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JudgmentDENNIS ONYANCHA NYAMONYO VS The Republic13 min read

DENNIS ONYANCHA NYAMONYO VS The Republic

High Court at Nyamira High Court · · Wilfrida A. Okwany

(Being an Appeal from the original conviction and sentence in the Chief Magistrate’s Court at Nyamira, in Criminal Sexual Offence Case No. 74 of 2020 by Hon. C.W. Waswa, Resident Magistrate delivered on 4th August 2021)

  1. The Appellant herein, Dennis Onyancha Nyamonyo, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act ( the Act). The particulars of the charge were that on the 28th July 2017 at Bokurati Sub-Location in Nyamira North Sub-County in Nyamira County, intentionally and unlawfully caused his penis to penetrate the vagina of L.K.A. (particulars withheld), a child aged 14 years.
  2. The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 28th July 2017 at Bokurati sub-location in Nyamira North Sub-County in Nyamira County, he intentionally and unlawfully caused his penis to come into contact with the vagina of L.K.A. (particulars withheld), a girl aged 14 years.
  3. The Appellant pleaded not guilty to the charges and a trial was thereafter conducted in which the Prosecution called a total of 4 witnesses. After a full trial, the appellant was found guilty on the charge of defilement. He was convicted and sentenced to serve twenty (20) years imprisonment.

The Appeal

  1. Aggrieved by the trial court’s decision, the Appellant instituted an appeal wherein he raised eight (8) grounds of appeal as follows: -
  2. THAT the Learned Trial Magistrate erred both in law and fact by convicting the appellant despite graving (sic) contradictions and inconsistencies testimonies(sic) from the Prosecution side thus make (sic) his conviction unsafe. 
  3. THAT the Learned Trial Magistrate erred both in law and facts without informing the Appellant of his right to be represented as enshrined in Article 50 (2) of the Constitution of Kenya.
  4. THAT the Learned Trial Magistrate erred both in law and fact by, notwithstanding (sic) that the Appellant’s rights were violated where he was detained in the police cell for more than one month without any cogent reason neither from the court of law to grant detention (sic) as enshrined in the Constitution of Kenya 2010, Article 49 (1) (f) (i).
  5. THAT the Learned Trial Magistrate erred both in law and fact by using shoddy and scanty investigation report to convict the appellant herein.
  6. THAT the matter of defilement before the Court was out of a domestic feud that existed between the girl’s family and his family over land dispute.
  7. THAT further, the Learned Trial Magistrate erred both in law and fact by convicting the appellant using a malice (sic) and shambolic medical report.
  8. THAT the Learned Trial Magistrate equally faulted in both law and facts without noticing that the charge sheet was defective.
  9. THAT more grounds shall be adduced during the hearing of the appeal.
  10. The Appellant sought orders that his appeal be allowed, sentence set aside, conviction quashed and he be set at liberty.
  11. The respondent, on the other hand, opposed the appeal and filed submissions challenging the grounds of appeal.
  12. The Appeal was canvassed by way of written submissions which I have considered.
  13. The duty of a first appellate court was explained in the case of Coghlan vs. Cumberland (1898) 1 Ch. 704 in which the Court of Appeal (of England) held: -

“Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.”

The Prosecution’s Case

  1. PW1, the victim herein minor testified that she was 17 years old having been born on 3rd June 2003. She produced her Birth Certificate as (P.Exh1). She stated that she was on 28th August 2017 on her way from herding cows when she met the Appellant who slapped her, held her by the neck and took her to a maize plantation where he defiled her. She informed her aunt (PW2) of the attack.
  2. PW2, Jane Kerubo, the victim’s aunt testified that the victim informed her of the sexual assault on 28th July 2017 after which she escorted her to Ekerenyo Hospital for treatment. She later reported the incident to the police at Ekerenyo Police Station. She testified that the area Chief arrested the Appellant on a Tuesday over an allegation that he had assaulted an old lady.
  3. PW3, Pius Moseti, the Clinical Officer, examined the victim on 28th July 2017 and noted that there were dry blood stains on her innerwear. He also noted that the victim had a swollen and tender left cheek, tenderness on the anterior neck with a bruised labia majora and mucus substance on the surface of the labia. He noted that the victim’s hymen was also freshly broken. Laboratory results indicated red blood cells on the vaginal swab with sperm and epithelial cells. He assessed the age of the injury as 2 hours and concluded that there was evidence of penetration. He also stated that the dry blood stains on the torn underwear were a sign of struggle. He produced the victim’s Attendance Card/Treatment Notes as (P.Exh2) and the P3 Form as (P.Exh 3).
  4. PW4, No. 75171 P.C. Sgt. Chepkorir Mengich, was the Investigating Officer. She testified that PW2 and the victim reported to the station on 6th August 2020 that a suspect who had defiled PW1 in 2017 had been arrested in an assault case. She noted that the Appellant, who was then in the police cells having been arrested on an assault allegation, also had a defilement report in OB No.28/7/2017 recorded under No. 26. She then charged the Appellant with the offence of defilement.
  5. Before the close of the Prosecution’s case, the Prosecution Counsel made a successful application to recall the victim who clarified the date of the offence as 28th July 2017.

The Appellant’s Case

  1. The Appellant (DW1) testified that he did not know the complainant. He stated that he used to live with PW2 because his mother was sick and that PW2 framed him in the case because she wanted to sell their land for Kshs. 36,000 but he had objected to the intended sale to the chagrin of his aunt and her husband. He further claimed that PW2 and her husband would torture him by forcing him to plough the land at night before he could go to school.
  2. DW1 further testified that he was, on 5th August 2020, leaving his place of work at a construction site Sondu when he met many people along the road who chased him into a house where he was thereafter arrested and charged with the offence of assault. He stated that he was later charged with the offence of defilement after which PW2 went to the police station to ask him to sanction the sale of the land but he declined thereby leading to the charge with the offence of defilement. 

Issues for Determination

  1. The main issues for my determination are: -
  2. Whether the charge was defective.
  3. Whether the Appellant’s constitutional rights were violated.
  4. Whether the offence was proved to the required standard.
  5. Whether the sentence was just and legal.

Analysis and Determination

  1. Whether the charge was defective.
  2. Section 134 of the Criminal Procedure Code which states as follows on the contents of a charge: -

134. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

  1. The Appellant argued that the charge was defective because the dates disclosed therein were not the same as the dates that the witnesses testified about in their evidence. He submitted that while the victim testified that the offence occurred on 28th July 2017, the charge indicated that the offence occurred on 28th August 2017.
  2. The Court of Appeal explained that a charge can be defective if the evidence is at variance with the particulars in the case of Peter Ngure Mwangi vs. Republic [2014] eKLR, where it was held thus: -

“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edn), page 52 paragraph 53, this Court stated in YONGO v R, [198] eKLR that:

“In England it has been said: An indictment is defective not only when it is bad on the face of it, but also:

(i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed  therein,

(ii) when for such reason it does not accord with the evidence given at the trial.”

  1. A perusal of the charge sheet reveals that the offence was recorded to have occurred on 28th July 2017 and not 28th August 2017 as alleged by the Appellant alleged. The only discrepancy that I noted was that during the examination-in-chief, PW1 the victim stated that the offence occurred on 28th August 2017. I however note that the Prosecution recalled the victim who clarified that the offence was committed in July and not August. I have also considered the evidence of PW2 who stated that the victim was defiled in July while PW3 stated that the victim was examined on 28th July 2017. It is clear therefore clear that the offence was committed July 2017.  I find no defect in the charge sheet.
  2. Whether the Appellant’s constitutional rights were violated.
  3. The rights of an accused person are enshrined under Article 49 of the Constitution as follows: -

(1) An arrested person has the right--

(f) to be brought before a court as soon as reasonably possible, but not later than-

(i) twenty-four hours after being arrested; or

(ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;

  1. The Appellant submitted that he was detained for more than a month before he was presented in court and that the Prosecution did not give an explanation for the delay in presenting him in court. He cited the decision in the case of Albanus Mwasia Mutua Vs. The Republic, Cr. Appeal No. 120 of 2004, where it was held that, upon determination that the constitutional rights of the applicants had been violated, any prosecution against such a person was null and void regardless of the strength of the Prosecution’s case.
  2. A perusal of the trial record reveals that while the Appellant was arrested on 6th August 2020, he however first took plea on 15th September 2020.
  3. In the case of Albanus Mwasia Mutua vs. The Republic (supra), the Court of Appeal addressed itself on this issue and held thus:-

“At the end of the day, it is the duty of the courts to enforce the provisions of the Constitution, otherwise there would be no reason for having those provisions in the first place.  The jurisprudence which emerges from the cases we have cited in the judgment appears to be that an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of evidence which may be adduced in support of the charge.  In this appeal, the police violated the constitutional right of the appellant by detaining him in their custody for a whole eight months and that, apart from violating his rights under section 72 93) (b) of the Constitution also amounted to a violation of his rights under section 77 (1) of the Constitution which guarantees to him a fair hearing within a reasonable time.  The deprivation by the police of his right to liberty for a whole eight months before bringing him to court so that his trial could begin obviously resulted in his trial not being held within a reasonable time.  The appellant’s appeal must succeed on that ground alone.”

  1. The jurisprudence in this regard has tremendously evolved since the decision in the Albanus case (supra). While this Court appreciates the principles in that case, it is also cognizant that in the said case, the Prosecution had been afforded an opportunity to explain the delay in arraigning the accused person for 8 months after his arrest but failed to do so. It follows that, it is not automatic that an accused person would be released from prison on account of the delay in being charged within the stipulated timelines. In Eliud Njeru Nyaga vs. Republic (2007) eKLR, the Court of Appeal stated:-

“While we would reiterate the position that under the fair trial provisions of the constitution, an accused person must be brought to court within twenty-four hours for non-capital offences and within fourteen days for capital offences, yet it would be unreasonable to hold that any delay must amount to a constitutional breach and must result in automatic acquittal.” 

  1. In Gerald Macharia Githuku vs. Republic (2007) eKLR the Court of Appeal reiterated the sanctity of the court’s duty to uphold the constitutional rights of an accused person. The learned Judges of Appeal (E.O. O’Kubasu, J.W. Onyango Otieno and W.S. Deverell JJA) held thus:-

“We have come to the conclusion, after a careful weighing of these two considerations in the light of the facts of the present case, that although the delay of three days in bringing the appellant to court 17 days after his arrest instead of within 14 days in accordance with section 72(3) of the Constitution did not give rise to any substantial prejudice to the appellant and although, on the evidence, we are satisfied that he was guilty as charged, we nevertheless do not consider that the failure by the prosecution to abide by the requirements of section 72(3) of the Constitution should be disregarded. Although the offence for which he was to be charged was a capital offence, no attempt was made by the Republic, upon whom the burden rested, to satisfy the court that the appellant had been brought before the court as soon as was reasonably practicable.”

  1. In the instant case, the offence was allegedly committed in 2017 and the case was opened in 2020 after the Appellant was arrested for a different offence. The delay in presenting the Appellant in court was not explained. It may also be argued that the said issue of the delay never came up before the trial court as the Appellant did not raise it thereby not requiring any explanation from the Prosecution. The Court of Appeal addressed this issue in Paul Mwangi Murungu vs. Republic, Criminal Appeal No. 35 of 2006 (unreported) thus:-

“We do not accept the proposition that the burden is upon an accused person to complain to a Magistrate or a Judge about the lawful detention in custody of the police. The prosecuting authorities themselves know the time and date when an accused was arrested.  They also know when the arrested person has been in custody for more than the twenty-four hours allowed in the case of ordinary offences and fourteen days in the case of capital offences.  Under section 72 (3) of the Constitution, the burden to explain the delay is on the prosecution, and we reject any proposition that the burden can only be discharged by the prosecution if the person accused raises a complaint.  But in case the prosecution does not offer any explanation then the court as the ultimate enforcer of the provisions of the constitution must raise the issue.”

  1. It is noteworthy that neither the Prosecution nor the trial court addressed the issue of failure to arraign the Appellant in court within the constitutional timelines. It is my finding that it behoved the Prosecution to bring the issue to the attention of the trial court and to furnish an explanation for the same in the interests of justice. I find that failure to address the delay means that the Appellant was not afforded a fair trial as enshrined in our Constitution. I reiterate the principles espoused in the Albanus case (supra) and hold that, this Court is a Constitutional court standing not only as a gatekeeper but also a guardian of the rule of law.  It must therefore unreservedly uphold the principles and dictates of the Constitution.
  2. Based on the foregoing, it is my finding that the Appellant was arraigned in court after a month in contravention of the provisions of Article 49 (1) (f) (i) and (ii) of the Constitution, which was both illegal and a violation of his right to a fair trial.
  3. Consequently, I find that the proceedings before the trial court were a nullity. It is my finding that in circumstances of this case, it would be pointless to belabour the issue of whether the offence of defilement was proved against the Appellant to the required standards. Based on my finding that the proceedings before the trial court were a nullity, I find that the instant appeal is merited and I therefore allow it by quashing the conviction and setting aside the sentence. I direct that the Appellant be set at liberty forthwith unless he is otherwise lawfully held.
  4. It is so ordered.

Judgment dated, signed and delivered at Nyamira virtually via Microsoft Teams this 3rd day of October 2024.


    DENNIS ONYANCHA NYAMONYO VS The Republic DENNIS ONYANCHA NYAMONYO VS The Republic