The Appellant herein, Goerge Mugodo Mayodi and LEONIDA KHAMALA were jointly charged in Migori CMC Criminal Case No. E773 of 2021 with four (4) counts stated as follows.
In Count 1, they were charged with the offense of trafficking in person contrary to section 3(i) (d) as read with section 3(5) of the Counter Trafficking in Persons Act No. 8 of 2010.
The particulars of the offense are that on diverse dates between the year 2020 and 4th of July 2021 at Kibera Nairobi County and God Jope area in Suna East Sub County within Migori County in the Republic of Kenya fraudulently harbored M.A alias U.M a child aged 6 years by deception for the purpose of exploiting the said M.A alias U.M.
In count 2 they were charged with the offence of trafficking in person contrary to section 3(i) (d) as read with section 3(5) of the Counter Trafficking in Persons Act No. 8 of 2010.
The particulars are that on the diverse dates between 21st April 2019 and 4th July 2021 at Kibera area within Nairobi County and God Jope area in Suna East Sub County within Migoru County in the Republic of Kenya fraudulently harbored S.A a child aged 13 years by deception for the purpose of exploiting the said S.A.
In count 3, they were charged with the offense of trafficking in person contrary to section 4(i) (a) as read with section 3(5) of the Counter Trafficking in Persons Act No. 8 of 2010.
The particulars are that on unknown dates between the month of May 2015 and 4th July 2021 at Umoja area within Nairobi county and God Jope area within Migori County Suna East in the Republic of Kenya the accused persons fraudulently harbored from Imani Children Home T.F.I alias F.M.M a child aged 9 years for the purposes of child adoption.
In count 4, they were charged with the offence of making a false statement in the registration of birth contrary to section 363 of the penal code.
The particulars are that on the 29th of March 2019 at National Registry District Office within Nairobi County knowingly and with Intent to procure a birth certificate made a false statement to be inserted in the certificate of birth securing entry number 0260ED100/2019 in the name of F.M.M alias TFI a child aged 9 years purposely that they are the father and mother of the said F.M.M alias TFI a fact they knew to be false.
The accused persons denied the charges and the matter proceeded to trial. During the trial, the prosecution withdrew the charges in count 3 and 4 against the accused persons under to Section 87 (a) of the Criminal Procedure Code on 1st November 2021. The case then proceeded against the accused persons in respect of count 1 and count 2.
The prosecution called thirteen (13) witnesses to support the charge against the Appellant and the Appellant on her defense testified that she did not know the two minors prior to her arrest. After considering the evidence on record, the trial court found the Appellant guilty of both counts and fined her of Kshs. 500,00 in each count in default to serve 10 years’ imprisonment in each count to run consecutively.
The Appellant was aggrieved by the judgement of the trial court and appealed to this court vide Petition of appeal filed on 27th July 2022 on the following grounds:
(1). THAT the Trial court erred in both law and fact by failing to comply with Article 50 (2) (g) & (h) of the Constitution
(2). THAT the trial court erred both in law and fact by not observing that the ingredients of the offence herein were not proved as required by law.
(3). THAT the Trial Court erred in both law and facts by meting harsh and excessive sentence.
REASONS WHEREOF the Appellant prayed that the conviction be quashed and sentence set aside.
PW1 testified that S. A was her daughter and she got lost on 21st April 2019 and she reported to the Chief and to the Children’s Office within Kibera. She also reported to Kilimani Police Station, Olympic Police Post and South C Police Station and the report was booked. Pamoja Radio FM also circulated the information that PW1’s child was missing. The search for the child took her to KNH and the City Mortuary but she did not trace her. When she received a call from a stranger telling them the child had been cited at Busia they send 5000/= for the child’s transport but it was a fraudulent call and they reported at Kilimani for investigations as to the call and the conman was traced and arrested for many other such frauds and detained in Naivasha Prison.
It was PW1’s further evidence that on 16th July 2021 she received a call from PW12 a Tobias Oyugi police officer attached to Migori Police Station who instructed her to go to the Children’s office in Kibera where she learnt her child had been traced in Migori. That she travelled to Migori where she was able to identify her daughter who was at a children’s home.
PW2 the father of the child in Count 2 reiterated evidence adduced by his wife PW1 as to how their daughter got lost and the efforts they made to trace her until when they received a call from PW12 a police officer from Migori on 16th July 2021 and they learnt that their child had been traced in Migori living with the Appellant.
PW3- S. A (The child aged 13 years fraudulently harbored by the Appellant in Count 2 of the charges) Testified that at the time of the trial, she was living at a children’s home in Migori. She testified that before then she was living in God Jope. And before she found herself at God Jope, she was living in Kibera. It was her further testimony that on the day of her abduction, she was playing when the 2nd Accused person (Now Appellant) approached her and told her that she was taking her to her rural home. She stated that she did not accept and the Appellant took her into a vehicle and they travelled to Migori. She stated that she had not seen the Appellant prior to that day the Appellant took her from where they were playing. It was her further testimony that she was rescued by a police officer who took her from the Appellant’s home.
PW4- U.M alias M.A (The child aged 9 years fraudulently harbored by the Appellant in Count 1 of the charges) testified that she used to live in Kibera within Nairobi County. She explained that she was playing with her friends and in the process, the Appellant emerged and told her to board the vehicle so that she could take her to her Grandmother’s home. She stated that in the vehicle they were only three people: the driver, the Appellant and her. She further testified that the Appellant took her to Kakamega into a house where she saw the 1st Accused person. That from Kakamega the Appellant took her to God Jope. She further testified that while at God Jope, the Appellant wanted to beat her and that she went away and got lost. She then went to a place called Benga and was rescued by somebody who took her to the Chief’s office. It was her further testimony that from the chief’s office she lived with a certain old lady for seven (7) days after which she was taken to Migori police station. She further testified that the Appellant was mistreating her hence she decided to run away from the Appellant’s home.
PW5 testified that the subject child in Count 1 PW4 was her grandchild who went missing in 2018. That upon discovering she was missing when playing outside, she informed the neighbors and conducted a search but did not find the child. She then made a report at the Mosque as the child was Muslim and further made a report at the Chief’s office. She testified that sometime later she received a call from a police officer and was directed to Kilimani Chief’s office where she was shown a photograph and she identified the child. She then came to a children’s home in Migori and saw the child. PW5 presented a child health card for the child.
PW6- Damaris Katheu Mutave testified that she is a Teacher at New Life M.C School in Nairobi. That in the year 2018, U.M was one of their pupils at their school and was in PP2. She explained that in January 2019, U.M’s grandmother went and reported that the child had gone missing. She further testified that in August 2021, she received a phone call from a police officer who asked her whether one of their pupils at school had gone missing and she confirmed to the Police Officer that U.M had gone missing. She further stated that they had the school records in respect of the Child.
PW7-Tobias Onudi Ogweno testified that he is the Chief of North West Kisumu Location. He stated that he wrote a letter explaining that S.A is a total orphan and was left in custody of her uncle by the name Nelson Otieno Adero. He produced the letter dated 5th August 2021 as exhibit 7 herein.
PW8- Martin Oindo testified that he is the Assistant Chief of West Karateng Sub location in Kisumu West. He stated that he knows S.A and that when he was informed that the child got lost, he wrote a letter to confirm that he knew the child. He produced the letter as exhibit 8.
PW9- Ruth Kisa testified that she is a village elder and lives in God Jope. She stated that on the 30th day of June 2021 they were at the Baraza when one of the village elders brought a child. She stated that the child identified herself as Adel. She stated that girl explained to her that she was living with Mugodo and a certain lady and that she had been stolen from Nairobi and that she was being tortured. She stated that the child told her that there were other two children who were living with her in the same place. It was her further testimony that after the meeting the Assistant Chief told her to go with the child to her home. It was her further testimony that after two days, the Assistant Chief went and informed her that the child's mother was at God Jope. She stated that they went with the Assistant Chief to God Jope and when they reached there, they found the Appellant who claimed that the child belongs to her. She stated that the Appellant had the other two children and claimed they were her children. It was her further testimony that the Appellant gave the Chief her phone to talk to her husband and the Assistant Chief talked to the husband of the Appellant who told him that he had taken the children from Nairobi. She further stated that the that the Appellant’s husband told her that they could take the girl and leave the boy. She stated she went back to her home with the child. She stated that she later took the child to the police station.
PW 10- Elisha Oluoch testified that he is the Assistant Chief of Manyatta Sub location. He stated that on the 1st day of June 2021 he was in his office when one of the village elders by the name Caleb Wareta went in the company of a child and told him that the child had been rescued by a member of the public at a place known as Benga. He stated that they interrogated the girl who told them that her parents were in Nairobi. And that she was living in God Jope with a lady by name Leunida. He stated that the girl told them that they were living together with other children. He stated that they started looking for Leunida and they sent word and Leunida came to their office. He stated that when Leunida went to their office, she admitted that she was living with the child and that the child was her brother's child and got lost when from school. It was his further testimony that the Appellant told them that the father to the child was deceased and she was the one having custody of the child. He stated that the Appellant told them that she was having two other children in her custody. It was her further testimony that the girl explained to them that the parents were in Nairobi and that she knows the school in which she was learning in Nairobi.
He stated that the Appellant went and brought the other two children and that they were a girl and a boy. He stated that the children were in company of the 1st accused person's sister, who told them that the children do not belong to the 1st accused person and that she was living with one of the girls who looked older than the first girl who had been rescued. He stated that the Appellant was mistreating the girls and that is why she took one of the girls to her house. He further stated that the girl refused to go back with the Appellant and he gave the girl to one of the village elder and he handed over the matter to the police for further investigation. He stated that he did not talk to the 1" accused.
PW 11- PC (W) Janet Awuor testified that on the 4th day of July 2021, he accompanied PC Oyugi to God Jope police post. She stated that when they reached God Jope police post they found the Appellant together with a young boy called Freddy. She stated that when they reached the trading Centre the Appellant started calling the husband, that is the 1st accused person. She stated that the Appellant’s husband joined them and they proceeded to Migori Police station. She stated that on the 5th day of July 2021, PC Oyugi requested her to go and rescue a girl and that they proceeded to the place. They found children in the house of Josephine and they took Josephine and Celine to Migori Police Station.
PW 12- Tobias Oyugi testified that he investigated this case. He stated that he commenced investigation on the 2nd day of July 2021 after receiving a letter from the assistant chief of Manyatta sub location. He stated that the letter was delivered by a village elder who was in a company of a minor. He stated that the recorded the statement of the minor and the village elder. Later, he contacted in charge of God Jope police post to connect him with the Appellant and stated that the Appellant was traced and went to God Jope Police Post. He testified that he went to God Jope on the 4th of April 2021 where he found the Appellant and the minor. He stated that he escorted them to Migori police station and on the way, they met with the Appelant's husband that is the 1st accused person. He stated that the 1st accused person had documents showing that they had adopted the minor from Imani Children's Home in Nairobi.
It was his further testimony that when they reached Migori Police Station he interrogated the two accused persons who brought to his attention another minor aged about 15 years who was living with the accused's relative. He stated that on the 5/7/2022 they proceeded to the home of the accused person relative by the name Josephine where they rescued the minor that is S.A. He stated that they took S.A to Migori Police Station. It was his further testimony that while at the police station S.A explained to him that he escaped from the Appellant’s home due to the harsh condition. He stated that S.A explained to him that Josephine is a Niece to the 1st accused person. He stated that S.A further told him that she had been stolen from Nairobi. He further stated that he went to Kibera Children's home where he met with the guardians of S.A that is PW1 and PW2.
He further stated that he also discovered that there was a report about a missing child which had been made by PWI and PW2 at Kilimani Police station viewed OB number 59/23/4/2019. He stated that during the investigation he discovered that the parents of S.A passed on and that she was living with her guardians in Nairobi. He stated that during the investigation he discovered that the 2nd minor’s name was U.N which was changed to M.A when she was taken by the Appellant. He stated that he was able to trace M. A's grandmother who was living in Nairobi who informed him that the father of M.A was in prison while the mother abandoned her. He stated that he went to the school where M.A was learning and he was given the documents to confirm the position. He produced documents in support of their case.
PW 13- Josephine Kagai testified that she lives in God Jope. She stated that S.A was living with the accused person but she is not their Child. she stated that the 1st accused person came with S.A from Nairobi. She stated that at that time, she was living with the mother and grandmother and the 1st accused told her that he has brought S.A to assist her. She stated that U.M was brought by her uncle by the name Nelson who informed her that the Appellant had given him the child. She stated that police officer found S.A in her house and requested her to record a statement.
When the Appellant and her co-accused were placed on defense the 1st Accused person gave unsworn statement and said that he lived in God Jope and he was a farmer. He said that in June 2021 he had gone home for a burial and that on 18th June 2021 2 police officers went to their home and talked to the wife and then left. That the following day the police officer called the wife to go to God Jope and she went with the child. That the wife called and requested him to take to her documents and when he went he found she had been taken to Migori Police Station. That at the station P. C. Oyugi started interrogating him about Celline and he was placed in cells and his wife was also detained.
The 1st Accused said that the following day he saw Celline together with Josephine. He said he did not see Celline in his house and he did not come with her from Nairobi. He said Josephine and her mother wanted to involve him in matter he did not know and wanted to sell his land.
The Appellant gave sworn statement and said that on 4th June 2021 was a Saturday and she went for a funeral in the village. That she heard somebody walking in the maize plantation and the person threatened that they would kill her. That she entered her house as she was scared. That she called her husband and the following day police visited her home and she explained what had happened and she went to God Jope to record her statement
That on 4th June 2021 police officer told her that he had done investigation and found the person who wanted to kill her and so she was wanted to go and record statement.That he went with the Officer to God Jope where she found the Chief who told her she brought the child but she knew nothing about Uzna.
DW3 Zipporah Nyaulu Magodi testified that she lived in Osingo and was a farmer. She said A1 was her brother. She said she knew Uzna but not very wel. She said Celline was her brother’s daughter. She said that Josephine lied in court.
In cross examination DW3 said that Celline used to live with the accused person.
This appeal was canvassed y way of written submissions.
ANALYSIS AND DETERMINATION
This being a first appeal the mandate of this court was clearly stated in the case of Okeno Vs Republic as follows:
Having considered the Appellant’s grounds of appeal, re-evaluated the evidence in the trial court as well as the judgement of the Trial Magistrate and having analyzed the submissions of the rival parties herein the issues that arise for determination are:
(a). Whether the Trial court failed to comply with Article 50 (2) (g) & (h) of the Constitution
(b). Whether the ingredients of the offence trafficking in person and making false statement were proved as required by law.
(c). Whether the sentence was harsh and excessive.
On whether the Trial court failed to comply with Article 50 (2) (g) & (h) of the Constitution The Supreme Court in R v Chengo & 2 Others (Petition No 3 of 2015) where it was held :-
‘’…We must however emphasize the fact that in accordance with the language of the Constitution this particular right is not open ended. It only becomes available if substantial injustice would otherwise result’’.
It was further submitted that from the proceedings it is evident that no substantial injustice was occasioned since the Appellant fully participated in the prosecution hearing, cross examined the witnesses and conducted his defense. That the Appellant did not raise the issue of legal representation before the trial court and cannot claim that the court erred.
Further in the case of Manyeso V Republic (Criminal Appeal No 12 of 2021[2023] KECA 827 the court in dealing with the issue of legal representation stated that:-
‘’…However, in the present appeal, the Appellant did not raise the issue of legal representation either in the trial court or in the High Court, and the record of the trial court shows that the appellant participated in the trial and cross examined witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the Appellants arguments that their rights to fair trial under Article 50(2) (g) and (h) of the Constitution were violated.’’
when the Appellant and his wife were arraigned in court and before the charge was read to them the provisions of Article 50(2) of the Constitution were explained and they said they were ready to proceed. Subsequently the charge was read to them in a language of their choice and they pleaded not guilty. On 28th July 2021 when the Prosecution said it had 5 witnesses the Appellant and his wife said that they were looking for an advocate and the hearing was adjourned to enable them instruct an advocate. In consideration of the explanation given to the Appellant and the indulgence by the court to enable the Appellant instruct an advocate coupled with the active participation of the Appellant in cross examination of prosecution witnesses and evidence tendered in defense this court finds that the rights under Article 50(2) of the Constitution were not infringed in any way or at all.
On whether the ingredients of the offence trafficking in person and making false statement were proved as required by law.
The offence of trafficking in persons is provided for in Section 3(1) of the Act as follows:
“A person commits the offence of trafficking in a person when the person recruits, transports, transfers, harbors or receives another person for the purpose of exploitation by means of;
a) threat or use of force or other forms of coercion;
b) abduction;
c) fraud;
d) deception;
e) abuse of power or of position of vulnerability;
f) giving payments or benefits to obtain the consent of a person having control over another person.
In the case of Muhammad Asif v Republic [2017] eKLR the court explained that:
“The offence of trafficking in persons captures the entire trafficking continuum, and engagement in just one of these trafficking “stages” is sufficient. Therefore, different persons or groups of people may be responsible for different aspects of the trafficking crime. The offence is thus formulated in such a way as to capture the different actors along the trafficking continuum, including those who do not directly exploit the victim’s labor or services, so long as they knew their action was for the purpose of exploiting or facilitating the exploitation of a person.”
The position was further reiterated and reinforced in the case of Benard Onyandi v Republic (2018) eKLR where the court stated as follows:
“If the prosecution established to the satisfaction of the court that the accused was part of the chain and committed only one act in the chain which was aimed at facilitating the commission of the offence, he would be guilty of the offence of trafficking in Persons.”
After a thorough review of the prosecution evidence tendered before the trial court, it is apparent that the key witnesses indicated that they knew the Appellant herein, and identified him as one of the perpetrators of the Offenses under count 1 and Count 2.
The evidence of PW3 and PW4 clearly demonstrate that the Appellant herein and his wife took them from the place they were playing that is Makina and Kibera and further deceived each of them that she was taking them to their rural homes to see their grandmother. Thereafter they were transported to Kakamega and subsequently to God Jope within Migori County where they lived with the Appellant and his wife until PW4 escaped when the Appellant’s wife wanted to beat her and as a result they were rescued.
When the Appellant’s wife was summoned by the Assistant Chief PW10 she claimed that PW4 was her late brother’s child and that she got lost from school. DW3 confirmed that the Appellant herein was her brother and his wife the 2nd Accused in the trial court lived with PW3 S. A who was the brother’s child.
PW1 testified that S. A was her daughter and she got lost on 21st April 2019 and she reported to the Chief and to the Children’s Office within Kibera. She also reported to Kilimani Police Station, Olympic Police Post and South C Police Station and the report was booked. Pamoja Radio FM also circulated the information that PW1’s child was missing. The search for the child took her to KNH and the City Mortuary but she did not trace her. When she received a call from a stranger telling them the child had been cited at Busia they send 5000/= for the child’s transport but it was a fraudulent call and they reported at Kilimani for investigations as to the call and the conman was traced and arrested for many other such frauds and detained in Naivasha Prison.
It was PW1’s further evidence that on 16th July 2021 she received a call from PW12 Tobias Oyugi a police officer attached to Migori Police Station who instructed her to go to the Children’s office in Kibera where she learnt her child had been traced in Migori. That she travelled to Migori where she was able to identify her daughter S. A. who was at a children’s home.
PW2 the father of the child in Count 2 reiterated evidence adduced by his wife PW1 as to how their daughter got lost and the efforts they made to trace her until when they received a call from PW12 a police officer from Migori on 16th July 2021 and they learnt that their child had been traced in Migori living with the Appellant and his wife.
PW1 and PW2 produced a family photograph that they took together with the subject child and the child’s health card that confirmed that indeed she was their child.
PW3 the child to PW1 and 2 testified that the Appellant’s wife who was not known to her before found when she was playing and told her that she was taking her to her rural home. That she did not accept but the Appellant took her into a vehicle and they travelled to Migori.
PW7 and PW8 the Chief and Assistant Chief of North West Kisumu and West Karateng respectively testified that they wrote letters explaining that they knew S.A, who is a total orphan and who was left in custody of her uncle by the name Nelson Otieno Adero, PW2 herein.
In regard to PW4 the child in Count 1 she was also abducted from Makina within Kibera by the Appellant’s wife who emerged and told her to board a vehicle so that she could take her to her grandmother’s home. The Appellant’s wife who was unknown to her found her playing with her friends in Kibera within Nairobi County and cheated her that she was going to buy for her sweets but made her board a vehicle. She stated that she was first taken to Kakamega then to God Jope. It was her further testimony that before she was known as U.M but the Appellant’s wife changed her name to M.A and that while at God Jope, the Appellant’s wife wanted to beat her and she ran away and got lost. She then went to a place called Benga and she was rescued by somebody who took her to the Chief’s office.
PW5 testified that the subject child in Count 1, PW4 was her grandchild who went missing in 2018. That upon discovering she was missing when playing outside, she informed the neighbors and conducted a search but did not find the child. She then made a report at the Mosque as the child was Muslim and further made a report at the Chief’s office. She testified that sometime later she received a call from a police officer and was directed to Kilimani Chief’s office where she was shown a photograph and she identified the child. She then came to a children’s home in Migori and saw the child. PW5 presented a child health card for the child.
PW6 testified that she was a teacher at New Life M.C where PW4 schooled in PP2 in 2018. That January 2019, U. M’s grandmother reported that she was missing. PW6 further testified that in August 2021 she received a call from a police officer who inquired whether one of their pupils had gone missing and she confirmed to the officer that it was U.M and availed the school records in respect of the missing child.
PW9 Ruth Kisa a Village Elder in God Jope was at a baraza when PW4 was handed over to her after having been rescued and she was asked to interrogate her in mother tongue as she was speaking Maragoli language. The child told her that she had been stolen from Nairobi by a lady who cheated her she was going to buy for her sweets but put her in a vehicle that drove away. The Chief instructed her to take child to her home pending investigations. PW9 said that when the Appellant went to claim the child from the Assistant Chief she said the child was hers and when the Assistant Chief spoke to the Appellant’s husband he confirmed they got the children from Nairobi and told the Assistant Chief to take the girl and leave the boy. The Assistant Chief PW10 and PW9 reported the matter to police at Migori and recorded their statements as to how they came to have custody of PW4.
PW12 Tobias Oyugi investigated the offence herein when the Assistant Chef of Manyatta wrote a letter which was delivered by a village elder who was in company of a child who had escaped from the Appellant’s home because of being mistreated. He instructed the Officer In Charge God Jope Police Post to summon the Appellant and when he met her she was in company of another minor whom the Appellant’s husband produced documents alleging they had legally adopted him. That on interrogation of the Appellant and her husband, PW4 was established to have been going to school in PW6’s school and that she was staying with her grandmother PW5 as her father was at Kamiti Prison. PW12 produced exhibits in relation to loss of the children and their identity as Exhibits P1 to 13.
Arising from the analysis above it is clear that the Appellant used deception to trick and take PW4 from Nairobi County and transported her to God Jope area within Migori County without the consent and permission of her guardian PW5 herein.
In consideration of the
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In Count 1, they were charged with the offense of trafficking in person contrary to section 3(i) (d) as read with section 3(5) of the Counter Trafficking in Persons Act No. 8 of 2010.
The particulars of the offense are that on diverse dates between the year 2020 and 4th of July 2021 at Kibera Nairobi County and God Jope area in Suna East Sub County within Migori County in the Republic of Kenya fraudulently harbored M.A alias U.M a child aged 6 years by deception for the purpose of exploiting the said M.A alias U.M.
In count 2 they were charged with the offence of trafficking in person contrary to section 3(i) (d) as read with section 3(5) of the Counter Trafficking in Persons Act No. 8 of 2010.
The particulars are that on the diverse dates between 21st April 2019 and 4th July 2021 at Kibera area within Nairobi County and God Jope area in Suna East Sub County within Migoru County in the Republic of Kenya fraudulently harbored S.A a child aged 13 years by deception for the purpose of exploiting the said S.A.
In count 3, they were charged with the offense of trafficking in person contrary to section 4(i) (a) as read with section 3(5) of the Counter Trafficking in Persons Act No. 8 of 2010.
The particulars are that on unknown dates between the month of May 2015 and 4th July 2021 at Umoja area within Nairobi county and God Jope area within Migori County Suna East in the Republic of Kenya the accused persons fraudulently harbored from Imani Children Home T.F.I alias F.M.M a child aged 9 years for the purposes of child adoption.
In count 4, they were charged with the offence of making a false statement in the registration of birth contrary to section 363 of the penal code.
The particulars are that on the 29th of March 2019 at National Registry District Office within Nairobi County knowingly and with Intent to procure a birth certificate made a false statement to be inserted in the certificate of birth securing entry number 0260ED100/2019 in the name of F.M.M alias TFI a child aged 9 years purposely that they are the father and mother of the said F.M.M alias TFI a fact they knew to be false.
The accused persons denied the charges and the matter proceeded to trial. During the trial, the prosecution withdrew the charges in count 3 and 4 against the accused persons under to Section 87 (a) of the Criminal Procedure Code on 1st November 2021. The case then proceeded against the accused persons in respect of count 1 and count 2.
The prosecution called thirteen (13) witnesses to support the charge against the Appellant and the Appellant on her defense testified that she did not know the two minors prior to her arrest. After considering the evidence on record, the trial court found the Appellant guilty of both counts and fined her of Kshs. 500,00 in each count in default to serve 10 years’ imprisonment in each count to run consecutively.
The Appellant was aggrieved by the judgement of the trial court and appealed to this court vide Petition of appeal filed on 27th July 2022 on the following grounds:
(1). THAT the Trial court erred in both law and fact by failing to comply with Article 50 (2) (g) & (h) of the Constitution
(2). THAT the trial court erred both in law and fact by not observing that the ingredients of the offence herein were not proved as required by law.
(3). THAT the Trial Court erred in both law and facts by meting harsh and excessive sentence.
REASONS WHEREOF the Appellant prayed that the conviction be quashed and sentence set aside.
PW1 testified that S. A was her daughter and she got lost on 21st April 2019 and she reported to the Chief and to the Children’s Office within Kibera. She also reported to Kilimani Police Station, Olympic Police Post and South C Police Station and the report was booked. Pamoja Radio FM also circulated the information that PW1’s child was missing. The search for the child took her to KNH and the City Mortuary but she did not trace her. When she received a call from a stranger telling them the child had been cited at Busia they send 5000/= for the child’s transport but it was a fraudulent call and they reported at Kilimani for investigations as to the call and the conman was traced and arrested for many other such frauds and detained in Naivasha Prison.
It was PW1’s further evidence that on 16th July 2021 she received a call from PW12 a Tobias Oyugi police officer attached to Migori Police Station who instructed her to go to the Children’s office in Kibera where she learnt her child had been traced in Migori. That she travelled to Migori where she was able to identify her daughter who was at a children’s home.
PW2 the father of the child in Count 2 reiterated evidence adduced by his wife PW1 as to how their daughter got lost and the efforts they made to trace her until when they received a call from PW12 a police officer from Migori on 16th July 2021 and they learnt that their child had been traced in Migori living with the Appellant.
PW3- S. A (The child aged 13 years fraudulently harbored by the Appellant in Count 2 of the charges) Testified that at the time of the trial, she was living at a children’s home in Migori. She testified that before then she was living in God Jope. And before she found herself at God Jope, she was living in Kibera. It was her further testimony that on the day of her abduction, she was playing when the 2nd Accused person (Now Appellant) approached her and told her that she was taking her to her rural home. She stated that she did not accept and the Appellant took her into a vehicle and they travelled to Migori. She stated that she had not seen the Appellant prior to that day the Appellant took her from where they were playing. It was her further testimony that she was rescued by a police officer who took her from the Appellant’s home.
PW4- U.M alias M.A (The child aged 9 years fraudulently harbored by the Appellant in Count 1 of the charges) testified that she used to live in Kibera within Nairobi County. She explained that she was playing with her friends and in the process, the Appellant emerged and told her to board the vehicle so that she could take her to her Grandmother’s home. She stated that in the vehicle they were only three people: the driver, the Appellant and her. She further testified that the Appellant took her to Kakamega into a house where she saw the 1st Accused person. That from Kakamega the Appellant took her to God Jope. She further testified that while at God Jope, the Appellant wanted to beat her and that she went away and got lost. She then went to a place called Benga and was rescued by somebody who took her to the Chief’s office. It was her further testimony that from the chief’s office she lived with a certain old lady for seven (7) days after which she was taken to Migori police station. She further testified that the Appellant was mistreating her hence she decided to run away from the Appellant’s home.
PW5 testified that the subject child in Count 1 PW4 was her grandchild who went missing in 2018. That upon discovering she was missing when playing outside, she informed the neighbors and conducted a search but did not find the child. She then made a report at the Mosque as the child was Muslim and further made a report at the Chief’s office. She testified that sometime later she received a call from a police officer and was directed to Kilimani Chief’s office where she was shown a photograph and she identified the child. She then came to a children’s home in Migori and saw the child. PW5 presented a child health card for the child.
PW6- Damaris Katheu Mutave testified that she is a Teacher at New Life M.C School in Nairobi. That in the year 2018, U.M was one of their pupils at their school and was in PP2. She explained that in January 2019, U.M’s grandmother went and reported that the child had gone missing. She further testified that in August 2021, she received a phone call from a police officer who asked her whether one of their pupils at school had gone missing and she confirmed to the Police Officer that U.M had gone missing. She further stated that they had the school records in respect of the Child.
PW7-Tobias Onudi Ogweno testified that he is the Chief of North West Kisumu Location. He stated that he wrote a letter explaining that S.A is a total orphan and was left in custody of her uncle by the name Nelson Otieno Adero. He produced the letter dated 5th August 2021 as exhibit 7 herein.
PW8- Martin Oindo testified that he is the Assistant Chief of West Karateng Sub location in Kisumu West. He stated that he knows S.A and that when he was informed that the child got lost, he wrote a letter to confirm that he knew the child. He produced the letter as exhibit 8.
PW9- Ruth Kisa testified that she is a village elder and lives in God Jope. She stated that on the 30th day of June 2021 they were at the Baraza when one of the village elders brought a child. She stated that the child identified herself as Adel. She stated that girl explained to her that she was living with Mugodo and a certain lady and that she had been stolen from Nairobi and that she was being tortured. She stated that the child told her that there were other two children who were living with her in the same place. It was her further testimony that after the meeting the Assistant Chief told her to go with the child to her home. It was her further testimony that after two days, the Assistant Chief went and informed her that the child's mother was at God Jope. She stated that they went with the Assistant Chief to God Jope and when they reached there, they found the Appellant who claimed that the child belongs to her. She stated that the Appellant had the other two children and claimed they were her children. It was her further testimony that the Appellant gave the Chief her phone to talk to her husband and the Assistant Chief talked to the husband of the Appellant who told him that he had taken the children from Nairobi. She further stated that the that the Appellant’s husband told her that they could take the girl and leave the boy. She stated she went back to her home with the child. She stated that she later took the child to the police station.
PW 10- Elisha Oluoch testified that he is the Assistant Chief of Manyatta Sub location. He stated that on the 1st day of June 2021 he was in his office when one of the village elders by the name Caleb Wareta went in the company of a child and told him that the child had been rescued by a member of the public at a place known as Benga. He stated that they interrogated the girl who told them that her parents were in Nairobi. And that she was living in God Jope with a lady by name Leunida. He stated that the girl told them that they were living together with other children. He stated that they started looking for Leunida and they sent word and Leunida came to their office. He stated that when Leunida went to their office, she admitted that she was living with the child and that the child was her brother's child and got lost when from school. It was his further testimony that the Appellant told them that the father to the child was deceased and she was the one having custody of the child. He stated that the Appellant told them that she was having two other children in her custody. It was her further testimony that the girl explained to them that the parents were in Nairobi and that she knows the school in which she was learning in Nairobi.
He stated that the Appellant went and brought the other two children and that they were a girl and a boy. He stated that the children were in company of the 1st accused person's sister, who told them that the children do not belong to the 1st accused person and that she was living with one of the girls who looked older than the first girl who had been rescued. He stated that the Appellant was mistreating the girls and that is why she took one of the girls to her house. He further stated that the girl refused to go back with the Appellant and he gave the girl to one of the village elder and he handed over the matter to the police for further investigation. He stated that he did not talk to the 1" accused.
PW 11- PC (W) Janet Awuor testified that on the 4th day of July 2021, he accompanied PC Oyugi to God Jope police post. She stated that when they reached God Jope police post they found the Appellant together with a young boy called Freddy. She stated that when they reached the trading Centre the Appellant started calling the husband, that is the 1st accused person. She stated that the Appellant’s husband joined them and they proceeded to Migori Police station. She stated that on the 5th day of July 2021, PC Oyugi requested her to go and rescue a girl and that they proceeded to the place. They found children in the house of Josephine and they took Josephine and Celine to Migori Police Station.
PW 12- Tobias Oyugi testified that he investigated this case. He stated that he commenced investigation on the 2nd day of July 2021 after receiving a letter from the assistant chief of Manyatta sub location. He stated that the letter was delivered by a village elder who was in a company of a minor. He stated that the recorded the statement of the minor and the village elder. Later, he contacted in charge of God Jope police post to connect him with the Appellant and stated that the Appellant was traced and went to God Jope Police Post. He testified that he went to God Jope on the 4th of April 2021 where he found the Appellant and the minor. He stated that he escorted them to Migori police station and on the way, they met with the Appelant's husband that is the 1st accused person. He stated that the 1st accused person had documents showing that they had adopted the minor from Imani Children's Home in Nairobi.
It was his further testimony that when they reached Migori Police Station he interrogated the two accused persons who brought to his attention another minor aged about 15 years who was living with the accused's relative. He stated that on the 5/7/2022 they proceeded to the home of the accused person relative by the name Josephine where they rescued the minor that is S.A. He stated that they took S.A to Migori Police Station. It was his further testimony that while at the police station S.A explained to him that he escaped from the Appellant’s home due to the harsh condition. He stated that S.A explained to him that Josephine is a Niece to the 1st accused person. He stated that S.A further told him that she had been stolen from Nairobi. He further stated that he went to Kibera Children's home where he met with the guardians of S.A that is PW1 and PW2.
He further stated that he also discovered that there was a report about a missing child which had been made by PWI and PW2 at Kilimani Police station viewed OB number 59/23/4/2019. He stated that during the investigation he discovered that the parents of S.A passed on and that she was living with her guardians in Nairobi. He stated that during the investigation he discovered that the 2nd minor’s name was U.N which was changed to M.A when she was taken by the Appellant. He stated that he was able to trace M. A's grandmother who was living in Nairobi who informed him that the father of M.A was in prison while the mother abandoned her. He stated that he went to the school where M.A was learning and he was given the documents to confirm the position. He produced documents in support of their case.
PW 13- Josephine Kagai testified that she lives in God Jope. She stated that S.A was living with the accused person but she is not their Child. she stated that the 1st accused person came with S.A from Nairobi. She stated that at that time, she was living with the mother and grandmother and the 1st accused told her that he has brought S.A to assist her. She stated that U.M was brought by her uncle by the name Nelson who informed her that the Appellant had given him the child. She stated that police officer found S.A in her house and requested her to record a statement.
When the Appellant and her co-accused were placed on defense the 1st Accused person gave unsworn statement and said that he lived in God Jope and he was a farmer. He said that in June 2021 he had gone home for a burial and that on 18th June 2021 2 police officers went to their home and talked to the wife and then left. That the following day the police officer called the wife to go to God Jope and she went with the child. That the wife called and requested him to take to her documents and when he went he found she had been taken to Migori Police Station. That at the station P. C. Oyugi started interrogating him about Celline and he was placed in cells and his wife was also detained.
The 1st Accused said that the following day he saw Celline together with Josephine. He said he did not see Celline in his house and he did not come with her from Nairobi. He said Josephine and her mother wanted to involve him in matter he did not know and wanted to sell his land.
The Appellant gave sworn statement and said that on 4th June 2021 was a Saturday and she went for a funeral in the village. That she heard somebody walking in the maize plantation and the person threatened that they would kill her. That she entered her house as she was scared. That she called her husband and the following day police visited her home and she explained what had happened and she went to God Jope to record her statement
That on 4th June 2021 police officer told her that he had done investigation and found the person who wanted to kill her and so she was wanted to go and record statement.That he went with the Officer to God Jope where she found the Chief who told her she brought the child but she knew nothing about Uzna.
DW3 Zipporah Nyaulu Magodi testified that she lived in Osingo and was a farmer. She said A1 was her brother. She said she knew Uzna but not very wel. She said Celline was her brother’s daughter. She said that Josephine lied in court.
In cross examination DW3 said that Celline used to live with the accused person.
This appeal was canvassed y way of written submissions.
ANALYSIS AND DETERMINATION
This being a first appeal the mandate of this court was clearly stated in the case of Okeno Vs Republic as follows:
Having considered the Appellant’s grounds of appeal, re-evaluated the evidence in the trial court as well as the judgement of the Trial Magistrate and having analyzed the submissions of the rival parties herein the issues that arise for determination are:
(a). Whether the Trial court failed to comply with Article 50 (2) (g) & (h) of the Constitution
(b). Whether the ingredients of the offence trafficking in person and making false statement were proved as required by law.
(c). Whether the sentence was harsh and excessive.
On whether the Trial court failed to comply with Article 50 (2) (g) & (h) of the Constitution The Supreme Court in R v Chengo & 2 Others (Petition No 3 of 2015) where it was held :-
‘’…We must however emphasize the fact that in accordance with the language of the Constitution this particular right is not open ended. It only becomes available if substantial injustice would otherwise result’’.
It was further submitted that from the proceedings it is evident that no substantial injustice was occasioned since the Appellant fully participated in the prosecution hearing, cross examined the witnesses and conducted his defense. That the Appellant did not raise the issue of legal representation before the trial court and cannot claim that the court erred.
Further in the case of Manyeso V Republic (Criminal Appeal No 12 of 2021[2023] KECA 827 the court in dealing with the issue of legal representation stated that:-
‘’…However, in the present appeal, the Appellant did not raise the issue of legal representation either in the trial court or in the High Court, and the record of the trial court shows that the appellant participated in the trial and cross examined witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the Appellants arguments that their rights to fair trial under Article 50(2) (g) and (h) of the Constitution were violated.’’
when the Appellant and his wife were arraigned in court and before the charge was read to them the provisions of Article 50(2) of the Constitution were explained and they said they were ready to proceed. Subsequently the charge was read to them in a language of their choice and they pleaded not guilty. On 28th July 2021 when the Prosecution said it had 5 witnesses the Appellant and his wife said that they were looking for an advocate and the hearing was adjourned to enable them instruct an advocate. In consideration of the explanation given to the Appellant and the indulgence by the court to enable the Appellant instruct an advocate coupled with the active participation of the Appellant in cross examination of prosecution witnesses and evidence tendered in defense this court finds that the rights under Article 50(2) of the Constitution were not infringed in any way or at all.
On whether the ingredients of the offence trafficking in person and making false statement were proved as required by law.
The offence of trafficking in persons is provided for in Section 3(1) of the Act as follows:
“A person commits the offence of trafficking in a person when the person recruits, transports, transfers, harbors or receives another person for the purpose of exploitation by means of;
a) threat or use of force or other forms of coercion;
b) abduction;
c) fraud;
d) deception;
e) abuse of power or of position of vulnerability;
f) giving payments or benefits to obtain the consent of a person having control over another person.
In the case of Muhammad Asif v Republic [2017] eKLR the court explained that:
“The offence of trafficking in persons captures the entire trafficking continuum, and engagement in just one of these trafficking “stages” is sufficient. Therefore, different persons or groups of people may be responsible for different aspects of the trafficking crime. The offence is thus formulated in such a way as to capture the different actors along the trafficking continuum, including those who do not directly exploit the victim’s labor or services, so long as they knew their action was for the purpose of exploiting or facilitating the exploitation of a person.”
The position was further reiterated and reinforced in the case of Benard Onyandi v Republic (2018) eKLR where the court stated as follows:
“If the prosecution established to the satisfaction of the court that the accused was part of the chain and committed only one act in the chain which was aimed at facilitating the commission of the offence, he would be guilty of the offence of trafficking in Persons.”
After a thorough review of the prosecution evidence tendered before the trial court, it is apparent that the key witnesses indicated that they knew the Appellant herein, and identified him as one of the perpetrators of the Offenses under count 1 and Count 2.
The evidence of PW3 and PW4 clearly demonstrate that the Appellant herein and his wife took them from the place they were playing that is Makina and Kibera and further deceived each of them that she was taking them to their rural homes to see their grandmother. Thereafter they were transported to Kakamega and subsequently to God Jope within Migori County where they lived with the Appellant and his wife until PW4 escaped when the Appellant’s wife wanted to beat her and as a result they were rescued.
When the Appellant’s wife was summoned by the Assistant Chief PW10 she claimed that PW4 was her late brother’s child and that she got lost from school. DW3 confirmed that the Appellant herein was her brother and his wife the 2nd Accused in the trial court lived with PW3 S. A who was the brother’s child.
PW1 testified that S. A was her daughter and she got lost on 21st April 2019 and she reported to the Chief and to the Children’s Office within Kibera. She also reported to Kilimani Police Station, Olympic Police Post and South C Police Station and the report was booked. Pamoja Radio FM also circulated the information that PW1’s child was missing. The search for the child took her to KNH and the City Mortuary but she did not trace her. When she received a call from a stranger telling them the child had been cited at Busia they send 5000/= for the child’s transport but it was a fraudulent call and they reported at Kilimani for investigations as to the call and the conman was traced and arrested for many other such frauds and detained in Naivasha Prison.
It was PW1’s further evidence that on 16th July 2021 she received a call from PW12 Tobias Oyugi a police officer attached to Migori Police Station who instructed her to go to the Children’s office in Kibera where she learnt her child had been traced in Migori. That she travelled to Migori where she was able to identify her daughter S. A. who was at a children’s home.
PW2 the father of the child in Count 2 reiterated evidence adduced by his wife PW1 as to how their daughter got lost and the efforts they made to trace her until when they received a call from PW12 a police officer from Migori on 16th July 2021 and they learnt that their child had been traced in Migori living with the Appellant and his wife.
PW1 and PW2 produced a family photograph that they took together with the subject child and the child’s health card that confirmed that indeed she was their child.
PW3 the child to PW1 and 2 testified that the Appellant’s wife who was not known to her before found when she was playing and told her that she was taking her to her rural home. That she did not accept but the Appellant took her into a vehicle and they travelled to Migori.
PW7 and PW8 the Chief and Assistant Chief of North West Kisumu and West Karateng respectively testified that they wrote letters explaining that they knew S.A, who is a total orphan and who was left in custody of her uncle by the name Nelson Otieno Adero, PW2 herein.
In regard to PW4 the child in Count 1 she was also abducted from Makina within Kibera by the Appellant’s wife who emerged and told her to board a vehicle so that she could take her to her grandmother’s home. The Appellant’s wife who was unknown to her found her playing with her friends in Kibera within Nairobi County and cheated her that she was going to buy for her sweets but made her board a vehicle. She stated that she was first taken to Kakamega then to God Jope. It was her further testimony that before she was known as U.M but the Appellant’s wife changed her name to M.A and that while at God Jope, the Appellant’s wife wanted to beat her and she ran away and got lost. She then went to a place called Benga and she was rescued by somebody who took her to the Chief’s office.
PW5 testified that the subject child in Count 1, PW4 was her grandchild who went missing in 2018. That upon discovering she was missing when playing outside, she informed the neighbors and conducted a search but did not find the child. She then made a report at the Mosque as the child was Muslim and further made a report at the Chief’s office. She testified that sometime later she received a call from a police officer and was directed to Kilimani Chief’s office where she was shown a photograph and she identified the child. She then came to a children’s home in Migori and saw the child. PW5 presented a child health card for the child.
PW6 testified that she was a teacher at New Life M.C where PW4 schooled in PP2 in 2018. That January 2019, U. M’s grandmother reported that she was missing. PW6 further testified that in August 2021 she received a call from a police officer who inquired whether one of their pupils had gone missing and she confirmed to the officer that it was U.M and availed the school records in respect of the missing child.
PW9 Ruth Kisa a Village Elder in God Jope was at a baraza when PW4 was handed over to her after having been rescued and she was asked to interrogate her in mother tongue as she was speaking Maragoli language. The child told her that she had been stolen from Nairobi by a lady who cheated her she was going to buy for her sweets but put her in a vehicle that drove away. The Chief instructed her to take child to her home pending investigations. PW9 said that when the Appellant went to claim the child from the Assistant Chief she said the child was hers and when the Assistant Chief spoke to the Appellant’s husband he confirmed they got the children from Nairobi and told the Assistant Chief to take the girl and leave the boy. The Assistant Chief PW10 and PW9 reported the matter to police at Migori and recorded their statements as to how they came to have custody of PW4.
PW12 Tobias Oyugi investigated the offence herein when the Assistant Chef of Manyatta wrote a letter which was delivered by a village elder who was in company of a child who had escaped from the Appellant’s home because of being mistreated. He instructed the Officer In Charge God Jope Police Post to summon the Appellant and when he met her she was in company of another minor whom the Appellant’s husband produced documents alleging they had legally adopted him. That on interrogation of the Appellant and her husband, PW4 was established to have been going to school in PW6’s school and that she was staying with her grandmother PW5 as her father was at Kamiti Prison. PW12 produced exhibits in relation to loss of the children and their identity as Exhibits P1 to 13.
Arising from the analysis above it is clear that the Appellant used deception to trick and take PW4 from Nairobi County and transported her to God Jope area within Migori County without the consent and permission of her guardian PW5 herein.
In consideration of the
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