(Being an appeal from the conviction and sentence by Hon. R. 0 Mbogo (SRM) IN CM,S COURT AT SHANZU IN CR CASE S.O 027 0F 2022
1.The genesis of the Appeal is that the appellant was charged with an offence of rape contrary to section 3(1)(a) (c) as read with section 3(3) of The Sexual Offences Act No. 3 of 2006 on 21st February 2022 before Hon. D. Odhiambo the resident Magistrate at Shanzu Law courts. The case against the Appellant commenced on 27th September 2022 and the state three (3) witnesses testified before the Hon D Odhiambo . He was then transferred in March 2023 having handled the matter up to the Ruling stage and after taking directions under section 211 of the CPC.
3.The matter was taken over by his predecessor Hon. A.G Mukami , Principal Magistrate on 18th May 2023. On that date, the record at page 17 shows that defence intimated they wished the case to start de novo.. The record shows that he said he wanted all the witnesses to be recalled. He added that all the witnesses did not testify. The prosecution state counsel objected. She said that they had availed all the relevant witnesses and the accused had been placed on his defence. That it would be traumatic to have the complainant recalled.
4.The court set down the matter for directions on 19th May 2023. On the 19th of May 2023 ,the directions were adjourned to 22nd May 2023. On this 22nd may of 2023, HON Mukami also indicated that she was equally going on transfer and the most prudent thing was to place the file before the incoming court.
5. On the 21st of June 2023, the matter was now before Hon R.0 Mbogo . SRM. This is at page 19 of the record.
Its reflects as hereunder;
Accused-" Let the matter start de novo so that I can be understand well (sic)”
Prosecution counsel; “ It is not a reason to start de novo. All was recorded , not fair to start afresh. Its causing trauma”
court direction ; “Section 200 (3) is not absolute. Court has to use discretion. Trusting that this is a sexual offence charge, it will not be fair to subject the complainant to the same ordeal .The matter shall proceed from where it had reached.’’
I have started with this background since the bulk of the appeal is on the legal aspects. I will deal with them first before delving into the evidence
.
6.. Section 200(3) of the Criminal Procedure Code Provides that;-
“200. (1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may -
(a) deliver a judgment that has been written and signed but not delivered by his predecessor; or
(b) where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.
(3) 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 re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right”
7. There a wealth of authorities on this. Justice J . A MAKAU IN PETER ONYANGO ODONGO (2015)eKLR stated thus;
Section 200 (3) of the Criminal Procedure Code is intended in my view to address the mischief that may arise when a succeeding Magistrate commences hearing of proceedings where part of the evidence had been recorded by his predecessor, without explaining to the accused of his rights to re-summon or recall witnesses who had given evidence before the succeeding magistrate’s predecessor, for cross examination if need be. The Section is intended to protect the rights of an accused to a fair trial and give the succeeding Magistrate an opportunity to note the demeanor of the witnesses to enable Court make a just decision.
8. It should be noted Section 200(3) of C.P.C. gives an accused person an opportunity to demand to have any witnesses recalled. This Section makes it mandatory for succeeding Magistrate to inform the accused person of his right to have any of the witness recalled for cross-examination or to testify again. It should be noted it is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned with but it is mandatory to explain the accused his rights, the failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity.
9.. Section 200 (3) of C.P.C. entrenches the accused rights to a fair trial as constituted under Article 50 (1) of the Constitution of Kenya 2010.
10. In the case of Ndegwa V. Republic [1985] KLR at 534 the Court of Appeal stated:-
“Section 200 is a provision of the law which is to be used very sparingly indeed, and only in cases Magistrate does not, or is not allowed to adopt and continue a criminal trial started by a predecessor or owing to the latter becoming unavailable to complete the trial.”
11. In the case of R V. Wellington Lusiri [2014] eKLR the Court emphasized the need for succeeding Magistrate to continue with the proceedings under Section 200 by informing the accused of his rights. The judge said ;
. In my view Section 200 (3) of the Criminal Procedure Code protects the rights of the accused to a fair trial as guaranteed by the constitution under Article 5O. (2) of the constitution which states every accused person has the right to a fair trial, which includes other rights as set out thereunder. Section 200 (3) of CPC as couched or framed does not have any provision to protect the rights of the complainant. It is silent on the rights of the complainant.
12.The question therefore is do the silence on the rights of the complainant under Section 200 (3) CPC mean the complainant's rights are not protected? The succeeding Magistrate before determining the accused demand for retrial or recalling or re-summoning of any of the witnesses, in my view, as Section 200(3) is not mandatory for the accused demand to be granted or to be allowed, the succeeding Magistrate is not supposed to deal with Section 200 (3) of C.P.C. in isolation of several articles of the constitution dealing with the Bill of Rights as Section 200 (3) of CPC is not exhaustive in itself. The succeeding Magistrate is supposed to be guided by Article 27 (1) of the constitution, which states every person is equal before the law and has rights to equal protection and equal benefit of the law. This means the protection to fair trial is automatically granted to both the complainant and the accused. This means as I understand the said article, before final order is made on the accused demand in terms of section 200 (3) CPC the complainant should be afforded an opportunity to be heard on the application. A blatant granting of the application without hearing the complainant would in my view not only be against the rules of natural justice but would amount to a violation of the letter and the spirit of our constitution and would not be in the best interest of achieving a fair trial, If the complaint is completely overlooked on the issue.
13.. In considering Section 200 (3) C.P.C. as regards the information given to the accused, the same information should be extended to the complainant in equal measure, Article 159 (2) (a) (b) and (d) of the constitution deals with justice to all irrespective of status, justice not being delayed and being administered without undue regard to procedural technicalities. That the accused and the complainant should get justice without delay and should be administered without undue regard to procedural technicalities. That the accused and the complainant are entitled to justice without procedural technicalities and discrimination.
14. The Court in determining an application under Section 200(3) of C.P.C. should comply with Article 28 of the constitution which provides every person has inherent dignity and the right to have that dignity respected and protected. Further under article 47(1) of The Constitution every person has the right to administrative actions that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 53 (d) of the constitution states every child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment and Article 53 (2) provides a child's best interest are of paramount importance in every matter concerning the child.
15. I have quoted at length from our constitution to demonstrate the deficiency that one can be faced with while dealing with section 200 (3) CPC in isolation of various relevant articles of the constitution. Further it should be borne in the mind of any judicial officer, that under Article 2 (1) of the constitution, the constitution is the supreme law of the Republic of Kenya and it binds all persons and all state organs at both level of government and that under Article 2(4) that any law, including customary law, that is inconsistent with that constitution is void to the extent of the inconsistency, and any act or omission in contravention of the constitution is invalid.
16. Having said so much about the purpose of Section 200 (3) C.P.C. and noting its purpose is to protect the rights of an accused person to a fair trial. Section 2003) CPC in my view needs to give the complainant the right to have his/her views heard before witnesses are either recalled or re-summoned. 17.I find in spite of the Section having several deficiencies in regard to the rights of the complainant and the same being not automatic for Court to re-summon or recall witnesses, or allow the matter to start de novo, after explaining the accused his rights, that Section 200 (3) of C.P.C. is not unconstitutional as the Court is obligated to apply several articles of the Constitution to ensure that both the complainant and the accused constitutional rights are not violated or infringed or breached nor does it violate article 50 of the Constitution of Kenya 2010..
18.In Ndegwa V. R (Supra) it was held that Section 200 (3) CPC should sparingly be applied. The application of Section 200 (3) C.P.C. in my view is commonly abused especially where the application is made with a view to defeat the ends of justices and specially where the accused knows the witnesses cannot be traced or are dead or the complainant cannot be traced or cannot get the witnesses without enormous expense or the application is made to cause witness have no faith with the court system and fail to turn up or where the case has been pending for long period without being determined, such applications for witnesses to be recalled in my view should not be granted specially where the accused has had the opportunity to cross-examine witnesses and specifically where the matter had been pending for a long time. This is because granting such an application, court may be acting contrary to article 47, 50 (2) (e) and 159 (2) (d) of the constitution which demands that justice shall not be delayed, and trial should be concluded without unreasonable delay and lastly every one has a right to administrative action that is expeditious, ..
19. Section 200 (3) of Criminal Procedure code provides where a succeeding Magistrate commences the hearing of proceedings where part of the evidence has been recorded by his predecessor, the accused person may demand that witnesses be re-summoned and reheard and the succeeding Magistrate shall inform the accused person of his right.
20. In the instant case the succeeding Magistrate Hon. M.S AG MUKAMI, had since been transferred and the Appellant’s main complaint is that the court did not comply with the mandatory bit and explain to him his rights to recall the witnesses. Indeed it is true the court did not explain these rights to the Appellant. One must however ask what was the intention of that requirement? Is it just blind compliance? The court thinks not. As set out in the authorities set out above, the section is to facilitate a fair trial.
21.In this case we have an Appellant who appears to have fully known his rights for he is the one who made the Application to have the matter start afresh. He made this application not once but twice. The first time before Hon Munene and the second before Hon Mbogo. On the two occasions the record shows that he is the one who applied for the case to start afresh and the prosecution counsel objected. Eventually the court gave its directions that the hearing would go on.
22. I am satisfied that the accused person fully comprehended that there was a change in the magistrates and he could have the witnesses recalled. He exercised that right. The court however did not agree with him . Having looked at the entire record., I am satisfied that his right to a fair trial was not prejudiced at all and that ground of appeal fails.
22.The next limb of Appeal was that section 122A 0f the penal code was not complied with . That he did not give his consent to have the DNA sampling and the police did not follow the correct procedure.
24. Although The Appellant who is acting in person he did not expressly state so, I understood his arguments against self-incrimination to be premised on Art 50(2)(l) and that of privacy to be premised on Article 31(a-c). The respective provisions are as follows:
“. Every person has the right to privacy, which includes the right not to have— (a) their person, home or property searched; (b) their possessions seized; (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of their communications infringed”
and
“50. (2) Every accused person has the right to a fair trial, which includes the right—
(a) ....
....
(l) to refuse to give self-incriminating evidence”
25. The statutory position with regard to blood sample provision in criminal cases is contained in Sections 122 A-D of the Penal Code. The provisions are in the following terms:
“122A. Senior police officer may order DNA sampling procedure on suspect
(1) A police officer of or above the rank of inspector may by order in writing require a person suspected of having committed a serious offence to undergo a DNA sampling procedure if there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence.
(2) In this section—
“DNA sampling procedure” means a procedure, carried out by a medical practitioner, consisting of—
(a) the taking of a sample of saliva or a sample by buccal swab;
(b) the taking of a sample of blood;
(c) the taking of a sample of hair from the head or underarm; or
(d) the taking of a sample from a fingernail or toenail or from under the nail, for the purpose of performing a test or analysis upon the sample in order to confirm or disprove a supposition concerning the identity of the person who committed a particular crime;
“serious offence” means an offence punishable by imprisonment for a term of twelve months or more.
122B. Suspect to comply with order
Where a suspect in respect of whom an order has been made under section 122A resists compliance with the order, members of the police force, under supervision of an officer of or above the rank of inspector, shall be entitled to use reasonable force in restraining the suspect for the purpose of effecting the procedure.
….
122D. Order or consent to be proven
The results of any test or analysis carried out on a sample obtained from a DNA sampling procedure within the meaning of section 122A shall not be admissible in evidence at the request of the prosecution in any proceedings against the suspect unless an order under section 122A or a consent under 122C is first proven to have been made or given.”
26..From a purely statutory standpoint under the Penal Code provisions, it appears that a police inspector, or above, has authority to order a suspect to provide a blood sample under the following criteria. First, that the person from whom the sample is sought is suspected of having committed a serious offence; second, that there are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect committed the alleged offence; third, that the sample may help confirm the identity of the person who committed a particular crime. The Appellant's quarrel is on the written consent and his right to privacy.
27. The right to privacy is recognized in common law as an independent personality right, as it is under our constitution. Undergirding it is the concept of the individual’s dignity. It denotes, in relation to one’s body, the existence of a sphere of individual inviolability. This includes the protection of one’s body from intrusions by the state and others and the correlated right to bodily autonomy or self-determination against interference or molestation. (See generally The Bill of Rights Handbook, Iain Currie and Jonathan De Waal 6th Ed 2016). Thus, the right to privacy is simply the right to be left alone. It guarantees your inherent right to ensure your private details are not publicly consumed without your consent.
28.. Here in Kenya, in the case of E M W K & Another v Attorney General & 3 others [2017] eKLR Const Pet 347 of 2015, it was held that the petitioner, a girl who had been strip searched by the police, had had her privacy and dignity violated. In that case, Mativo J drew a connection between privacy and dignity stating:
. Article 31 of the Constitution provides the Right to Privacy of the person, home or property searched. It has become established law, insofar as privacy is concerned, that this right becomes more powerful and deserving of greater protection the more intimate the personal sphere of the life of a human being which comes into legal play..…
. There is a connection between an individual’s right to privacy and the right to dignity. Privacy fosters human dignity insofar as it is premised on and protects an individual’s entitlement to a “sphere of private intimacy and autonomy.” The rights of equality and dignity are closely related, as are the rights of dignity and privacy.”
29. In the case of S v Orrie 2005 (1) SACR 63 (C), the High Court in South Africa held that the involuntary taking of a blood sample for the purposes of DNA sampling infringed both the right to bodily security and integrity, but that the infringement was justifiable. That court also held that suspects must be advised of their status as suspects.
30.. In the EMWK case, Mativo J also found that although the right to privacy is protected in Kenya, it is not an absolute or illimitable right, when he stated:
“. A strip search constitutes an interference with the privacy of the individual concerned. It is recognized that common law recognizes the right to privacy as an independent personality right. Privacy is therefore, a valuable aspect of one's personality. The right to privacy is protected in terms of both common law and the Constitution of Kenya. The right is however not absolute as there are competing factors such as maintaining law and order that can bear a significant limitation on the right. A careful weighing up of the right to privacy and other factors is necessary.”
31. Article 25 of the Constitution sets out the rights that are incapable of limitation. As they do not include the right to privacy, I consider that an accused person’s right to privacy can be subjected to statutory limitations such as those in the Penal Code.
32. In John Kithyululu v Republic (Voi High Court Crim. Case No. 12 of 2015) Kamau Jn held as follows:
“17. Accordingly, having had due regard to the oral submissions by counsel for both the Appellant and counsel for the State, this court came to the firm conclusion that without a statutory provision in place, there were practicable difficulties in enforcing the order that had been sought by the Prosecution. Indeed Parliament deemed it fit to specifically provide for taking of DNA samples from persons accused persons of committing sexual offences in the Sexual Offences Act to prevent questions of enforcement of such orders.
33. If it was the intention of Parliament that all that was required was a court order to extract blood sample from a person charged with any other offence other than a sexual offence, then nothing would have been easier than for Parliament to have enacted a law to that effect.
Having said so, it is clear from the aforesaid decided cases that an Accused Person’s right against self-incrimination constitutes giving oral or documentary testimony against himself and does not extend to taking of blood samples to prove a particular fact. There is therefore only a bar of communications and testimony by an Accused Person.
…
Article 50(2)(l) of the Constitution of Kenya therefore only related to communication that may be obtained from an Accused Person through coercion, unfair or unconstitutional means. For the foregoing reasons, this Court was not persuaded by the Accused Person’s submissions that there would be a violation of rights under the provisions of Article 50(2)(l) of the Constitution if his blood sample was taken because taking of samples is per se not unconstitutional or an infringement of an Accused Person Person’s rights.
34. Ön his part, Majanja J in the consolidated petition of Richard Dickson Ogendo& 2 others v Attorney General & 5 others [2014] eKLR stated as follows when he encountered this question:
“To my mind the, the privilege of an accused person not to incriminate himself, protects against compulsory oral examination for the purposes of extorting unwilling confessions or declarations implicating the accused in the commission of the crime.
35,. In the present case, the Appellant complaint is that no order of the court to was obtained requiring the appellant to avail a buccal sample for purposes of criminal law administration... The appellant seems to suggest that the swab was taken on 25th of august 2022 when he was remanded at Kiembeni police station . His argument is the investigating officer only said that he was to be investigated for other offences and he did not mention that DNA sampling was to be done.
36..I have looked at the record and the exhibit memo is dated 16th February 2022. It was produced as pext 3. This is the date when the offence took place. The samples which were taken to the government chemist on 21st February 2022 included the buccal swab marked z belonging to the Appellant. The report by the government analyst PEXT 4 , is dated 27th April 2022. This is way long before the time the date the Appellant alleges the sample was taken.
37.The record shows that on 21st march 2023, the government analysist one Omar Maridadi PW2 , produced the report . The Appellant did not object to its production and he did not raise any issue as to how the sampling was done. He is raising it now long after the horse has bolted and that cannot impeach that evidence.
38. Therefore In the present case, I see no reason to deviate from the general rationales given in the authorities cited. I think the correct position is that extraction of buccal swabs for sampling by DNA does not amount to obtaining evidence of a testimonial or communicative . Further the consent is not mandatory where sufficient reason has been give and therefore the rights of the APPELLANT were not breached.
39. With the technicalities behind us we now evaluate the evidence as is require of the first Appellate court. Okeno Vs R
40. The key ingredients to be proved in a rape case are;
Lack of consent, penetration and identification.
41. On consent PWI testified that when the appellant told her he wanted to have sex with her, she refused and told him to leave her alone. That he then dragged her into his house, tore off her clothes and hit her. That he over powered her and had sex with her. That he then chased her out of his house naked and she had to go into a neighbor’s hose to borrow a dera to wear. She reported that very night and she was examined. The PRC FORM and the p3 show that she had bilateral facial swelling, racoon eyes and swollen lower lip. The left knee also had a scratch and there were vaginal abrasions.
42. In his defence, the Appellant said the victim used to be his girlfriend but they parted ways. That on the fateful night she was drunk and was beaten elsewhere. That she wanted him to host him but he declined. She then abused him . that the charges were fabricated so that they can grab his shamba.
42..I have looked at the two conflicting versions. Like the trial court, who even had the opportunity to observe the witnesses, I am persuaded the victim was telling the truth. The injuries noted point at violence and this rules out any consent. The abrasions and presence of spermatozoa confirm penal penetration . On the identity I note that the parties were very well known to each other and accordingly it was not a case of mistaken identity. As per the grudge and shamba I note the Appellant did not cross examine the victim on it and consequently it was an afterthought.
44.Accordingly I find that the trial court applied the proper principles of the law, and analyzed the evidence well. There is no need to disturb the Conviction
45. The sentence was also commensurate with the offence.
46.The Appeal on both the conviction and the sentence is accordingly dismissed .
47.It is so ordered
Dated and signed and Delivered virtually this 31st Day of July, 2024 _
WENDY KAGENDO
JUDGE
Delivered in the presence of;
Appellant in person
Ms Maina for the state
Bebora court assistant