The appellant herein George Frank Juda was charged, Convicted and sentence to serve life imprisonment by the trial court for the offence of defilement contrary to section 8(1) as read with section 8(2) of the sexual offences Act. The particulars are that on 20th October 2022 at around 1700hrs at orngoswa village in Loitokitok sub- county Kajiado County, he intentionally and unlawfully caused his penis to penetrate the vagina of S.K.I a girl aged 10 years.
In the alternative, the accused was charged with the committing an indecent act with a child contrary to section 11(1) of the sexual offences Act. The particulars of the fact are that 20th October 2022 at orngoswa in Loitokitok Sub- County Kajiado County he intentionally and unlawfully touched the Vagina of S.K.I a juvenile aged 10 years with his penis.
The appellant also faced a second count of defilement contrary to section 8(1) as read together with section 8(2) of the sexual offences Act. The particulars are that on 20th October 2022 at around 1700 hrs at orngoswa village in Loitokitok sub county in Kajiado County, intentionally and unlawfully caused his penis to penetrate the vagina of NLW a girl aged 10 years. In the alternative, the appellant was charged with committing an indecent act with a child contrary to section 11(1) of the sexual offences Act. The particulars are that on 22nd October 2022 at orngoswa in Loitokitok sub county Kajiado County intentionally and unlawfully touched the vagina of NLW a juvenile aged 10 years with his penis.
.
Dissatisfied with the conviction and sentence meted out by the magistrate court, the appellant filed this appeal faulting the decision on the following grounds;
1 THAT the Learned trial Magistrate erred in law and fact when she convicted him on a defective charge under the provisions of section 214 of the Criminal Procedure Code.
2 THAT the Learned trial Magistrate further erred in law and in fact by overlooking the inconsistencies pointed out by the appellant as it relates to witnesses.
3 THAT the Learned trial Magistrate further erred in law and in fact by imposing a harsh and excessive and failing to find that the prosecution had not proved the case beyond reasonable doubt.
The appellant therefore prays that the appeal be allowed, the conviction and sentence quashed and set aside and he be set free.
I have considered fully, re-evaluated and analysed the evidence tendered by the prosecution and the decision by the trial court as required of the first appellate court and for the reason that I shall shortly render, I will not go into details of the witness’s testimonies and the analysis for the reason that shall be apparent shortly.
ISSUES FOR DETERMINATION
1. Whether the admission of the written statement of defence amounts to appellant defence under section 211 of the CPC
2. Whether to order for a retrial or quash the Conviction
At the conclusion of the prosecution case, the trial court Hon NTHUKU JUDICASTER (PM) in a Ruling found that a prima facie case had been made against the appellant requiring his defence. The ruling was delivered on 15th May 2023 and provisions of section 211 of the CPC was explained to the accused person who elected to give unsworn defence and call no witness. The defence hearing was set for 15th June 2023. On 15th June 2023, the accused stated that “my defence is ready. Its written.” and the court reserved judgment for 28th June 2023 which was delivered a day later on 29th June 2023.
Section 211 of the Criminal Procedure Code which provides as follows: -
"(1) At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).
Section 211 (Criminal Procedure Code) requires that the rights of an accused person be explained to him at the close of the prosecution case and when put on his defence. These rights are:
“(a) The right of remaining silent and saying nothing at all.
(b) The right to make an unsworn statement from the dock (emphasis added) in which event the accused is not liable to cross examination by prosecution.
(c) The right to give sworn evidence from the witness box in which event the accused becomes liable to cross examination by the prosecution if the prosecution wishes.
(d) The right to call witnesses if accused so wishes.”
These are fundamental rights of the accused person in a criminal trial. They are meant to ensure a fair trial.
While the law does not explicitly require an accused person to provide written statement in defence under section 211 Criminal procedure Code, an accused person can provide a written statement in certain circumstances such as statement to the police and in mitigation. During trial however, the law contemplates presentation of oral testimony or statement sworn or unsworn.
In the instant case the court adopted a procedure unknown to criminal procedure and the practice of criminal law in the Kenya. Once an accused person has been placed on his/her defence, the law envisages a defence hearing either on oath from the witness box or unsworn from the dock. The magistrate however, permitted the accused to tender written defence in place of oral testimony. This procedure as stated is not provided for in criminal procedure code and in addition, the presentation of a written defence denies the court and the prosecution the opportunity to observe the demeanour of a witness which is an important aspect in criminal trials. One of the few situations where the law permits a witness such as an accused person in defence to give evidence in any other manner is where the witness suffers from disability or through an intermediary under Article 50 (7) of the Constitution. Section 126(1) of the Evidence Act Cap 80 provides;
1.“that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but such writing must be written, and the signs made, in open court,”
2.“Evidence so given shall be deemed to be oral evidence”
The court may also permit reception and admission of pre-recorded evidence or statement made by a witness as evidence in chief where such a witness is a vulnerable witness under sexual offences Rules 2014
In the appeal before me there is no indication whatsoever that the accused person was labouring under any disability as to make him incapable of giving unsworn oral statement or that he was in any way vulnerable. In Republic versus Koskei criminal case no 14 of 2017, the court dealing with the issue whether there is a requirement in law for an accused person who wishes to testify to reduce their testimony into writing stated;
“Having carefully considered the position and having found that there is no legal requirement for an accused to reduce his evidence into a statement, as persuaded by the reasoning of in Mbuvi, Cholmondeley and Mugambi cases”
It is therefore my finding that the accused person before the trial court did not testify in defence as the written statement tendered to court is not evidence but a mere statement bereft of any evidential value.
2.Whether to order for a retrial or quash conviction
I have anxiously considered the appeal in light of provision of section 211 of the Criminal procedure code and ask whether the error and lapse in procedure should lead to a retrial.
The guidelines on whether or not to order a retrial or quash conviction was discussed in Samuel Wahini Ngugi vs Republic (2012) eklr the court stated that;
“It is true that where a conviction is vitiated by gaps in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered…. In this judgment the court accepted that a retrial should not be ordered unless the court was of the opinion that on consideration of admissible or potentially admissible evidence a conviction might result….an order for a retrial should only be made where the interest of justice required it and should not be ordered when it is likely to cause an injustice to accused person”
In above case, the Court declared a mistrial on the basis of contravention of the statutory provisions of section 211 of the Criminal Procedure Code and Articles 50 (2) (c) and (g) of the Constitution, stating that “both provision of the law and the Constitution provide the bedrock of fair trial. As the Indian Supreme Court observed in the case of Natasha Singh vs CBI (2013) 5 SCC 741-
“Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized."
I have come to a definite conclusion that this is a matter suitable for a retrial. The accused right to a fair trial was substantially affected and materially prejudiced. The court failed to afford the appellant an opportunity to present his testimony as required by law.
Consequently, and as the prosecution concede the appeal on the ground that the same was conducted in an irregular manner, I order that the appeal on conviction and sentence are hereby set aside.
A retrial is hereby ordered before any other magistrate other than Nthuku Judicaster.
The appellant shall be presented to the police for processing and plea taking within 14 days of this order.
In the alternative, the accused was charged with the committing an indecent act with a child contrary to section 11(1) of the sexual offences Act. The particulars of the fact are that 20th October 2022 at orngoswa in Loitokitok Sub- County Kajiado County he intentionally and unlawfully touched the Vagina of S.K.I a juvenile aged 10 years with his penis.
The appellant also faced a second count of defilement contrary to section 8(1) as read together with section 8(2) of the sexual offences Act. The particulars are that on 20th October 2022 at around 1700 hrs at orngoswa village in Loitokitok sub county in Kajiado County, intentionally and unlawfully caused his penis to penetrate the vagina of NLW a girl aged 10 years. In the alternative, the appellant was charged with committing an indecent act with a child contrary to section 11(1) of the sexual offences Act. The particulars are that on 22nd October 2022 at orngoswa in Loitokitok sub county Kajiado County intentionally and unlawfully touched the vagina of NLW a juvenile aged 10 years with his penis.
.
Dissatisfied with the conviction and sentence meted out by the magistrate court, the appellant filed this appeal faulting the decision on the following grounds;
1 THAT the Learned trial Magistrate erred in law and fact when she convicted him on a defective charge under the provisions of section 214 of the Criminal Procedure Code.
2 THAT the Learned trial Magistrate further erred in law and in fact by overlooking the inconsistencies pointed out by the appellant as it relates to witnesses.
3 THAT the Learned trial Magistrate further erred in law and in fact by imposing a harsh and excessive and failing to find that the prosecution had not proved the case beyond reasonable doubt.
The appellant therefore prays that the appeal be allowed, the conviction and sentence quashed and set aside and he be set free.
I have considered fully, re-evaluated and analysed the evidence tendered by the prosecution and the decision by the trial court as required of the first appellate court and for the reason that I shall shortly render, I will not go into details of the witness’s testimonies and the analysis for the reason that shall be apparent shortly.
ISSUES FOR DETERMINATION
1. Whether the admission of the written statement of defence amounts to appellant defence under section 211 of the CPC
2. Whether to order for a retrial or quash the Conviction
At the conclusion of the prosecution case, the trial court Hon NTHUKU JUDICASTER (PM) in a Ruling found that a prima facie case had been made against the appellant requiring his defence. The ruling was delivered on 15th May 2023 and provisions of section 211 of the CPC was explained to the accused person who elected to give unsworn defence and call no witness. The defence hearing was set for 15th June 2023. On 15th June 2023, the accused stated that “my defence is ready. Its written.” and the court reserved judgment for 28th June 2023 which was delivered a day later on 29th June 2023.
Section 211 of the Criminal Procedure Code which provides as follows: -
"(1) At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).
Section 211 (Criminal Procedure Code) requires that the rights of an accused person be explained to him at the close of the prosecution case and when put on his defence. These rights are:
“(a) The right of remaining silent and saying nothing at all.
(b) The right to make an unsworn statement from the dock (emphasis added) in which event the accused is not liable to cross examination by prosecution.
(c) The right to give sworn evidence from the witness box in which event the accused becomes liable to cross examination by the prosecution if the prosecution wishes.
(d) The right to call witnesses if accused so wishes.”
These are fundamental rights of the accused person in a criminal trial. They are meant to ensure a fair trial.
While the law does not explicitly require an accused person to provide written statement in defence under section 211 Criminal procedure Code, an accused person can provide a written statement in certain circumstances such as statement to the police and in mitigation. During trial however, the law contemplates presentation of oral testimony or statement sworn or unsworn.
In the instant case the court adopted a procedure unknown to criminal procedure and the practice of criminal law in the Kenya. Once an accused person has been placed on his/her defence, the law envisages a defence hearing either on oath from the witness box or unsworn from the dock. The magistrate however, permitted the accused to tender written defence in place of oral testimony. This procedure as stated is not provided for in criminal procedure code and in addition, the presentation of a written defence denies the court and the prosecution the opportunity to observe the demeanour of a witness which is an important aspect in criminal trials. One of the few situations where the law permits a witness such as an accused person in defence to give evidence in any other manner is where the witness suffers from disability or through an intermediary under Article 50 (7) of the Constitution. Section 126(1) of the Evidence Act Cap 80 provides;
1.“that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but such writing must be written, and the signs made, in open court,”
2.“Evidence so given shall be deemed to be oral evidence”
The court may also permit reception and admission of pre-recorded evidence or statement made by a witness as evidence in chief where such a witness is a vulnerable witness under sexual offences Rules 2014
In the appeal before me there is no indication whatsoever that the accused person was labouring under any disability as to make him incapable of giving unsworn oral statement or that he was in any way vulnerable. In Republic versus Koskei criminal case no 14 of 2017, the court dealing with the issue whether there is a requirement in law for an accused person who wishes to testify to reduce their testimony into writing stated;
“Having carefully considered the position and having found that there is no legal requirement for an accused to reduce his evidence into a statement, as persuaded by the reasoning of in Mbuvi, Cholmondeley and Mugambi cases”
It is therefore my finding that the accused person before the trial court did not testify in defence as the written statement tendered to court is not evidence but a mere statement bereft of any evidential value.
2.Whether to order for a retrial or quash conviction
I have anxiously considered the appeal in light of provision of section 211 of the Criminal procedure code and ask whether the error and lapse in procedure should lead to a retrial.
The guidelines on whether or not to order a retrial or quash conviction was discussed in Samuel Wahini Ngugi vs Republic (2012) eklr the court stated that;
“It is true that where a conviction is vitiated by gaps in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered…. In this judgment the court accepted that a retrial should not be ordered unless the court was of the opinion that on consideration of admissible or potentially admissible evidence a conviction might result….an order for a retrial should only be made where the interest of justice required it and should not be ordered when it is likely to cause an injustice to accused person”
In above case, the Court declared a mistrial on the basis of contravention of the statutory provisions of section 211 of the Criminal Procedure Code and Articles 50 (2) (c) and (g) of the Constitution, stating that “both provision of the law and the Constitution provide the bedrock of fair trial. As the Indian Supreme Court observed in the case of Natasha Singh vs CBI (2013) 5 SCC 741-
“Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized."
I have come to a definite conclusion that this is a matter suitable for a retrial. The accused right to a fair trial was substantially affected and materially prejudiced. The court failed to afford the appellant an opportunity to present his testimony as required by law.
Consequently, and as the prosecution concede the appeal on the ground that the same was conducted in an irregular manner, I order that the appeal on conviction and sentence are hereby set aside.
A retrial is hereby ordered before any other magistrate other than Nthuku Judicaster.
The appellant shall be presented to the police for processing and plea taking within 14 days of this order.