REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MIGORI CRIMINAL APPEAL NO. E051 OF 2021 JOB NJERA AWITI...................................................................................APPELLANT VERSUS REPUBLIC...............................................................................................RESPONDENT JUDGMENT This is an appeal arising from the judgment of Hon. Langat, Senior Resident Magistrate Rongo, who on 11/3/2021, convicted the appellant Job Njera Awiti for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the charge are that on 8/10/2019, at [particulars withheld] Sub Location, Rongo Sub County of Migori County, intentionally and unlawfully caused his penis to penetrate the vagina of EAO a child aged twelve (12) years. In the alternative, the appellant faced a charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act in that he intentionally and unlawfully caused his penis to come into contact with the vagina of EAO. a child aged twelve (12) years . Upon conviction, he was sentenced to three (30) years imprisonment. No finding was made on the alternative charge. The appellant is aggrieved by the decision of the trial court and filed a memorandum of appeal in this court on 7/10/2021. He also filed submissions on 30/11/2021 in support thereof. The court gave directions that the appeal be cannvased by way of written submissions. The appeal raises the following grounds:1) That the trial court failed to comply with Article 50(2) (g) and (h) of the Constitution; 2) That the court did not indicate which language was used in interpretation; 3) That the offence of defilement was not proved to the required standard; 4) That the sentence was harsh and excessive. The appellant reiterated the grounds arguing that the court record indicates that the language of the court was three languages, English, Kiswahili and Dholuo; that he did not understand the charges; that he was never subjected to tests at the hospital to determine whether he had committed the offence and lastly, that the prescribed sentence for the offence he was charged with is twenty (20) years yet he was handed thirty (30) years imprisonment. It is the appellant’s prayer that the conviction be quashed and sentence set aside. The Prosecution Counsel, Mr. Kimanthi filed written submissions opposing the appeal. He submitted that the offence of defilement was proved because PW1 who was aged twelve (12) years knew the appellant as a neighbour; that the incident occurred at about 9:00 a.m. and hence no possibility of mistaken identity; that PW1 narrated how the accused led her into the sugar plantation, had her undressed, undressed himself and inserted his genital organ into hers. PW1 later reported the incident to her mother; that the clinical officer PW4 further confirmed that there was penetration of PW1; that the appellant raised an alibi defence which was an afterthought and did not dislodge the prosecution evidence. As regards the allegation that the court violated the appellant’s rights for failing to comply with Article 50(2)(g) and (h) of the Constitution, counsel conceded that after reading the court record, there was no evidence that the court informed the appellant of his rights under the said Article and urged the trial court to order a retrial. This being a first appeal, this court is under a duty to review all the evidence on record, analyse it and come to its own conclusions but
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bearing in mind that this court neither saw nor heard the witnesses testify. I am guided by the decision in Okeno vs Republic (1972) EA 32. The prosecution called a total of five witnesses in support of their case. PW1 EAO, the complainant, who was aged about twelve (12) years told the court that on 8/10/2019, she went to school with her brother about 7:00 a.m. but that at the parade at 9:00 a.m the head teacher asked those with fee balances to go home to get money. The brother left before her, and she walked with her friend F but they parted near F’s home. When approaching her home, she met Job Njera standing by the road side who asked if she had been sent home which she admitted; that he then gave her 70/=, took her by the hand and led her into the sugar plantation. He told her to undress, she removed her skirt and panty while he unfastened his trousers, lowered them to the ankles, then lowered his underwear; that he lay on her and inserted his penis into her private part for urination. He let her go after he finished. She did not go home but stayed at another home till about 2:00 p.m. when she was informed by Bob that her mother was at school looking for her. She went to school and when she could not explain where she had been, she was punished and she then revealed what had happened to her. By then, she had given 30/= to Angela and had 40/= which the teacher took and she was taken to Awendo Hospital by her mother. PW2 SAO, the mother of PW1 confirmed that PW1 was born on 11/4/2007 and she too identified Job Njera as a neighbour; that on 8/10/2019, her children went to school but that she found B at home at 11:00a.m. He informed her that they had been sent home for school fees; that PW1 did not arrive at home and she went to the school about 2:00 p.m, to find out how much money was required but did not find PW1. Some children went in search of PW1 and came back with her and she did not have shoes, socks and a top. she was caned when she could not explain where she had been and had money i.e. 40/=. That is when she revealed that she had been defiled by Job. PW2 took PW1 to Rongo Sub County Hospital and later reported to Ayora Police Post. PW3 Charles Odero Adege a villager elder at [Particulars Withheld] village recalled that on 9/10/2019 PW2 informed her that PW1 had been defiled by Job Awiti. He reported to the police and they started to search for the applicant who was arrested at Chamgiwadu Shopping Centre. PW4 Lilian Nyaboke, a clinical officer at Rongo Sub County Hospital examined PW1 and found that the hymen was freshly broken, had tears to the labia manora which was reddish and tender. She filled the P3 Form next day and formed the opinion that PW1 had been defiled. PW5 PC Margo Gitamo is the investigating officer who took over from another investigating officer. When placed on his defence, the appellant stated that on 7/10/2019, he was not at home but went to Karachuonyo for a burial and stayed there till 8/10/2019 and arrived back home on 9/10/2019. He got information that the Chief was looking for him and he went to Chief’s office where he was arrested. He denied knowing why he was charged. I have considered the grounds of appeal evidence tendered in the trial court and the submissions filed herein. To prove a charge of defilement, the prosecution has to prove that the following elements exist . 1) Age of the minor; 2) Proof of penetration; 3) Proof of identity of the perpetrator. Of Age: Though a birth certificate was not produced in evidence, age does not necessarily have to be proved by way of certificate only. PW2 testified that the complainant was born on 11/4/2007 and a clinical officer who examined PW1 estimated her age to be thirteen (13) years which corroborates PW2’s evidence. In the case of Flappyton Mutuku Ngui vs Republic (2012) eKLR, the Court of Appeal said:- “…..that conclusive proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in border time cases, but other modes of proof of age are available and can be used in other cases.” In Francis Omuroni vs Uganda Criminal Appeal No. 2 of 2000 the court held:- “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. A part from medical evidence, age may be also be proved by birth certificate, the victims parents or guardian and by observation and common sense.” Guided by the above cited two decisions, I find that age of the complainant was proved. It was not a borderline case. First, the court observed that the complainant was a child of tender age who did not even understand the meaning of oath, which is corroborated by PW2 and PW4’s evidence. The complainant was twelve (12) years old hence a minor.
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Proof of Penetration: Section 2 of the Sexual Offences Act defines penetration as; “The partial or complete insertion of the genital organ of a person into the genital organ of another person.” PW1 explained in detail what was done to her; that the appellant inserted his penis in her genitalia. PW3 also examined PW1 on the same day and found the hymen to be freshly torn and tears to both the labia manora and majora which is evidence of penetration. Proof of identity of the perpetrator: PWI was alone – when the incident occurred. It was in broad day light at about 9:00 a.m. when she was sent home for fees. PW1 knew the appellant before and even the appellant does admit that they are neighbours. PW1 named the appellant as the culprit on the same day of the offence. Though the appellant raised an alibi, it was but an afterthought. Some of the issues he raised in the defence, he never put questions to the witnesses when they testified. In addition, his statement was contradictory. At first, he said that he went away from home on 7 / 10/2019 till 9/10/2019. He later changed the story to say that he returned home on 8/10/2019 at night. The alibi did not dislodge the prosecution case. In my view the prosecution adduced sufficient evidence and proved the offence of defilement beyond reasonable doubt. The appellant alleged that his rights under Article 50(2)(g) and (h) were violated. Article 50(2)(g)and (h) provide as follows:(g) to choose and be represented by an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expenses, if substantial injustice would otherwise result, and to be informed of this right promptly; I have perused the Record of Appeal and nowhere did the trial court inform the appellant of his right to legal representation. The right to be informed of one’s to counsel is mandatory and cannot be limited in terms of Article 25 of the Constitution. In the case of Joseph Kiema Philip vs. Republic (2019) eKLR added his voice on the subject in the following manner: - Justice Nyakundi considered the above provision and held as follows:- ……it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate, one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced…… J. Mrima considered the same provision in Chacha Mwita =vs Republic No. 33 of 2018 and held that failure to inform an accused person of his right to counsel renders the proceedings a nullity. I am in agreement with the above cited decisions that failure to inform the appellant of his right under Article 50(2) (g) renders the trial a nullity. The result is that the conviction is hereby quashed and sentence set aside. Should the court order a retrial?. The prosecution urged this court to order a retrial. The principles upon which a court will order a retrial have been settled. In Ahmed Sumar vs. R (1964) EALR 483 the court said It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person In this case, I have earlier on considered the evidence on record and I find that the potentially admissible evidence is likely to result in a conviction. Secondly, the appellant was charged on 11/10/2019 and sentenced on 18/3/2021. He has only served about nine (9) months out of the thirty (30) years he was sentenced to. The appellant will not suffer any prejudice if a retrial is ordered. Besides, the appellant faced a very serious offence which upon conviction one is liable to life imprisonment and therefore, if the charge is proved the culprit should face the full force of the law because the complainant’s rights must be considered and protected too. In the end, I find that this is a good case where the court should order a retrial and I hereby do. The appellant will be released to police custody at Rongo Police Station and produced before the court in SPM’s Court Rongo before any other magistrate other than Hon. Langat, who wrote the judgment. Mention before Rongo Court on 29th March 2022. DATED, SIGNED AND DELIVERED AT MIGORI THIS 24TH DAY OF MARCH, 2022 R. WENDOH JUDGE
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Judgment delivered in the presence of Mr. Maatwa for the Respondent. Appellant present. Nyauke Court Assistant
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