BACK GROUND
The Appellant was charged with offence of defilement contrary to Section 8 1 and 8 2 of Sexual Offences Act No 3 of 2006
The Particulars of the offence are that on 10th June 2019 and 13/6/2019, the accused, one, Francis Siene Onalo, at Naivas area in Ruaraka within Nairobi County intentionally and unlawfully caused his penis to penetrate the vagina of Z.A. a child aged 4 years old
The Alternative Charge is committing indecent act with a child contrary to Section 11 1 of Sexual Offences Act.
The particulars of the offence are that on 10th June 2019 and 13/6/2019, the accused, one, Francis Siene Onalo, at Naivas area in Ruaraka within Nairobi County intentionally and unlawfully touched the vagina of Z.A. a child aged 4 years old with your penis.
The charge sheet/Information was read to the Accused and he pleaded not guilty to both charge and alternative charge and was advised by the Trial court to write to Legal Aid Service Board for Legal Representation.
HEARING
The hearing commenced before Trial Court Hon. E.Rianny SRM on 18/7/2019 as follows;
PW1 Z.A underwent voir dire examination and gave Unsworn Statement that she was 4 years old and lived in Naivas and she had 1 sister Zulea and brother Karim. They lived in a Court and there were stairs inside the Court where the Accused lived, PW1 knew him and he lived near them. They were playing on the balcony when the Accused person carried PW1 on his shoulders to his house. He removed his clothes, his sweater and vest and ‘suruali’ and then panty; ‘ akanifanyia tabia mbaya ’ he kissed her in the bedroom ‘ kukiss mtu ni tabia mbaya’. He kissed her on the mouth and this was after closing the door. They slept. Francis is also known as Boo.He kissed her on the mouth and then ‘nikavua nguo’
The Trial Court, stood the child down as she was crying and the Prosecutor sought adjournment for PW1 to testify on another day when the child was more relaxed. Since the Complainant and family moved from the place, they lived, the Court approved bail/bond of the Accused person.
On 6/8/2019, PW1 was recalled and she testified that her mother is Hadija and her Teacher is Radona, they were living in Naivas but moved to another house. Her mother sold stockings in Town. PW1 stated Francis who hurt her is also called Boo. She was playing with her sister and he took her to his house. Initially, she refused but ‘ akanichukua kwa nguvu ’ to his bedroom and removed her clothes, her panty, sweater and trousers; ‘ akanifanyia tabia mbaya akatoa kitu yake ya kususu akaniwekea hapa penye nachuchu nayo akanifanyia tabia mbaya halafu ’ he took tissue and wiped her. He opened the door and told Zulea and her to get out. This was after, she dressed. Francis house had 2 beds not double decker; his sister sat on a chair.
When she left, she told her mom at night when they were going to sleep that Francis ‘ alinifanyia tabia mbaya ’. Her Mum said she would call Police in the morning which she did. She went to hospital ‘ nikapimwa susu’ (points to vagina) she felt pain ‘akinifanyia tabia mbaya’ she cried. She was also given drugs. She did not know the name of Francis’s Sister.
Prior to that she went to Francis house and played with him. In their sitting room he had a Computer and Francis taught her how to play computer games. Their house was down and Francis was upstairs and she would go to play at the balcony. Francis had pulled Zulea but she got hurt on her finger, it was pinched by the door. PW1 pointed to the Accused person -Francis.
In cross examination PW1 wrote her name down and stated Francis took her when she was playing at noon. That day she went to school and came home. Her Mom told her she would buy her a motorbike. She went to Francis’ house with Zulea where he did bad manners to her, Zulea was there and she screamed and when he finished, she put her clothes. When she left Mama Shadi was there as she cried. At home she told Karim, the Accused did bad manners to her and he told their mom that night. She said she would call Police the next day.Police came and asked her Francis house; she did. Later, Police asked her ‘ nani amenifanyia tabia mbaya ’ and she said it was Francis and he was arrested. She was taken to hospital and was examined her ‘susu’. She went to Police Station with her Mum; she spoke to Police and she came to the Police the next day and she told the Police things and the Officer wrote down. Her Mum washed her and her pant. They did not go to any other hospital. Karim her older brother and Francis knew each other and played ball with Francis. Francis did bad manners to her twice. At home when he took her by force when she was with Zulea was the 1 st time. She could not recall the 2 nd time. She used to go to Francis house and stay in the sitting room playing. The room has a chair and a computer and a bed. She was examined by a lady doctor. There is a paper she gave her Mom and the drugs she was given were small and white she took in the morning. Following day , she went to school.
PW2 Zipporah Karimi mother to PW1 testified that on 13/6/2019, her child Zaitun was bleeding on her private parts and was raptured. On asking her twice, she remained mum. She washed her she went to school another day she said Mum bado chuchu yangu inatoka damu she asked her what happened she remained mum. Just within the week on a Thursday they went to sleep and at midnight she said she was in pain. She woke up and washed her. As she bathed her and checked her vagina it was torn on the lower side. She kept mum. When she became hostile she said the boy Francis from upstairs called her but she refused, he pulled her and did bad manners. He put her on the mattress and then removed his chuchu (dick) and put it in hers
On Thursday again Francis came knocked the door and another child, Zulaya opened he asked for Zaitun. He took her on his shoulders to his house removed her pant and defiled her. She took her to Mathare Hospital where it was confirmed and then went to Ruaraka Police Station and reported the matter.
Francis, the Accused was arrested on a Saturday morning; the child was called she explained what happened. At the hospital she was given PEP. PW2 identified the Accused as Francis in Court. She did not know him, she used to go to work and she left children at home. The week the incident happened she did not have a house-help and the children remained alone. When they went to his house, there were 4 boys and PW1 identified the Accused person as defiler.
In cross examination PW2 stated the she sells clothes; and that day, she left the children alone in the house. They went to school and on coming back were alone in the house.PW2 said PW1 was defiled twice. She said what PW1 told her and Zulea is the one who opened the door for Francis. The incident took place in a span of 1 week. The child had been bleeding. The child woke her up to bathe and she said she was in pain. It is Zeitun and not Karim who told her what transpired. PW2 kept asked PW1 what happened she kept mum. When they went to Mathare hospital the child was tested. The MSF is in Mathare. The Ambulance was called while they were in Mathare and it took them to MSF.
When PW1 had tears the doctor that she would heal and gave her medicine for 1month. PW2 administered the drugs to PW1. The P3 Form was filled in Nairobi area. After the arrest, the Accused person’s family came home and talked to her husband but not to her. PW2 stated in her statement she referred to the Accused person as boy. The children used to play with the Accused and they called him boy. It is after the arrest that PW2 knew the Accused was called Francis. She said that she told the child that she would buy her a bicycle if she said the truth in Court since she was terrified. When, the Accused defiled her, he threatened to beat her if she told anyone. She went to Mama Lucy Hospital with the child.PW2 identified the Accused person both at his house and at the Police station.
PW3 Sadia Hassan Abdi from Mama Lucy Kibaki Hospital. On 4/11/2019 she saw Zeitun Ajock aged 4 years 6 months who reported to have been defiled by a neighbor well known to her. She initially went to Mathari MSF and came for P3 Form at Mama Lucy with her parent.1 st incident was 10/6/2019 & 2 nd was 13/6/2019 specific time was not known. She examined the genitalia which was normal but abrasion was on the vulva specifically Labia Majora. There was tear of the hymen at 7 o’clock abrasion of the urethra and discharge noted. The P3 Form showed she was put on medication and there was no physical injury. P3 Form -PMFI-1
In cross examination, PW3 stated the patient was examined at MSF Mathare and not at Mama Lucy and hence the reason for no out-patient number.PW3 explained that they examine patients but also the timing matters.PW3 did not examine the patient based on physical findings but she had no reason to doubt findings from MSF and she also confirmed with the patient. Since time lapsed even if she did physical examination the finding would not have been the same.
She filled what was in the PCR Form after interviewing the child. It was a month ago and the minor had no other infection. The P3 Form verifies if a person is injured or not. The patient was brought to her after a month. PW3 stated that if a minor of 41/2 years is defiled by an adult the findings are normally different depending on the level of penetration and that is why she talked of lacerations in the urethra. A child would walk but with difficulty but heal with time. If the injury is/was not grievous one would not be admitted.
On 28/1/2020, the matter proceeded before Hon E. Kimilu PM after the prosecution presented 3 witnesses. Section 200 CPC was applied. Mr. Molla for the Accused person sought that the matter/ hearing starts afresh, the [new] Court was to observe demeanor of the witnesses and he was the same Defense Counsel.
The Prosecution objected to the application of the matter starting de novo because the victim a child aged 41/2 years testified and was cross-examined. It took a lot of time to get evidence from the minor and minors get a memory lapse. The Investigation Officer was on transfer and only 2 witnesses were remaining. The Investigation Officer’s transfer would bring challenges in recalling the witnesses from his new station.
The Defense Counsel, Mr Molla stated that if the offence happened, the minor could not forget. They suspected that the minor was couched on her evidence. There would be no prejudice if witnesses were recalled. The Trial Court ruled that Defense Counsel was present during trial and cross-examined all witnesses who testified on all issues. There was no new issue(s)the Defense wished to raise in further cross-examination and as [confirmed] by the Court record. The Court appreciated that the Complainant was a minor who must have been traumatized by the alleged commission [of the offence]
The finding of the Trial Court was that the Defense did not advance persuasive grounds for a de novo hearing and the matter was to proceed from where it reached. The Court appreciated the victim is a minor who must have been traumatized by the alleged commission [of the offence] The Defense Counsel cross-examined the witnesses on all issues and there were no new issues the Defense wanted to raise in further cross-examination. Right of appeal of the Ruling was granted 14 days thereof.
PW4 CPL Christantus Ondieki from Ruaraka Police Station testified on 15/6/2019 at 9. 30am he accompanied colleague PC Irene Luseno and with PC driver CPL Muthamia and PC Asugo all went to Mathare-North behind Naivas Super market along Outer ring Road. PC Luseno called victim’s mother [PW2] for directions and on arrival she pointed to the door of Accused person’s house. The Complainant lived on 2 nd Floor and the Accused person the 3 rd Floor. He knocked the door and a young person opened who looked scared to see strangers, he tried to close the door but they entered the house. Inside was a mattress on the floor and in the inner room he found 3 young men and there were 2 beds. He woke all men up and they were 4 men. He was not able to identify the suspect and he sent for victim/minor PW1.She came and he asked her who among the 4 men defiled her and she promptly pointed to the accused person. He informed him why he was being arrested and escorted him to the vehicle and took him to Ruaraka Police Station. He recorded his statement. He identified the Accused person in Court as the one he arrested.
In cross examination by both Defense Counsel Mr Molla and then Mr Kimosop, the witness reiterated his examination in Chief, they went to Accused person’s house, directed by victim/minor’s mother PW2 and on entering the house which was within same building as victim’s home, found 4 men and the minor pointed to the Accused person and he arrested him. He further stated that they arrived at the house at 6 o’clock, inside the house, the outer room had a mattress on the floor Inner room had 2 rooms. The minor was brought by her mother. The victim spoke Swahili fluently, after Accused person was identified, he gave him his name. PC Asugo handcuffed the suspect. He was the Arresting officer. The victim was walking.
PW5 PCW Irene Wabukala, from Industrial Area Police formerly from Ruaraka Police Station. On 14/6/2019 while at the Gender desk at the Station, [PW2 and PW1], a female juvenile accompanied by her mother and came to report that a minor had been defiled by a person known to her who is also a neighbor. On 13/6/2019, she realized her daughter had a problem in her private parts. She told her the perpetrator had defiled her at his house. She took her to hospital. She took her statement and referred her to MSF and called MSF hotline and they were picked. The victim was issued with a PRC Form and she issued her with a P3 Form. She went to Dr Maundu but he could not fill the P3 Form. She went to Mama Lucy Kibaki Hospital for filling of P3 Form in the company of Defense Lawyer. The nurse told them that the P3 Form ought to be filled in by the Medical Officer who examined the victim. They went to MSF Hospital and after deliberations the P3 Form was filled in.
PW5 accompanied colleagues on 15/6/2019 at 6.30am to the Accused person’s house. With the help of Victim’s mother, they went to the suspect’s house and found 4 men. The Complainant was called and she positively identified the Accused person and they proceeded to the station. The suspect admitted he knew the victim but he denied committing the offence.
PW5 produced the ID Parade Form -Exhibit 2 that showed that the victim identified the Accused person among 8 suspects by touching him. The suspect changed positions and the victim identified him. The Complainant’s mother brought the Child Notification of Birth Card Exh 3 (a) and Immunization Card Exh 3 (b) The date of birth of the victim was 24/8/2014.
In cross examination, PW5 clarified that mother of the victim and victim reported on 14/8/2019.
She had taken the child to hospital in 13/8/2019. PW5 recorded the mother’s statement, the victim was taken to hospital before reporting. She advised them to seek treatment at MSF. They did not have documents. She called MSF hotline and directed them to Hospital. Initial treatment was at Mathare hospital. They were referred to MSF and I referred them as well for purposes of filing of PRC form. PW5 confirmed she was part of team during arrest of the suspect and was in the company of PC Ondieki, PC Asugo, and Police driver accompanied the mother of the victim directed them to suspect’s house. She called her on phone. In her Statement she indicated, they were shown the Accused door by the victim but were directed by the victim’s mother.
30.The Report had stamp but not dated. At the time of arrest, they knocked the door and they requested to see Francis. The victim’s mother had asked for the name of the suspect. The victim knew the suspect as ‘Boi’. The mother asked who ‘Boi’ was among the 4 men found in the house. They introduced themselves as Police Officer. She denied her Statement. The Accused admitted he knew the victim but denied the offence. The house had 2 rooms. The outer room had a mattress on the floor and inner room had 2 beds. The boys were asleep. The minor came in with her mother and positively identified the Accused person as her perpetrator. The minor was walking and asked her to identify suspect. PC Ondieki as well as asked victim to identify suspect among the four. She positively identified the Accused in his room.
31.At the Police Station, Identification parade was conducted on 16/2/2019. They had 8 members of the parade and they were in variance of physical structure and appearance. The Accused person had a jacket at first then later he removed the jacket. The victim identified the suspect in both rounds. The ID parade was on 16/6/2019 and the stamp on the form is on 8/7/2019 and the ID parade [Form & entry] was not forged.
32. The P3 Form was issued on15/6/2019 on the day of arrest and had the stamp of the station. She accompanied mother and daughter to Nairobi Area. P3 Form was filled in at Mama Lucy Hospital and it was after plea was taken.PW5 was not aware of any compensation by victim’s mother, she took the witness and did her investigations.
33.PW5 did not know the victim prior to the case. On 15/6/2019, they were led by victim’s mother to the Accused’s house. The victim and elder brother woke up. Karim followed them upstairs, they entered the house with Ondieki; PC Asugo and victim mother were at the door together with Karim. The victim came walking PC Asuga handcuffed the Accused.
33. PW6 Salano Barbara Kere, Clinical Officer with MSF San Frontier, with Gender Based Recovery Centre in Mathare. The victim’s mother had medical certificate & PRC of Zeituni Ajob. Her date of birth was/is 24/8/2014. She was seen on 14/06/2019 in the company of her mother at around 11am and presented history of being sexually violated on 13/6/2019 at unspecified place in Mathare North by one known person. ‘ ’Nikakataa akanivuruta akanipeleka kwao na kunifanyia tabia mbaya.Aliigiza kitu yake ya kukojoa hapa (pointing at her genital) Vile alimaliza alinipaguza na tissue na kuniambia nisiambie mum’’
34.At the time of examination, she appeared calm, all her vital signs were normal and on physical examination she was normal. On genital examination, there were vulva abrasions on labia majora bilaterally with a tear posterior porche. The vagina had a creamish mucal discharge and urethral abrasions. The hymen was reddened with a minor notch at 7 o’clock position. Anal exam was normal.
35.Laboratory tests were done. She was put on treatment for prevention of HIV, PEP Antibiotic cover for prevention of sexual transmitted infections and she was advised to continue with Counselling and PW6 produced the Medical Certificate as PExh 4 & PRC Form as PExh 5 . She prepared and signed the document on 14/6/2019. Additional Information on the PRC, the victim did not remove clothes as she had taken a bath. There was no presence of spermatozoa seen on vuval swab.
36.In cross examination, Defense Counsel produced in Court a Notice of alibi defense and the Trial Court ordered the same be filed formally in Court.
37.PW6 stated the victim presented physical signs and emotional reactions compatible with violence. This was consistent with victims of assault especially when they do not understand the extent of violence and degree of penetration. The patient was traumatized she said she was assaulted on 13/6/2019.
38.PW6 relied on mother’s history, survivor’s testimony and physical exam and concluded that she was sexually assaulted.PW6 confirmed to be a registered Clinical Officer with Clinical Officers Council of Kenya.The genital injury depended on the degree of force and there were abrasions on labia majora PW6 confirmed se worked for 10 years and she had interacted with victims below the age of 5 years. repeated the injuries observed as recorded in the medical documents and stated in the in examination in chief. The baby stated the perpetrator wiped her vagina with tissue after violation. The absence of spermatozoa did not rule out sexual violation.
39.PW6 stated the penetration might have been partial as per injuries in this case were not caused by a finger. An object inserted in a vagina can cause injuries whether penis, object or finger can cause injury. She had never heard a mother hurt a child vagina while taking a bath. She advised Counselling and she did not do follow-up to confirm whether they went back. She did not know the victim and/or her mother prior.
40.PW7, Emily Okworo, Government Analyst from Government Chemist and holds Master’s degree in Chemistry from U.O.N. On 15/7/2019 acted on request by P.C. Irene Mukali of Ruaraka Police Station received vaginal swab in khaki envelope marked -H; belonging to the Complainant Zeitun, a luminous green under pant, yellow flowered patch in khaki envelope labelled – marked Z.A. On 15/7/2019 at the Lab of Government Chemist, another swab was obtained from Francis Onalo who is the Accused. These were the findings On examination, the vaginal swab had neither semen nor blood stains. She produced Report - PExh 6 (a) & Memo PExh 6(b).
41.In cross examination, PW7 confirmed there was no semen stains noted from the samples availed and could not state there was no defilement as she dealt only with items submitted for analysis.
42.The Defense Counsel applied that the Trial Court recuse itself from hearing the matter. The Trial Court ordered Formal application to be filed within 7 days. The Prosecutor left the Trial Court to give ruling. The Ruling was delivered on 19/5/2022. The Trial Court did not recuse itself.
43.The Defense Counsel applied for recall of PW6 under Section 146 and 150 of Evidence Act and cited case-law to aid the grant of the application for recall of witness. The application to recall witness PW6 was granted.
44. PW6 Barbara Kere, Clinical Officer with MSF San Frontier, Mathare EastLeigh who was recalled and asked if an object/finger can cause the injuries in the P3 Form and she answered in the affirmative yes it can but…. PW6 was also asked; if a mother is washing a girl and the finger goes in if it can cause the same injuries and PW6 indicated that an object or finger with manner of force can cause said injuries not necessarily from a mother.
The Trial Court found prima facie case and the Accused person was placed on his Defense.
DEFENSE CASE
45. The Accused person Francis Onalo Siele testified and made sworn statement and he produced Student ID KCA University; Defense Exh -1 . He lived with his brother Japheth Tabo, Kelvin Mwaniki & Anthony Otiato. On 10/6/2019 a Monday he had 2-3-hour classes that morning. He left home for university at 7am with Anthony Otiato; the 1st class was from 9am-11am; the 2 nd Class was from 2 pm and he produced Signed Sheets to confirm Class attendance as Defense Exhibit 2 a and 2 b and his name No 7 in the Sheets. After class he went for lunch upto 2.30 pm and joined Christian Community and after Bible Study went home 6.30-7pm.Anthony and Wabwire walked home he stayed to type songs for choir practice and he got home at 9.30 pm.
46.On 17/6/2019 he was arraigned in Court and 24/6/2019 he was in custody. On 13/6/2019 he had 1 class from 8 am and left home with Anthony at 7am at 11am he went to work in Constance Mwenesi’s shop at Allsops Outer ring and closed at 9.30pm walked home. He denied commission of the offence and stated they fixed him. He did not know the child or the mother.
In cross-examination by Prosecution, he reiterated facts as stated in examination in chief. He was a student at KCA University admitted Sept 2018 He had no letter of admission but he presented Student Card He studied Procurement & Logistics and confirmed the 2 class sheets. The sign Sheet was not on letterhead of KCA but it was written University. The Sign Sheets were of different classes He was No 8 on the sheet of 17/6/2019 but he did not sign he was arrested but the Sign Sheet shows different units and different Lecturers.
47.DW2 Erick Otieno an employee at KCA University Assistant Registrar and produced Staff Card DMFI -2 a , signed Sheet of Class Attendance that was system generated with KCA logo with format for details and signature of the student to confirm attendance. The Sign Sheet for Attendance is generated through ERP and it was issued on 13/5/2019 and belongs to KCA University. The accused person was/is No 7 Francis Omolo Siene.
48.In cross examination he confirmed, he was authorized to testify in Court and signed Class Attendance sheet emanated from the KCA University and was filled by students in Class with Lecturer. He checked the Sign Sheet as of 2019 and could not trace it. He produced what he was asked to produce under the Notice to Produce.DW2 stated that he was not in the class.
49.DW3 Anthony Otiato, cousin to the Accused person and they lived together from 2018-2022. In 2019 he was in KCA university and produced Student ID DExh 4 . On 10/6/2019, he woke up 6.30 am prepared and went with the Accused person to the University. They attended morning Prayers at & am and parted to their respective classes. Each had 2 classes; 8 am- 11am and 11am-2pm. At 11am the Accused person came to his class and they went home. After lunch they left home and went to prayers, ‘jumuiya’ cell groups at School. From 4pm and finished at 7 pm. He left with Francis & Wabwire and got home at 8 pm. Bernard and Francis copied songs and he prepared supper and Bernard left at 10 pm. Francis never left the house.
50.On 13/6/2019, the accused had 1 class after going for morning devotion. After class, he came and DW3 gave him keys and went home. His classes ended at 1-2 pm and he remained for choir practice. He called Francis (Accused) who said he was at Connie’s where he assisted, he went home left Francis there who came later at 8 pm. The charges are not true.
51.In cross-examination, DW3 admitted that he took Business Management & Bachelor of Commerce while Francis (accused person) studied Procurement & Logistics and he would not know whether he was in class or not.
52.DW4 Bernard Wabwire HR Associate but in 2019 he was a student at KCA and produced student card DExh 5 . On 10/6/2019 as Chairperson KCA Catholic Association he conducted ‘jumuiya’ meetings from 4.30 pm -6.30 pm he accompanied Francis & Anthony to their house at 6.30 pm for Bible Study. They went to Francis home as he had a computer and they wanted to print songs for prayers. He knew Francis since 2018 and as a member of the Association. He did not know what he was in Court for until he came to Court. The evening of 10/6/2019 I left Francis and Anthony in the house.
53.In cross examination he admitted that he did not have the ‘Jumuiya’ Meeting Program, the same was available at the University. He had since graduated. He confirmed there were hours he was not with Francis.
54.The Defense hearing was closed under Protest after the Defense took over a year to avail All witnesses.
55.On 6/6/2022, the Trial court delivered judgment and found the Accused person guilty of the offence of defilement as charged and later sentenced him to 30 years imprisonment.
PETITION OF APPEAL
The Petition of Appeal was filed on 21/12/2023 raised 22 grounds condensed as follows;
BREACH OF APPELLANT’S RIGHT TO FAIR TRIAL
56.The Trial Court denied Appellant Constitutional and unalienable right of Fair Trial under Article 25 and 50 2 CoK 2010 denying adequate time and facilities to prepare his Defense and the right to adduce and challenge evidence and denying the Appellant an opportunity to call 2 more witnesses one being an expert witness. The Prosecution was granted several adjournments to avail its witnesses while the Defense was denied a single adjournment to avail witnesses. This was discriminatory and contrary to Article 27 of CoK 2010
TRIAL COURT HAD ACTUAL & APPARENT BIAS
57.The Trial Court demonstrated through out the Trial actual and apparent bias against the Appellant person rendering the entirety of the fair trial unfair and moved from the seat of an impartial and independent umpire and getting into arena of an active adverse party by;
Implying facts in the judgment that were never raised by Prosecution
Making substantive application and determination within the judgment on certificate of electronic evidence when the Prosecution waived such right by conceding admission of the evidence;
Selectively recording evidence presented leaving out important facts favorable to the Accused person
Appellant’s breach of bail and bond terms during Corvid and was locked up in a warrant of arrest despite confusion due to Chief Justice directions.
58.The Trial Court’s Ruling of 16/6/2023 imputing Accused person’s Counsel’s conduct as improper and unprofessional claiming it is the advocate who advised the client to ask the Court to recuse itself from the matter and the Trial court refused to recuse herself perpetuating bias through-out trial and breaching the Appellant’s right to fair trial.
The Trial Court found the Prosecution ought to be given notice evidenced by notice to the prosecution is a breach of accused person Constitutional right.
BURDEN & STANDARD OF PROOF
59.The burden of Proof was shifted to the Defense. The Trial Court struck off Defense Exhibit 2 a and b as exhibits even though a consent was entered for production of exhibits. The Trial Court ignored the weighty conduct of PW1 & PW2 who failed and deliberately refused to avail PW1 for examination despite the Court having issued an order for examination of the minor at Mama Lucy Kibaki Hospital. The Trial Court failed to consider/find contradiction and inconsistencies within testimonies of Prosecution witnesses contrary to the charges and evidence on record. The Trial Court did not consider the c
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The Appellant was charged with offence of defilement contrary to Section 8 1 and 8 2 of Sexual Offences Act No 3 of 2006
The Particulars of the offence are that on 10th June 2019 and 13/6/2019, the accused, one, Francis Siene Onalo, at Naivas area in Ruaraka within Nairobi County intentionally and unlawfully caused his penis to penetrate the vagina of Z.A. a child aged 4 years old
The Alternative Charge is committing indecent act with a child contrary to Section 11 1 of Sexual Offences Act.
The particulars of the offence are that on 10th June 2019 and 13/6/2019, the accused, one, Francis Siene Onalo, at Naivas area in Ruaraka within Nairobi County intentionally and unlawfully touched the vagina of Z.A. a child aged 4 years old with your penis.
The charge sheet/Information was read to the Accused and he pleaded not guilty to both charge and alternative charge and was advised by the Trial court to write to Legal Aid Service Board for Legal Representation.
HEARING
The hearing commenced before Trial Court Hon. E.Rianny SRM on 18/7/2019 as follows;
PW1 Z.A underwent voir dire examination and gave Unsworn Statement that she was 4 years old and lived in Naivas and she had 1 sister Zulea and brother Karim. They lived in a Court and there were stairs inside the Court where the Accused lived, PW1 knew him and he lived near them. They were playing on the balcony when the Accused person carried PW1 on his shoulders to his house. He removed his clothes, his sweater and vest and ‘suruali’ and then panty; ‘ akanifanyia tabia mbaya ’ he kissed her in the bedroom ‘ kukiss mtu ni tabia mbaya’. He kissed her on the mouth and this was after closing the door. They slept. Francis is also known as Boo.He kissed her on the mouth and then ‘nikavua nguo’
The Trial Court, stood the child down as she was crying and the Prosecutor sought adjournment for PW1 to testify on another day when the child was more relaxed. Since the Complainant and family moved from the place, they lived, the Court approved bail/bond of the Accused person.
On 6/8/2019, PW1 was recalled and she testified that her mother is Hadija and her Teacher is Radona, they were living in Naivas but moved to another house. Her mother sold stockings in Town. PW1 stated Francis who hurt her is also called Boo. She was playing with her sister and he took her to his house. Initially, she refused but ‘ akanichukua kwa nguvu ’ to his bedroom and removed her clothes, her panty, sweater and trousers; ‘ akanifanyia tabia mbaya akatoa kitu yake ya kususu akaniwekea hapa penye nachuchu nayo akanifanyia tabia mbaya halafu ’ he took tissue and wiped her. He opened the door and told Zulea and her to get out. This was after, she dressed. Francis house had 2 beds not double decker; his sister sat on a chair.
When she left, she told her mom at night when they were going to sleep that Francis ‘ alinifanyia tabia mbaya ’. Her Mum said she would call Police in the morning which she did. She went to hospital ‘ nikapimwa susu’ (points to vagina) she felt pain ‘akinifanyia tabia mbaya’ she cried. She was also given drugs. She did not know the name of Francis’s Sister.
Prior to that she went to Francis house and played with him. In their sitting room he had a Computer and Francis taught her how to play computer games. Their house was down and Francis was upstairs and she would go to play at the balcony. Francis had pulled Zulea but she got hurt on her finger, it was pinched by the door. PW1 pointed to the Accused person -Francis.
In cross examination PW1 wrote her name down and stated Francis took her when she was playing at noon. That day she went to school and came home. Her Mom told her she would buy her a motorbike. She went to Francis’ house with Zulea where he did bad manners to her, Zulea was there and she screamed and when he finished, she put her clothes. When she left Mama Shadi was there as she cried. At home she told Karim, the Accused did bad manners to her and he told their mom that night. She said she would call Police the next day.Police came and asked her Francis house; she did. Later, Police asked her ‘ nani amenifanyia tabia mbaya ’ and she said it was Francis and he was arrested. She was taken to hospital and was examined her ‘susu’. She went to Police Station with her Mum; she spoke to Police and she came to the Police the next day and she told the Police things and the Officer wrote down. Her Mum washed her and her pant. They did not go to any other hospital. Karim her older brother and Francis knew each other and played ball with Francis. Francis did bad manners to her twice. At home when he took her by force when she was with Zulea was the 1 st time. She could not recall the 2 nd time. She used to go to Francis house and stay in the sitting room playing. The room has a chair and a computer and a bed. She was examined by a lady doctor. There is a paper she gave her Mom and the drugs she was given were small and white she took in the morning. Following day , she went to school.
PW2 Zipporah Karimi mother to PW1 testified that on 13/6/2019, her child Zaitun was bleeding on her private parts and was raptured. On asking her twice, she remained mum. She washed her she went to school another day she said Mum bado chuchu yangu inatoka damu she asked her what happened she remained mum. Just within the week on a Thursday they went to sleep and at midnight she said she was in pain. She woke up and washed her. As she bathed her and checked her vagina it was torn on the lower side. She kept mum. When she became hostile she said the boy Francis from upstairs called her but she refused, he pulled her and did bad manners. He put her on the mattress and then removed his chuchu (dick) and put it in hers
On Thursday again Francis came knocked the door and another child, Zulaya opened he asked for Zaitun. He took her on his shoulders to his house removed her pant and defiled her. She took her to Mathare Hospital where it was confirmed and then went to Ruaraka Police Station and reported the matter.
Francis, the Accused was arrested on a Saturday morning; the child was called she explained what happened. At the hospital she was given PEP. PW2 identified the Accused as Francis in Court. She did not know him, she used to go to work and she left children at home. The week the incident happened she did not have a house-help and the children remained alone. When they went to his house, there were 4 boys and PW1 identified the Accused person as defiler.
In cross examination PW2 stated the she sells clothes; and that day, she left the children alone in the house. They went to school and on coming back were alone in the house.PW2 said PW1 was defiled twice. She said what PW1 told her and Zulea is the one who opened the door for Francis. The incident took place in a span of 1 week. The child had been bleeding. The child woke her up to bathe and she said she was in pain. It is Zeitun and not Karim who told her what transpired. PW2 kept asked PW1 what happened she kept mum. When they went to Mathare hospital the child was tested. The MSF is in Mathare. The Ambulance was called while they were in Mathare and it took them to MSF.
When PW1 had tears the doctor that she would heal and gave her medicine for 1month. PW2 administered the drugs to PW1. The P3 Form was filled in Nairobi area. After the arrest, the Accused person’s family came home and talked to her husband but not to her. PW2 stated in her statement she referred to the Accused person as boy. The children used to play with the Accused and they called him boy. It is after the arrest that PW2 knew the Accused was called Francis. She said that she told the child that she would buy her a bicycle if she said the truth in Court since she was terrified. When, the Accused defiled her, he threatened to beat her if she told anyone. She went to Mama Lucy Hospital with the child.PW2 identified the Accused person both at his house and at the Police station.
PW3 Sadia Hassan Abdi from Mama Lucy Kibaki Hospital. On 4/11/2019 she saw Zeitun Ajock aged 4 years 6 months who reported to have been defiled by a neighbor well known to her. She initially went to Mathari MSF and came for P3 Form at Mama Lucy with her parent.1 st incident was 10/6/2019 & 2 nd was 13/6/2019 specific time was not known. She examined the genitalia which was normal but abrasion was on the vulva specifically Labia Majora. There was tear of the hymen at 7 o’clock abrasion of the urethra and discharge noted. The P3 Form showed she was put on medication and there was no physical injury. P3 Form -PMFI-1
In cross examination, PW3 stated the patient was examined at MSF Mathare and not at Mama Lucy and hence the reason for no out-patient number.PW3 explained that they examine patients but also the timing matters.PW3 did not examine the patient based on physical findings but she had no reason to doubt findings from MSF and she also confirmed with the patient. Since time lapsed even if she did physical examination the finding would not have been the same.
She filled what was in the PCR Form after interviewing the child. It was a month ago and the minor had no other infection. The P3 Form verifies if a person is injured or not. The patient was brought to her after a month. PW3 stated that if a minor of 41/2 years is defiled by an adult the findings are normally different depending on the level of penetration and that is why she talked of lacerations in the urethra. A child would walk but with difficulty but heal with time. If the injury is/was not grievous one would not be admitted.
On 28/1/2020, the matter proceeded before Hon E. Kimilu PM after the prosecution presented 3 witnesses. Section 200 CPC was applied. Mr. Molla for the Accused person sought that the matter/ hearing starts afresh, the [new] Court was to observe demeanor of the witnesses and he was the same Defense Counsel.
The Prosecution objected to the application of the matter starting de novo because the victim a child aged 41/2 years testified and was cross-examined. It took a lot of time to get evidence from the minor and minors get a memory lapse. The Investigation Officer was on transfer and only 2 witnesses were remaining. The Investigation Officer’s transfer would bring challenges in recalling the witnesses from his new station.
The Defense Counsel, Mr Molla stated that if the offence happened, the minor could not forget. They suspected that the minor was couched on her evidence. There would be no prejudice if witnesses were recalled. The Trial Court ruled that Defense Counsel was present during trial and cross-examined all witnesses who testified on all issues. There was no new issue(s)the Defense wished to raise in further cross-examination and as [confirmed] by the Court record. The Court appreciated that the Complainant was a minor who must have been traumatized by the alleged commission [of the offence]
The finding of the Trial Court was that the Defense did not advance persuasive grounds for a de novo hearing and the matter was to proceed from where it reached. The Court appreciated the victim is a minor who must have been traumatized by the alleged commission [of the offence] The Defense Counsel cross-examined the witnesses on all issues and there were no new issues the Defense wanted to raise in further cross-examination. Right of appeal of the Ruling was granted 14 days thereof.
PW4 CPL Christantus Ondieki from Ruaraka Police Station testified on 15/6/2019 at 9. 30am he accompanied colleague PC Irene Luseno and with PC driver CPL Muthamia and PC Asugo all went to Mathare-North behind Naivas Super market along Outer ring Road. PC Luseno called victim’s mother [PW2] for directions and on arrival she pointed to the door of Accused person’s house. The Complainant lived on 2 nd Floor and the Accused person the 3 rd Floor. He knocked the door and a young person opened who looked scared to see strangers, he tried to close the door but they entered the house. Inside was a mattress on the floor and in the inner room he found 3 young men and there were 2 beds. He woke all men up and they were 4 men. He was not able to identify the suspect and he sent for victim/minor PW1.She came and he asked her who among the 4 men defiled her and she promptly pointed to the accused person. He informed him why he was being arrested and escorted him to the vehicle and took him to Ruaraka Police Station. He recorded his statement. He identified the Accused person in Court as the one he arrested.
In cross examination by both Defense Counsel Mr Molla and then Mr Kimosop, the witness reiterated his examination in Chief, they went to Accused person’s house, directed by victim/minor’s mother PW2 and on entering the house which was within same building as victim’s home, found 4 men and the minor pointed to the Accused person and he arrested him. He further stated that they arrived at the house at 6 o’clock, inside the house, the outer room had a mattress on the floor Inner room had 2 rooms. The minor was brought by her mother. The victim spoke Swahili fluently, after Accused person was identified, he gave him his name. PC Asugo handcuffed the suspect. He was the Arresting officer. The victim was walking.
PW5 PCW Irene Wabukala, from Industrial Area Police formerly from Ruaraka Police Station. On 14/6/2019 while at the Gender desk at the Station, [PW2 and PW1], a female juvenile accompanied by her mother and came to report that a minor had been defiled by a person known to her who is also a neighbor. On 13/6/2019, she realized her daughter had a problem in her private parts. She told her the perpetrator had defiled her at his house. She took her to hospital. She took her statement and referred her to MSF and called MSF hotline and they were picked. The victim was issued with a PRC Form and she issued her with a P3 Form. She went to Dr Maundu but he could not fill the P3 Form. She went to Mama Lucy Kibaki Hospital for filling of P3 Form in the company of Defense Lawyer. The nurse told them that the P3 Form ought to be filled in by the Medical Officer who examined the victim. They went to MSF Hospital and after deliberations the P3 Form was filled in.
PW5 accompanied colleagues on 15/6/2019 at 6.30am to the Accused person’s house. With the help of Victim’s mother, they went to the suspect’s house and found 4 men. The Complainant was called and she positively identified the Accused person and they proceeded to the station. The suspect admitted he knew the victim but he denied committing the offence.
PW5 produced the ID Parade Form -Exhibit 2 that showed that the victim identified the Accused person among 8 suspects by touching him. The suspect changed positions and the victim identified him. The Complainant’s mother brought the Child Notification of Birth Card Exh 3 (a) and Immunization Card Exh 3 (b) The date of birth of the victim was 24/8/2014.
In cross examination, PW5 clarified that mother of the victim and victim reported on 14/8/2019.
She had taken the child to hospital in 13/8/2019. PW5 recorded the mother’s statement, the victim was taken to hospital before reporting. She advised them to seek treatment at MSF. They did not have documents. She called MSF hotline and directed them to Hospital. Initial treatment was at Mathare hospital. They were referred to MSF and I referred them as well for purposes of filing of PRC form. PW5 confirmed she was part of team during arrest of the suspect and was in the company of PC Ondieki, PC Asugo, and Police driver accompanied the mother of the victim directed them to suspect’s house. She called her on phone. In her Statement she indicated, they were shown the Accused door by the victim but were directed by the victim’s mother.
30.The Report had stamp but not dated. At the time of arrest, they knocked the door and they requested to see Francis. The victim’s mother had asked for the name of the suspect. The victim knew the suspect as ‘Boi’. The mother asked who ‘Boi’ was among the 4 men found in the house. They introduced themselves as Police Officer. She denied her Statement. The Accused admitted he knew the victim but denied the offence. The house had 2 rooms. The outer room had a mattress on the floor and inner room had 2 beds. The boys were asleep. The minor came in with her mother and positively identified the Accused person as her perpetrator. The minor was walking and asked her to identify suspect. PC Ondieki as well as asked victim to identify suspect among the four. She positively identified the Accused in his room.
31.At the Police Station, Identification parade was conducted on 16/2/2019. They had 8 members of the parade and they were in variance of physical structure and appearance. The Accused person had a jacket at first then later he removed the jacket. The victim identified the suspect in both rounds. The ID parade was on 16/6/2019 and the stamp on the form is on 8/7/2019 and the ID parade [Form & entry] was not forged.
32. The P3 Form was issued on15/6/2019 on the day of arrest and had the stamp of the station. She accompanied mother and daughter to Nairobi Area. P3 Form was filled in at Mama Lucy Hospital and it was after plea was taken.PW5 was not aware of any compensation by victim’s mother, she took the witness and did her investigations.
33.PW5 did not know the victim prior to the case. On 15/6/2019, they were led by victim’s mother to the Accused’s house. The victim and elder brother woke up. Karim followed them upstairs, they entered the house with Ondieki; PC Asugo and victim mother were at the door together with Karim. The victim came walking PC Asuga handcuffed the Accused.
33. PW6 Salano Barbara Kere, Clinical Officer with MSF San Frontier, with Gender Based Recovery Centre in Mathare. The victim’s mother had medical certificate & PRC of Zeituni Ajob. Her date of birth was/is 24/8/2014. She was seen on 14/06/2019 in the company of her mother at around 11am and presented history of being sexually violated on 13/6/2019 at unspecified place in Mathare North by one known person. ‘ ’Nikakataa akanivuruta akanipeleka kwao na kunifanyia tabia mbaya.Aliigiza kitu yake ya kukojoa hapa (pointing at her genital) Vile alimaliza alinipaguza na tissue na kuniambia nisiambie mum’’
34.At the time of examination, she appeared calm, all her vital signs were normal and on physical examination she was normal. On genital examination, there were vulva abrasions on labia majora bilaterally with a tear posterior porche. The vagina had a creamish mucal discharge and urethral abrasions. The hymen was reddened with a minor notch at 7 o’clock position. Anal exam was normal.
35.Laboratory tests were done. She was put on treatment for prevention of HIV, PEP Antibiotic cover for prevention of sexual transmitted infections and she was advised to continue with Counselling and PW6 produced the Medical Certificate as PExh 4 & PRC Form as PExh 5 . She prepared and signed the document on 14/6/2019. Additional Information on the PRC, the victim did not remove clothes as she had taken a bath. There was no presence of spermatozoa seen on vuval swab.
36.In cross examination, Defense Counsel produced in Court a Notice of alibi defense and the Trial Court ordered the same be filed formally in Court.
37.PW6 stated the victim presented physical signs and emotional reactions compatible with violence. This was consistent with victims of assault especially when they do not understand the extent of violence and degree of penetration. The patient was traumatized she said she was assaulted on 13/6/2019.
38.PW6 relied on mother’s history, survivor’s testimony and physical exam and concluded that she was sexually assaulted.PW6 confirmed to be a registered Clinical Officer with Clinical Officers Council of Kenya.The genital injury depended on the degree of force and there were abrasions on labia majora PW6 confirmed se worked for 10 years and she had interacted with victims below the age of 5 years. repeated the injuries observed as recorded in the medical documents and stated in the in examination in chief. The baby stated the perpetrator wiped her vagina with tissue after violation. The absence of spermatozoa did not rule out sexual violation.
39.PW6 stated the penetration might have been partial as per injuries in this case were not caused by a finger. An object inserted in a vagina can cause injuries whether penis, object or finger can cause injury. She had never heard a mother hurt a child vagina while taking a bath. She advised Counselling and she did not do follow-up to confirm whether they went back. She did not know the victim and/or her mother prior.
40.PW7, Emily Okworo, Government Analyst from Government Chemist and holds Master’s degree in Chemistry from U.O.N. On 15/7/2019 acted on request by P.C. Irene Mukali of Ruaraka Police Station received vaginal swab in khaki envelope marked -H; belonging to the Complainant Zeitun, a luminous green under pant, yellow flowered patch in khaki envelope labelled – marked Z.A. On 15/7/2019 at the Lab of Government Chemist, another swab was obtained from Francis Onalo who is the Accused. These were the findings On examination, the vaginal swab had neither semen nor blood stains. She produced Report - PExh 6 (a) & Memo PExh 6(b).
41.In cross examination, PW7 confirmed there was no semen stains noted from the samples availed and could not state there was no defilement as she dealt only with items submitted for analysis.
42.The Defense Counsel applied that the Trial Court recuse itself from hearing the matter. The Trial Court ordered Formal application to be filed within 7 days. The Prosecutor left the Trial Court to give ruling. The Ruling was delivered on 19/5/2022. The Trial Court did not recuse itself.
43.The Defense Counsel applied for recall of PW6 under Section 146 and 150 of Evidence Act and cited case-law to aid the grant of the application for recall of witness. The application to recall witness PW6 was granted.
44. PW6 Barbara Kere, Clinical Officer with MSF San Frontier, Mathare EastLeigh who was recalled and asked if an object/finger can cause the injuries in the P3 Form and she answered in the affirmative yes it can but…. PW6 was also asked; if a mother is washing a girl and the finger goes in if it can cause the same injuries and PW6 indicated that an object or finger with manner of force can cause said injuries not necessarily from a mother.
The Trial Court found prima facie case and the Accused person was placed on his Defense.
DEFENSE CASE
45. The Accused person Francis Onalo Siele testified and made sworn statement and he produced Student ID KCA University; Defense Exh -1 . He lived with his brother Japheth Tabo, Kelvin Mwaniki & Anthony Otiato. On 10/6/2019 a Monday he had 2-3-hour classes that morning. He left home for university at 7am with Anthony Otiato; the 1st class was from 9am-11am; the 2 nd Class was from 2 pm and he produced Signed Sheets to confirm Class attendance as Defense Exhibit 2 a and 2 b and his name No 7 in the Sheets. After class he went for lunch upto 2.30 pm and joined Christian Community and after Bible Study went home 6.30-7pm.Anthony and Wabwire walked home he stayed to type songs for choir practice and he got home at 9.30 pm.
46.On 17/6/2019 he was arraigned in Court and 24/6/2019 he was in custody. On 13/6/2019 he had 1 class from 8 am and left home with Anthony at 7am at 11am he went to work in Constance Mwenesi’s shop at Allsops Outer ring and closed at 9.30pm walked home. He denied commission of the offence and stated they fixed him. He did not know the child or the mother.
In cross-examination by Prosecution, he reiterated facts as stated in examination in chief. He was a student at KCA University admitted Sept 2018 He had no letter of admission but he presented Student Card He studied Procurement & Logistics and confirmed the 2 class sheets. The sign Sheet was not on letterhead of KCA but it was written University. The Sign Sheets were of different classes He was No 8 on the sheet of 17/6/2019 but he did not sign he was arrested but the Sign Sheet shows different units and different Lecturers.
47.DW2 Erick Otieno an employee at KCA University Assistant Registrar and produced Staff Card DMFI -2 a , signed Sheet of Class Attendance that was system generated with KCA logo with format for details and signature of the student to confirm attendance. The Sign Sheet for Attendance is generated through ERP and it was issued on 13/5/2019 and belongs to KCA University. The accused person was/is No 7 Francis Omolo Siene.
48.In cross examination he confirmed, he was authorized to testify in Court and signed Class Attendance sheet emanated from the KCA University and was filled by students in Class with Lecturer. He checked the Sign Sheet as of 2019 and could not trace it. He produced what he was asked to produce under the Notice to Produce.DW2 stated that he was not in the class.
49.DW3 Anthony Otiato, cousin to the Accused person and they lived together from 2018-2022. In 2019 he was in KCA university and produced Student ID DExh 4 . On 10/6/2019, he woke up 6.30 am prepared and went with the Accused person to the University. They attended morning Prayers at & am and parted to their respective classes. Each had 2 classes; 8 am- 11am and 11am-2pm. At 11am the Accused person came to his class and they went home. After lunch they left home and went to prayers, ‘jumuiya’ cell groups at School. From 4pm and finished at 7 pm. He left with Francis & Wabwire and got home at 8 pm. Bernard and Francis copied songs and he prepared supper and Bernard left at 10 pm. Francis never left the house.
50.On 13/6/2019, the accused had 1 class after going for morning devotion. After class, he came and DW3 gave him keys and went home. His classes ended at 1-2 pm and he remained for choir practice. He called Francis (Accused) who said he was at Connie’s where he assisted, he went home left Francis there who came later at 8 pm. The charges are not true.
51.In cross-examination, DW3 admitted that he took Business Management & Bachelor of Commerce while Francis (accused person) studied Procurement & Logistics and he would not know whether he was in class or not.
52.DW4 Bernard Wabwire HR Associate but in 2019 he was a student at KCA and produced student card DExh 5 . On 10/6/2019 as Chairperson KCA Catholic Association he conducted ‘jumuiya’ meetings from 4.30 pm -6.30 pm he accompanied Francis & Anthony to their house at 6.30 pm for Bible Study. They went to Francis home as he had a computer and they wanted to print songs for prayers. He knew Francis since 2018 and as a member of the Association. He did not know what he was in Court for until he came to Court. The evening of 10/6/2019 I left Francis and Anthony in the house.
53.In cross examination he admitted that he did not have the ‘Jumuiya’ Meeting Program, the same was available at the University. He had since graduated. He confirmed there were hours he was not with Francis.
54.The Defense hearing was closed under Protest after the Defense took over a year to avail All witnesses.
55.On 6/6/2022, the Trial court delivered judgment and found the Accused person guilty of the offence of defilement as charged and later sentenced him to 30 years imprisonment.
PETITION OF APPEAL
The Petition of Appeal was filed on 21/12/2023 raised 22 grounds condensed as follows;
BREACH OF APPELLANT’S RIGHT TO FAIR TRIAL
56.The Trial Court denied Appellant Constitutional and unalienable right of Fair Trial under Article 25 and 50 2 CoK 2010 denying adequate time and facilities to prepare his Defense and the right to adduce and challenge evidence and denying the Appellant an opportunity to call 2 more witnesses one being an expert witness. The Prosecution was granted several adjournments to avail its witnesses while the Defense was denied a single adjournment to avail witnesses. This was discriminatory and contrary to Article 27 of CoK 2010
TRIAL COURT HAD ACTUAL & APPARENT BIAS
57.The Trial Court demonstrated through out the Trial actual and apparent bias against the Appellant person rendering the entirety of the fair trial unfair and moved from the seat of an impartial and independent umpire and getting into arena of an active adverse party by;
Implying facts in the judgment that were never raised by Prosecution
Making substantive application and determination within the judgment on certificate of electronic evidence when the Prosecution waived such right by conceding admission of the evidence;
Selectively recording evidence presented leaving out important facts favorable to the Accused person
Appellant’s breach of bail and bond terms during Corvid and was locked up in a warrant of arrest despite confusion due to Chief Justice directions.
58.The Trial Court’s Ruling of 16/6/2023 imputing Accused person’s Counsel’s conduct as improper and unprofessional claiming it is the advocate who advised the client to ask the Court to recuse itself from the matter and the Trial court refused to recuse herself perpetuating bias through-out trial and breaching the Appellant’s right to fair trial.
The Trial Court found the Prosecution ought to be given notice evidenced by notice to the prosecution is a breach of accused person Constitutional right.
BURDEN & STANDARD OF PROOF
59.The burden of Proof was shifted to the Defense. The Trial Court struck off Defense Exhibit 2 a and b as exhibits even though a consent was entered for production of exhibits. The Trial Court ignored the weighty conduct of PW1 & PW2 who failed and deliberately refused to avail PW1 for examination despite the Court having issued an order for examination of the minor at Mama Lucy Kibaki Hospital. The Trial Court failed to consider/find contradiction and inconsistencies within testimonies of Prosecution witnesses contrary to the charges and evidence on record. The Trial Court did not consider the c
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