Maris Kasembeli v Republic

ii. That the Learned trial magistrate erred law and fact by failing to find that the appellants right to a fair trial were violated when he was not issued with witness statements. iii. The Learned trial magistrate erred law and fact by failing to find there was delay in reporting the alleged ofience which creates doubt. iv. The Learned trial magistrate erred law and fact by failing to find there was a grudge between the appellant and PW 1 father. v. The Learned trial magistrate erred fact and law when he failed to properly evaluate the evidence on record and relied on insufficient, uncorroborated and incredible evidence and came to the wrong decision that the appellant had defiled the two minors. vi. The trial magistrate erred in law by failing to note that the burden and standard of proof by the prosecution was not discharged and thus the prosecution case was not proved beyond reasonable doubt as provided for under the law. 4. The Appeal was canvassed by way of written submissions. In his submissions filed on 2nd November 2021, the Appellant argued that for an ofience of defilement to stand the three elements of the ofience must be proved: that is age of the victim, identification of the perpetrator and penetration. On the issue of identification, the appellant submitted that PW1 told his mother that someone who is a foreigner had sodomized him. Further that it was not possible that PW1 didn’t know the appellant yet he used to work for them. That other than PW2 no other witness stated that the appellant was also called Morris Makombora which name he stated was not his. 5. On the issue of age, he submitted that the same was not proved. That according to the charge sheet PW1 was 9 years old at the time of the alleged ofience. That his parents do not know when he was born and at the time of voire dire examination, PW1 stated that he was 12 years old. To support his case, he relied on a number of Court of Appeal decisions including Eliud Waweru -vs- Republic CR. APP. No. 102 of 2016. 6. On the issue of unfair trial, he argued that he was not supplied with witness statements despite requesting for them severally. He quoted several cases to support this ground including the supreme court of India decision in Natasha Singh-vs- CBI [2013] 5 SCC 741 and also the Kenyan Case of George Ngodhe Juma & 2 others -vs- The Attorney General Misc Criminal Application 345 of 2001. 7. On the issue of contradictory and inconsistent evidence, he argued that the prosecution case is riddled with contradictions. He stated that PW1 testified that the ofience was committed on 22/4/2016 by a foreigner. PW5 in his testimony stated that PW1 was sodomized 3 times. That the inconsistency was whether the complainant was sodomized once or three times. He relied on the Court of Appeal decision in John Mutua Musyoki -vs- Republic (2017), Criminal Appeal No. 11 of 2016. 8. He also submitted that PW1’s father had a grudge against him. He stated that PW2 confirmed in her evidence that they had not paid him for working for them. Also, that PW1’s father had hidden the child from being taken for age assessment after knowing his mission to have the accused arrested was complete. He urged that the appeal be allowed, the conviction be quashed, the sentence be set aside and the Appellant be set free. 9. There are no submissions on record for the prosecution. 10. After considering the evidence, the grounds of appeal and rival submissions, I have identified the following two (2) issues as the grounds arising from this Appeal: https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3253/eng@2022-05-16 2

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i. Whether the ingredients of the ofience of defilement have been proved beyond reasonable doubt. ii. Whether the Appellant was accorded a fair trial. 11. It is my duty to subject all the evidence adduced in the lower court to scrutiny with a view to arriving at an independent decision. I give allowance that I did not observe the demeanour of witnesses as they testified. The duty placed on the first appellate court to consider and evaluate afresh the evidence before the trial court is meant to ensure that ends of justice are met. It is in considering, analysing and evaluating the evidence afresh that the first appellate court is able to note any errors that may have occurred in the trial and correct them in the appeal. 12. I have read the evidence. It is simple. PW1 told the court that the Appellant enticed him with doughnuts and also threated him that he would cut him if he did not go with him to his house. PW1 obeyed and went to the house of the Appellant. While in the Appellant’s house, the Appellant sodomized him. PW1 described the act that the Appellant used his penis to sodomize him and threatened to cut him if he told anyone. He called the Appellant Morris. 13. PW1 did not tell anyone what had happened. His mother, LM (PW2) was away when this happened. According to her evidence, PW1 told her that Morris had sodomized him. He called the Appellant Morris Makombora and said that was the name he knew the Appellant by and that the Appellant used to work in their home but had moved away when the act happened. 14. From the evidence, PW1 and PW2 do not state when they reported the matter to the police or when PW1 was taken to hospital but according to the evidence of PC John Lekakimon, PW5, he received a report on 27th April 2016 that Morris Kasembeli had sodomized a child aged 9 years. Richard Tempe, PW4, testified that he examined PW1 on 28th April 2016, the same day the Appellant was arrested according to the evidence of MMN, PW3, a step-brother of the Appellant. PW4 examined PW1 and found lacerations in the anal area confirming he had been defiled. 15. The Appellant has raised the issue of insufficient evidence to prove the elements of the ofience. I have examined this evidence and find that the Appellant was known to the family of the Complainant. PW1 was clear that it was Morris who had defiled him. The Appellant was known to him. I find the evidence has proved the identity of the Appellant as the perpetrator and penetration as defined under Section 4 of the Sexual Offences Act. 16. In regard to the age of the complainant, the evidence shows that age assessment was conducted on PW1 on 8th December 2017 at Kajiado /county Referral Hospital. He was found to be 12-years old. This was one year after he was defiled. The estimation that he was aged 9 years at the time of his defilement was 3 years younger. This assessment confirms that as at April 2016, PW1 was about 11 years, still within the age bracket under Section 8 (2) of the Sexual Offences Act. It is therefore clear from the evidence that all the 3 elements of defilement have been proved beyond reasonable doubt. I cannot fault the trial court on making a similar finding. 17. I have considered the issue of contradictory evidence. PW5 is the only witness who stated that PW1 was defiled three times. It is not clear where he got this evidence since neither PW1 nor his mother PW2 testified to defilement three times. PW5 was acting on the report made to him and he may have exaggerated a little. It is clear to me that PW1 and PW2 talked about the ofience having been committed on 22/4/2016. https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3253/eng@2022-05-16 3

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18. PW5’s testimony is inconsistent to that of PW1 and PW2. However, it is my finding that this inconsistency is not prejudicial to the Appellant. The issue of inconsistencies was considered in Phillip Nzaka Watu v Republic [2016] eKLR, where the Court of Appeal observed that: “ …when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 20. It is my considered view that the inconsistencies in this case do not go to the root of the evidence. It is the evidence of the police officer who received the report from the reportees. 21. On the issue of unfair trial due to the failure to supply the Appellant with the witness statements, I have read the record of the lower court proceedings. It is true it shows that the Appellant kept on making application after another that he had not been supplied with witness statements and the court is on record as making orders that the Appellant be supplied. There is no indication on record as to whether he was ever supplied. This is why he is raising the issue. Given that the record does not indicate that he was supplied with the statements, I will take his word that he was not. 22. The Law under Article 50(2)(j) provides that “Every accused person has the right to a fair trial, which includes the right (j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.” 23. On this point, I agree with the Appellant on his submissions and the authorities he has cited to support that point. I am persuaded by the High Court decision in Joseph Ndungu Kagiri v. Republic [2016] eKLR where the court had this to say on the right of an accused person to a fair trial: “ The right to a fair trial is a norm of international human rights law designed to protect individuals from the unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms, the most prominent of which are the right to life and liberty of the person. It is guaranteed under Article 14 of the International Covenant on Civil and Political Rights (ICCPR).[13]The fundamental importance of this right is illustrated not only by the extensive body of interpretation it has generated worldwide but, by the fact that under article 25 (c) of our constitution, it is among the fundamental rights and freedoms that may not be limited. The right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence is expressly provided for in our constitution. 24. Even before the 2010 Constitution came into being, the Court of Appeal in Thomas Patrick Gilbert Cholmondeley vs. Republic,[2008] eKLR stated categorically that: “ We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under… our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial; all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items.” In arriving at this holding, the court cited https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3253/eng@2022-05-16 4

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common law duty as well as comparative decisions from various jurisdictions including the UK, Canada and Uganda…..” 25. It is clear to me that the Article 50 (2) (j) of the Constitution was violated. It is on record, on several occasions, that the Appellant asked to be supplied with statements. This request has been acknowledged by the trial court and the prosecution who undertook to supply the statements but failed to do so. The learned trial magistrate also failed in ensuring that the orders of the court were complied with. 26. There is no two ways about it. Failure to supply the Appellant with statements meant that he was denied his constitutional right to a fair trial. It meant that he could not prepare his defence in advance in order to conduct his case as required under our law. 27. While I find that the ofience of defilement has been proved beyond reasonable doubt, failure by the trail court to accord the Appellant fair trial impacts negatively on this trial. This court, sitting on appeal, cannot uphold the conviction and sentence, even though the evidence before it proves beyond reasonable doubt the ofience of defilement. 28. In the end this appeal is allowed with the consequence that the conviction is hereby quashed, the sentence set aside and the Appellant Maris Kasembeli, set free. It is so ordered. DATED, SIGNED AND DELIVERED THIS 16TH MAY 2022. S. N. MUTUKU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/3253/eng@2022-05-16 5

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