical Officer who testified on behalf of the examining doctor and produced the P3 according to the P3 form on examination there were no tears or blood stains. The labia minora and majora were inflamed and cervix was tender and hymen was broken. He concluded that there was vaginal penetration. In his defence, the appellant denied having committed the offence despite having been placed at the place of the defilement. Evidence is overwhelming. He pray that appeal be dismissed. Appellant in reply I reiterate the submission in the file.” Issues for Determination 5. The issues for determination in this appeal are whether the offence of defilement was proved and whether the appellant was properly
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identified as the perpetrator. Sub-set questions of validity of life imprisonment and sufficiency of evidence in the matter were raised by the appellant. The Court is always alive to its duty under the Okeno principle of review of evidence by first appellate Court. [see Okeno v. R (1972) EA 32] 6. As the Court evaluated the evidence before trial Court, it was established that the Court did not allow the cross-examination of the Clinical Officer who produced the medical evidence on behalf of the examining doctor as set out in the proceedings of the Court of 14/10/13, as follows: “14/10/2013 Coram: Before J. Omwange – RM Court Prosecutor – IP. Atonga Court Clerk – Irine Accused – present Prosecutor: One witness remains who is absent due to sick leave. Dr. Mauche, we have tried to have a Clinical Officer to produce the medical documents without success as he is attending another meeting in Nakuru. J. OMWANGE RESIDENT MAGISTRATE Accused: I had been informed that there was a last adjournment. I have no fault to what the Prosecution is doing since April to date, the Prosecution has adjourned this matter for that witness alone. J. OMWANGE RESIDENT MAGISTRATE Prosecutor: I note the accused’s sentiments but the Prosecution’s hands are tied since Dr. Mauche is sick and the Clinical Officer is attending another meeting in the Provincial Hospital. J. OMWANGE RESIDENT MAGISTRATE Court: I have noted that the matter herein has been pending for this one witness to tender evidence since April 2013. I also note that no evidence has been tendered by the Prosecution to establish that the witness is on sick leave. Justice requires that a matter is heard within reasonable time and to grant a further adjournment herein is to delay justice hence the same will be denied. The accused matter to proceed as scheduled. J. OMWANGE RESIDENT MAGISTRATE Later at 11:35 a.m. Coram as before. Prosecutor: After communicating to D.C.O. in-charge of Mogotio District she has nominated Mr. Amge to produce the medical documents. Mr. Muache is unwell as per the letter that was produced in Court pm 2nd October, 2013.
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J. OMWANGE RESIDENT MAGISTRATE Accused: No objection J. OMWANGE RESIDENT MAGISTRATE Court: Application granted. Matter to proceed at 2:30 p.m. J. OMWANGE RESIDENT MAGISTRATE Later at 3:00 p.m. Coram as before. Prosecutor: The Clinical Officer has not come back from lunch. I pray that the matter be mentioned. J. OMWANGE RESIDENT MAGISTRATE I wish to make an application under Section 77/1, 2 and 3 Evidence Act. That the Court admits the P3 and medical records that were made by public officers since they were identified and are in their original form and that the signatory in those documents be presumed to be by the officers who were holding those positions as alleged and I pray that the Investigating Officer produces the same. J. OMWANGE RESIDENT MAGISTRATE Accused: I object. The Investigating Office is not person who attended to the complaint. J. OMWANGE RESIDENT MAGISTRATE Prosecution: The Clinical Officer is in Court. I pray to withdraw and pray that the Clinical Officer does give the evidence. J. OMWANGE RESIDENT MAGISTRATE Court: Clinical Officer to tender his evidence. J. OMWANGE RESIDENT MAGISTRATE PW6: ADULT SWORN STATES IN ENGLISH MALE CHRISTIAN: I am Timothy Chesang and I work as Clinical Officer in Eldama Ravine District Hospital. I have worked at Eldama Ravine for 3 years now. I deal with patients, outpatient and inpatient. I have to testify on behalf of Dr. Anchi who indisposed and formerly worked at Mogotio Health Centre. I have seen the documents by Dr. Mauche. I saw a clinical card, and a P3 form done by Mauche, Clinical Officer and the outpatient treatment chit from Mogotio Health Centre. I understand the contents of the
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documents. Referred to MFI – 1 the child was seen at Hospital 4 th January, 2013 she was examined and treated. Referred to MFI – 2 outpatient card for a girl from Kamara. Further investigation was done for H.I.V was negative, HVS – epithelial cells there were moderate bruises at the vulva, she was put on Emergency pills and Antibiotics. Referred to MFI – 3 relates to a minor girl the clothing were dusty and muddy. There were no tears and no blood stains. Labia majora was inflamed also labia minora. The vagina was inflamed. The cervix was tender and hymen broken. Specimen was taken to laboratory in conclusion there was vaginal penetration. Referred to MFI – 4. Antenatal clinic card which regards to the minor aged 10 years. Date of birth 2 nd July, 2002. The documents now exhibit 1 – 4. J. OMWANGE RESIDENT MAGISTRATE Accused: I object to the production of the documents and the evidence by the witness. The documents should be tendered by the author of the documents. I desire that the person who made the documents be called as a witness. J. OMWANGE RESIDENT MAGISTRATE Prosecutor: I urge the Court to reject the objection and take the exhibits as presented. The reasons are clear why the maker of the document cannot attend Court. He has been in the state for over 4 months and so incompetent to testify. The witness before Court understands the documents and therefore competent to testify and able to answer questions put to him. Considering further that this are documents made by a public officer. The same may be admitted without even calling that officer unless there are serious contentions that will require the presence of the maker. I note that there is no contention on the contents of the documents save that the maker is not in Court. I submit that the documents be admitted. J. OMWANGE RESIDENT MAGISTRATE Court: Documents admitted in Court and the accused is hereby granted a chance to cross-examine the witness with regard to the evidence presented and the documents and contents there. Right of appeal examined within 14 days. J. OMWANGE RESIDENT MAGISTRATE Court: Witness stepped down until that time elapses. J. OMWANGE RESIDENT MAGISTRATE Mention 28th October, 2013. Hearing 5th November, 2013. J. OMWANGE RESIDENT MAGISTRATE 14.10.2013” 7. The trial Court, however, proceeded to rely on the evidence adduced by the witness (Pw3) when she concluded that “ penetration is also proved” as she held: “As to whether complainant was penetrated the doctor who filled the P3 form said in the examination that the minor’s clothes were muddy and dusty. There were no tears or blood stains. Complainant labia majora and labia minora were inflamed. The cervix was tender and hymen broken. The doctor’s conclusion was that there was penetration of the vagina. The doctor produced treatment notes from Mogotio Health Centre and P3 form as exhibits 2 and 3, Clinic Card or Child Health Care Card exhibit 4.” 8. Although section 77 of the Evidence Act allows production of official documentary evidence by persons other than the maker, the
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provision reserves the fair trial right of cross-examination as follows: “77. (3) When any report is used the Court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.” 9. In not allowing the accused to cross-examine the witness who produced the medical evidence, the trial Court breached the appellant’s fair trial right under Article 50 (2) (k) of the Constitution “to adduce and challenge evidence”, and the resultant conviction based on evidence for which cross-examination was not allowed is a mistrial and a nullity. 10. In the circumstances, the question arises as to whether the appellate Court should, in the circumstances of this case, order a retrial. As held in the leading case of Fatehaji Manji v. R (1966) EA 343: “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 interests of justice require it,” 11. Moreover, when considering an order for retrial, as held in Opicho v. R (2009) KLR 369, it is improper to analyze and discuss the evidence as that may prejudice the retrial if ordered: “As we stated earlier, we have no intention of analyzing the evidence on record and will not therefore discuss the submissions by Mr. Githui whether the evidence of the child was corroborated. We must first discuss whether in view of the transgression of procedure evident in the retrial, the appellant ought to be retried before another Court. If so, any analysis of the evidence on record may well prejudice that retrial.” 12. There was evidence of two minors, the complainant Pw1 and the companion Pw2, aged 10 and 8 respectively, who testified that it was the appellant who chased after them, while they were looking for their cattle in the forest, and catching up with the Pw1 threw her down and holding on to her neck and threatening her with a knife removed her inner wear and defiled her while the other child ran on home. Pw3 sought to confirm receiving the report of the incident from Pw2 and when she went home found Pw1 crying and she too reported that “ a person had strangled her, unclothed her and defiled her”, and she observed injuries on neck, which the Court minuted as “(The mark shown in Court)”. Pw6, the Clinical Officer adduced medical evidence. When put on his defence, the accused gave an unsworn statement denying the charge and stating that he was arrested while on his travels to Mogotio to [Particulars withheld] to see his sick mother reaching Tindiyon, the area of the alleged assault at 6:00 pm on the date of the alleged defilement the 4/1/2013. 13. Without analysing the evidence so as to prejudice the retrial, if ordered, I would find that there is evidence upon which a Court may on a fair trial convict the appellant. 14. Opicho, supra, set out some of the factors that may be considered on an order for retrial as follows: “[A]lthough some factors may be considered, such as illegalities or defects in the original trial; the length of time elapsed since the arrest and arraignment of the appellant; whether mistakes leading to the quashing of the conviction were entirely the Prosecutor’s making or not; whether on a proper consideration of the admissible or potentially admissible evidence, a conviction might result from a retrial; at the end of the day, each case must depend on its own particular facts and circumstances and an order for retrial should only be made where the interests or justice require it. See Muiruri v. Republic (2003) KLR 552, Mwangi v. Republic (1983) KLR 552, and Bernard Lolimo Ekimat v. Republic, Criminal Appeal No. 151 of 2004 (UR).” Whether to Order retrial 15. In this case, the serious offence of defilement of child aged 10 years in a barbaric act of chasing after and hunting down the child complainant; the prevalence of defilement cases; the length of time of 6 years since the alleged defilement; the availability of witnesses and the long custody of the appellant are all factors to be considered. 16. The appellant deserves a fair trial in accordance with the Constitution and the victim of the defilement also demands justice. Although the appellant has been in custody for 6 years, the period, even with remission, could not be said to be a substantial portion of the possible sentence of imprisonment for life, even as a maximum sentence, that may properly be imposed upon a section 8 (2) of the Sexual Offences Act. 17. In addition, the Court has no indication that the Prosecution shall not, on account of the passage of time since the offence, be able to procure the attendance in Court of the witnesses. 18. The procedural error resulting in a defective trial herein was occasioned by both the Prosecution and the trial Court in, respectively, closing and allowing the closure of Prosecution’s case before the accused had cross-examined the medical evidence witness, Pw3. 19. The heinous act of chasing after minor girls who were going about their day duties, and hunting them down and defiling them as part of larger and prevalent problem of sexual assaults on children must be punished in a fair trial that also allows the acquittal of the innocent accused persons on a case by case basis.
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Orders 20. Accordingly, from the reasons set out above, the conviction and sentence of the appellant by the trial Court for the offence of defilement contrary to section 8 (1) (2) of the Sexual Offences Act are quashed and set aside, respectively. 21. The appellant shall be retried before a competent Court at Eldama Ravine, differently constituted. 22. For purposes of directions as to the hearing, the matter shall be mentioned before the Magistrate in charge at Eldama Ravine Law Courts on Friday 5/7/19. Order accordingly. DATED AND DELIVERED THIS 3RD DAY OF JULY 2019. EDWARD M. MURIITHI JUDGE Appearances: Appellant in person. Ms. Macharia, Ass. DPP for the Respondent.
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