Hamisi Mohamed VS ODPP Hamisi Mohamed VS ODPP

(From Original Conviction and Sentence of Honourable R. Amwayi, SRM delivered on the 26^th January, 2023 at Mombasa delivered on 26^th January, 2023 in Mombasa S. O. Number 19 of 2018, and the Sentencing by Honourable R. Orora SPM)

Introduction

The Appellant was charged before the Court with the offence of:-

CHARGE: Defilement contrary to section 8(1) as read with (2) of the Sexual Offences Act no. 3 of 2006. Particulars of the same being that on the 12^th day of July 2016 at Mtongwe area in Likoni sub-county within Mombasa county, unlawfully and intentionally caused his penis to penetrate the vagina of MWANAHAMISI MOHAMED, a child aged 13 years.

ALTERNATIVE COUNT: Committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act no. 3 of 2006. On 12^th day of July 2016 at Mtongwe area in Likoni Sub County within Mombasa County, intentionally and unlawfully caused his penis to touch the vagina of M.M, a girl aged 13 years old.

The Appellant was charged, he denied the charges and the trial court put down the case for hearing. The prosecution called six (6) witnesses and at the close of the prosecution’s case, the trial court found the Appellant with a case to answer; put him to his defence which defence he never participated, convicted and sentenced twenty (20) years imprisonment. The Appellant filed his memorandum of appeal dated 14^th November, 2023 on the following grounds:
THAT the Learned Trial magistrate erred in Law and in fact in fact by ordering that the Prosecution Case and Witnesses thereof testify in the absence of the Appellant.
THAT the Learned Trial magistrate erred in Law and in fact in fact by making orders that denied the Appellant his Legal and Constitutional to participate in the hearing of his Case and also denied the Appellant to cross-examine the Prosecution Witnesses either by himself or through an Advocate duly appointed for the Appellant.
THAT the Learned Trial magistrate erred in Law and in fact in fact proceeding with the matter in utter breach of the Appellant’s Legal and Constitutional rights to a fair trial.
THAT misdirected herself in making a decision which was tantamount to establishing the guilt of the Appellant even before the trial was done in gross breach of Article 50 of the Constitution of Kenya, 2010 that one must be presumed innocent before trial.
THAT the Learned trial Magistrate erred in law and in fact by failing to establish the mental capacity of the Appellant to stand trial and/or satisfying herself that the Appellant had such mental capacity, in the face of the proceedings before her, and before ordering the said proceedings to continue.
THAT the Learned Trial Magistrate erred in law and in fact in conduction proceedings which, on the face value, were a gross miscarriage of justice to the Appellant.
THAT the Learned Trial Magistrate erred in law and in fact in taking proceedings geared towards ensuring that the Appellant will be found guilty and convicted of the offence, without being accorded an opportunity to defend himself, either personally or even through Counsel.
THAT the entire proceedings herein were a gross miscarriage of justice to the Appellant.
THAT the Learned Trial Magistrate, by ordering that the Prosecution Witnesses testify in the absence of the Appellant, denied him an opportunity to cross-examine the said Witnesses, and effectively, the said action was in breach of the Appellant's Constitutional and Fundamental rights to a fair trial.
For the reasons advanced in his Petition of Appeal, the Appellant sought for the following orders:-
THAT this Appeal be allowed.
THAT an order that all the Proceedings, the Conviction and Sentencing of the Appellant in Mombasa SO. No. 19 of 2018, Republic vs Hamisi Mohamed, be set aside in their entirety.
THAT this Honourable Court do find and declare that the entire proceedings herein were tantamount to a mistrial and thus set aside all the proceedings, Judgment and Sentencing of the Appellant in their entirety.
THAT the Appellant be set at liberty unconditionally.
THAT alternatively, this Honourable Court declares that the trial before the Subordinate Court was a mistrial and effectively the case against the Appellant be heard afresh and before any Magistrate, other than the Trial Magistrate.
THAT this Appeal be allowed with costs to the Appellant.

The Prosecution’s case

The prosecution called six (6) witnesses in support of its case. The complainant testified as PW 1 M.M the complainant testified that she is a pupil at Mtongwe Special unit. It was her testimony that she was going to see her mother when the accused called her to his house. The accused was outside his house. She went to his house. The accused then spread a lesso on the floor. He then did bad manners to her. It was her testimony that the accused undressed her and he unzipped his trouser then he had sexual intercourse with her by penetrating her vagina using his penis. She stated that the incident took place inside accused person’s house and that there was nobody else in the house apart from herself and the accused person. She then screamed and called for help. People then went to rescue her. She then told her grandmother and the neighbour that the accused had defiled her. She was taken to Coast General Hospital where she was examined. Later the accused was arrested. She identified the accused person in court as the perpetrator.
PW2 Mwanajuma Mbaruk testified that she is a child living with disability volunteer within Mtongwe area. It was her testimony that on 14^th July, 2016, she was attending a funeral in Mtongwe when at about 1.00p.m, she was called by Mwanakasi. She went to her house and the complainant then told her to assist her. She inquired what had happened and she was told that the child had been defiled by the accused person herein. They then reported the matter to the chief and advised them to take the complainant to hospital. She was taken to hospital and the doctor confirmed that there was proof of penetration of both the vagina and the anus.
PW3 Fatuma Abdallah, testified that the complainant is her niece and that on 12^th July, 2016, she received information from her sister that the complainant had not spent the night at home. Later the complainant was seen by her mother picking papers outside the accused’s house. She asked her what she was doing and the child then ran to school. In the evening, it was her testimony that she called the complainant and asked her where she had spent the night. They interrogated her and she told them that she had spent the night in accused's house and that the accused person defiled her. She then took her to hospital for examination and age assessment. The doctor then confirmed that there was proof of penetration.
PW4 Police Constable Beth Kagendo, testified that she is from Inuka testified that she is the investigating officer in this matter. It was her testimony that on 15^th July, 2016, she was at work when the complainant was taken to the station and a report made that she had been defiled by the accused person herein. She recorded their statements and reoffered them to Coast General Hospital for medical examination. She later issued her with P3 form which was then duly filled and the doctor confirmed that indeed there was defilement. She then charged the accused with offence before court as the complainant was 13 years old.
PW5 Loice Mukami Njiru testified that she is in charge of GBV at Coast General Hospital and that she a clinical officer. She stated that on 15^th July 2016, she filled a Post Rape Care form in respect of the complainant herein who was aged 13 years old who went to the hospital with history of having been defiled by a person well known to her. On examination, there were visible healed marks as a result of caning by genitalia, there were healed tears on the vaginal opening. There were no injuries on anal area. Several tests were done including HIV and they were all negative. She produced the Post Rape Care Form and the P3 form as exhibits. It was he testimony that as per the P3 form, on examination of the complainant’s genitalia, her hymen was broken and she had healed tears.
PW6 Police Constable Bushman Abdul Rahaman from Inuka Police Station testified that-he is the current investigating officer and that he took over this matter from PC Beth Kagendo was transferred. As at the time he took over, it was his testimony that the file was complete and several witnesses had testified. It was his testimony that the complainant was taken to Coast General Hospital for age assessment and the same indicates that the complainant is aged 13 years old. He produced the age assessment report as an exhibit in this case.

The Defence case

The defence did not call any witness.

Analysis and Determination

It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. This is a first appeal and this court has a duty to analyze and evaluate the evidence which was adduced before the trial court and come up with its own independent finding. The appellant has a legitimate expectation that the evidence will be subjected to an exhaustive evaluation by the appellate court and the appellate court’s own independent finding. This principle has been considered in various decisions of this court and those of the Court of Appeal.
The leading authority on the subject is Okeno - Versus - Republic ( 1972) EA 32. In this case the court stated-;

“The duty of the 1^st appellate court is to analyze, reevaluate the evidence which was before the trial court and itself come up with its own conclusion on the evidence. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified and must leave room for that. The Court of Appeal in the case of David Njuguna Wairimu Versus Republic (2010) while citing with approval the case of Okeno Versus Republic Supra, stated as follows:-

The duty of the first appellate court is to analyze, re-evaluate the evidence which was before the trial court and itself come up with its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellant court may depending on the fact and the circumstances of the case, come to the same conclusion as those of the lower court. It may reverse those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

The court of appeal further stated that – “ an appellant on a 1^st appeal is entitled to expect the evidence as whole to be subjected to a fresh exhaustive examination (Padya Versus Republic 1975 EA 336) and that the appellate court’s own decision on the evidence. the appellate court must itself weigh the conflicting evidence and draw its own conclusions.

In doing so it must make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peter’s Versus Sunday Post 1978 E.A 424”.

In the case of Gabriel Kamau Njoroge – Versus - Republic, Criminal Appeal No.149 of 1986 [1987] eKLR Court of Appeal in Nairobi, Platt & Apaloo, JA. A. and Masime Ag. J.A reiterated the duty of a first appellate court as follows:-

“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court.”

It is, therefore, the duty of this court in this case to re-evaluate the evidence adduced by the prosecution in support of the charges and by the defence, and to make its conclusion on whether the commission of the offence by the appellant in the main charge of assault, with respect to the complainant, were proved and whether the appellant was responsible.
Having reviewed the trial Record, the grounds of appeal and the parties’ submissions, the main issues for determination are as follows: -
Whether the Appellant has proved the grounds of appeal?

Issue a. Whether the Appellant has proved the grounds of appeal.

The Appellant has contended that the Learned Trial magistrate erred in Law and in fact in fact by ordering that the Prosecution Case and Witnesses thereof testify in the absence of the Appellant. In the Kenyan Jurisprudence, the right to fair trial is placed at a much higher pedestal and it includes the right by an accused person to challenge the evidence presented against him or her.
The court being a custodian of the law, should however ensure the constitutional safeguards are upheld all the time and jealously protected so that the accused is accorded true investigations and fairness in compliance with the basic rule of law. That is a fundamental canon of our criminal jurisprudence and quite in conformity with the constitutional mandate contained under Article 50 of the Constitution of Kenya, 2010. In this case it is alleged that the right that was violated was the right to fair trial under Article 50(2) of the Constitution. The said Article 50(2)(k) and (p) provides that every accused person has the right to a fair trial, which includes the right to adduce and challenge evidence; and to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing. That right according to Article 25(c) of the Constitution cannot be limited. That was the position adopted by the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa which provides that:

“The right to a fair trial is a fundamental right, the non-observance of which undermines all other human rights. Therefore the right to a fair trial is a non-derogable right, especially as the African Charter does not expressly allow for any derogations from the rights it enshrines.”

On the issue of the right to fair trial, the Supreme Court of India in the case of “Natasha Singh – Versus - CBI {2013} 5 SCC 741” expressed itself as follows:-

“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.”

A miscarriage of justice was discussed by the same Court in the case of “Zahira Habibullah Sheikh & Another – Versus - State of Gujarat & Others AIR 2006 SC 1367” where it opined that:-

“It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted…Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, the condemnation should be rendered only after the trial in which the hearing is a real one, not a sham or mere farce and pretence….The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.”

At page 13 on the record of appeal, the Court observed the Conduct of the Appellant stating that he had decided to walk out from the proceedings with Court yelling and become very violent which prompted the prosecutor to make an application an application under Articles 50(2)(f) of the Constitution that the case should continue without the presence of the appellant given his conduct. The Trial court allowed the application and the presence of the Appellant was dispensed with.
From record of appeal at page 15 to 38, whenever the Appellant was in court he would rain abuses on the Trial Magistrate and sometimes walk way. From page 39 of the record, the Appellant refused to attend court. Article 50(2)(f) of the Constitution empowers this court to proceed with the matter in absence of the Accused person. In the case of Regina – Versus – Jones (2003) I ACI, emphasis was made that an Accused person’s right to be present during trial can be vitiated by his own conduct especially willingly absenting oneself from trial.
From the reading of statutory provisions, in particular our Criminal Procedure Code, it is clear that the presence of the Accused can be dispensed with in certain instances. For example, section 99(1) of the Criminal procedure Code provides that;

‘Subject to the following provisions of this section, whenever a magistrate issues a summons in respect of an offence other than a felony, he may if he sees reason to do so, and shall when the offence with which the accused is charged is punishable only by fine, or only by fine or imprisonment not exceeding three months, or by fine and such imprisonment, dispense with the personal attendance of the accused, if the accused pleads guilty in writing or appears by an advocate.’

The second instance is under section 206(1) and (2) of the Criminal Procedure Code. Here the court is empowered to proceed with the trial if the Accused does not appear at the hearing or further hearing in a case where he is not charged with a felony. In fact, the law says the court may proceed as if the Accused was present. It states that;

(1) If, at the time or place to which the hearing or further hearing is adjourned, the accused person does not appear before the court which made the order of adjournment, the court may, unless the accused person is charged with felony, proceed with the hearing or further hearing as if the accused were present, and if the complainant does not appear the court may dismiss the charge with or without costs.

(2) If the court convicts the accused person in his absence, it may set aside the conviction upon being satisfied that his absence was from causes over which he had no control, and that he had a probable defence on the merits.

Having analyzed the record and the proceeding as from page 1 to 59 of the record of appeal, I find no fault in the Trial Court magistrate taking evidence in the absence of the Appellant. Therefore ground 1, 2, 3, 4, 6and 9 fail for this reason.
On the issue of whether the Trial court failed to establish the mental capacity of the Appellant to stand trial. The requirement to subject a suspect to mental assessment before plea is a matter of practice than law. The rationale is founded on statutory law; Section 11 of the Penal Code provides that there is a presumption of sanity as regards all persons. The mental assessment of the accused person is important pursuant to the provisions of sections 11 and 12 of the Penal Code, save for the fact that it was required in evidence, where the need arose.
The justifications for the requirement that the accused be fit to stand trial may be divided into four:
a recognition that it was fundamentally unfair to try an unfit accused;
a recognition that it was inhumane to subject an unfit accused to trial and punishment;
a perception that a trial of an unfit accused was comparable to the trial of an accused in absentia
a procedure the legal system repudiated and a concern to avoid diminution of the public’s respect for the dignity of the criminal justice process if unfit accused were subjected to trial and punishment.
I have taken note that the Appellant has not attached any document or evidence to prove that he suffered from mental incapacity as he alleged. This court is satisfied that the accused person was in good mental capacity as he understood the charges he was facing. Ground 5 on the Memorandum of appeal fails.
Further the Court finds that it is necessary for the court to deal with the appellant’s allegations of breach of his rights to fair trial guaranteed under Article 50(2) (g) and (m) of the Constitution. The said Article provides as follows:-

“50(2). Every person has the right to a fair trial which includes the right….

(g) to chose and be represented by an advocate, and to be informed of this right promptly.

J. Mrima dealt with a similar issue in Chacha Mwita (supra) where he referred to his earlier decision in “Migori Criminal Appeal 44 of 2019 N. M. T alias Aunty – Versus – Republic”. I will quote from the said judgment where the judge exhaustively dealt with the matter on what it means to be informed of the right to choose an advocate, at what stage the accused should be informed of the right and when supposed to inform the accused of that right. The Judge stated as follows:-

14. That being the record the question which now begs an answer is what entails the right as provided in Article 50(2)(g) of the Constitution. The reading of the said provision avails that an accused person must be promptly informed of the right to choose to be represented by an Advocate. Since the Constitution does not define the word ‘choose’ I will make reference to the Tenth Edition of the Black’s Law Dictionary on how the said word is defined. The said Dictionary does not expressly define the word ‘choose or choice’ but refers one to ‘Freedom of Choice’ (See page 294 thereof). At page 779 the Dictionary defines ‘freedom’ as follows: -

i. The quality, state or condition of being free or liberated esp. the right to do what one wants without being controlled or restricted by anyone.

15. The Dictionary further defines ‘Freedom of Choice’ as ‘the liberty embodied in the exercise of one’s right’. The Second Edition of the Law Dictionary has the following to say about the ‘Freedom of Choice’: -

Unfettered right to do what one wants, when one wants as one wants, except where it infringes or prevents another from doing what that one wants, and do so on. Also excluded is doing something that would harm one’s self or another.

16. To choose hence connotes options and discretion. When one is called upon to make a choice it must mean that the person has been availed with options upon which he/she may exercise his/her discretion. The right to choose an Advocate of one’s choice as embodied in Article 50(2)(g) of the Constitution therefore means that for an accused person to exercise that right he/she must be certainly told of the right to legal representation by an Advocate of one’s choice and any other attendant information be availed accordingly to be able to make a choice on whether he/she requires any legal representation.

17. The right under Article 50(2)(g) of the Constitution must be distinguished from the right under Article 50(2)(h) of the Constitution given that in many instances the rights under Article 50(2)(g) and (h) of the Constitution are dealt with contemporaneously. The right under Article 50(2)(h) of the Constitution on one hand places a duty on the State to assign an Advocate to an accused person at its own expense if substantial injustice will otherwise result. The right under Article 50(2)(g) of the Constitution on the other hand deals with informing an accused person of his/her right to be represented by an Advocate of one’s choice further to giving necessary information to the accused person and calling him/her to make a choice on his/her legal representation. Put differently, the right under Article 50(2)(h) of the Constitution deals with instances where the State must assign an Advocate to an accused person. Suffice to say that the right to a fair trial under Article 50 of the Constitution is among those rights that cannot be limited in any way whatsoever courtesy of Article 25 of the Constitution.

18. Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett vs. Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: -

It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.

19. In South Africa in Fraser vs. ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the Constitutional Court had the following to say: -

Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation….

20. In Kenya, the Supreme Court in Petition No. 5 of 2015 Republic -vs- Karisa Chengo & 2 Others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows: -

the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more.

21. Apart from the Constitution and the foregone judicial decisions there is The International Convention on Civil and Political Rights (ICCPR) which Kenya is a party after adopting it on 16th December 1966. Article 14(3)(d) thereof entitles an accused person of the following rights: -

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

22. Having settled the need to inform an accused person of the right to legal representation under Article 50(2)(g) of the Constitution, the next limb of consideration must be who is under such a duty to inform the accused person of the right. The answer seems to be in one of our legislations. The Legal Aid Act No. 6 of 2016 (hereinafter referred to as ‘the Act’) is an Act of Parliament to give effect to Articles 19(2), 48, 50(2)(g) and (h) of the Constitution. Section 43(1)(a) of the Act which provides one of the duties of the court as follows: -

43.(1) A court before which an unrepresented accused person is presented shall-

(a) promptly inform the accused of his or her right to legal representation;

23. Still on the said subject, a South African Court in S -vs- Daniels & Another 1983(3) 275(A) at 299 G-H, while emphasizing that the duty to inform the accused person squarely lies on the court stated that: -

…. the accused's rights were explained to him, must appear from the record, in such a manner as, and with sufficient particularity, to enable a judgment to be made as to the adequacy of the explanation

24. Further, another South African Court in Mphukwa v S (CA&R 360/2004) [2012] ZAECGHC 6 (16 February 2012), made reference to the comments of Goldstone J. in S v Radebe; S v Mbonani 1988(1) SA 191 (TPD), a decision which was quoted with approval by the Supreme Court of Appeal of South Africa in Ramaite –vs- The State (958/13) [2014] (26 September 2014). My Lordship Goldstone, J. stated as follows: -

…a general duty on the part of judicial officers to ensure that unrepresented accused fully understand their rights and the recognition that in the absence of such understanding a fair and just trial may not take place.

If there is a duty upon judicial officers to inform unrepresented accused of their legal rights, then I can conceive of no reason why the right to legal representation should not be one of them. Especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused, such an accused should be informed of the seriousness of the charge and of the possible consequences of a conviction. Again, depending upon the complexity of the charge, or of the legal rules relating thereto, and the seriousness thereof, an accused should not only be told of this right but he should be encouraged to exercise it. He should also be informed in appropriate cases that he is entitled to apply to the Legal Aid Board for assistance. A failure on the part of a judicial officer to do this, having regard to the circumstances of a particular case, may result in an unfair trial in which there may well be a complete failure of justice ...

25. In Kenya, Nyakundi, J. in Joseph Kiema Philip vs. Republic (2019) eKLR added his voice on the subject in the following manner: -

……it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate, one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced……

26. From the foregone I believe I have said enough regarding the duty of a court to inform an accused person of the right under Article 50(2)(g) of the Constitution.

27. That now leads to the other question as to what point in time should the right be explained to the accused person.

28. Article 50(2)(g) of the Constitution dictates that the accused person must be informed of the right to legal representation promptly. In rightly answering the question Nyakundi, J. in Joseph Kiema Philip (supra) stated as follows: -

…. The earliest opportunity therefore should be at the time of plea taking; the first appearance before plea is taken or at the commencement of the proceedings, that is at the first hearings… (emphasis added).

29. I must emphasize that the accused person must be informed of this right immediately he/she appears before a court on the first appearance regardless of whether the plea would be taken at that point in time or later. Of importance is the emphasis that since the court speaks through the record then the record must be as clear as possible and ought to capture the entire conversation between the court and an accused person. A court should therefore not be in a hurry to take the plea before ascertaining that it has fully complied with Article 50(2)(g) of the Constitution among others as required. Circumstances calling, a court should boldly postpone the plea-taking until satisfied that the court has fully complied with the law.

30. In this case the trial court explained the right to representation to the Appellant at defence stage. That was too far late in the day.

31. Having dealt with the various limbs of the right under Article 50(2)(g) of the Constitution and in view of the status of the record as espoused hereinabove I must return the verdict that the trial court failed to comply with the dictates of Article 50(2)(g) of the Constitution. The Appellant was hence not accorded a fair trial in line with Article 50(2)(g) of the Constitution.

32. ………………

33. …………..

34. Having said so, the inevitable question that now follows is: What is the effect of the derogation of the right under Article 50(2)(g) of the Constitution in the circumstances of this case?

35. There are two schools of thought on the issue. The first school fronts the position that once the derogation of the right is confirmed then the entire proceedings, judgment and sentence before the trial court are vitiated and stand null and void ab initio. The other school fronts the position that failure to inform an accused person of his/her right to legal representation does not necessarily have the effect of vitiating the proceedings in a criminal trial unless it is proved that substantial prejudice to the accused person or a miscarriage of justice was occasioned.

36. In answering the question, I will consider the wording of the Article 50(2)(g) and (h) of the Constitution. From the wording of Article 50(2)(h) the right therein is not absolute as the court must first satisfy itself that substantial injustice may result before it enforces the right. However, that is not the position under Article 50(2)(g) where the right is not qualified. Since that is what the People of Kenya wanted and so settled it in the Constitution then it remains the unwavering duty of this Court to enforce the provisions of the Constitution.

37. I therefore fully associate myself with the school which fronts the position that upon proof of derogation of the right under Article 50(2)(g) of the Constitution then the trial is rendered a nullity. Qualifying the provisions of Article 50(2)(g) of the Constitution will be tantamount to amending the Constitution through a back door, an act which this Court must frown at. It may appear like the position is harsh and is likely to fan multiple applications and appeals, but I must say that unless Courts, as custodians of justice and the Rule of Law, are prepared to enforce the Constitution as it is the intentions of the People of Kenya as expressed in the Constitution will never be realized. I therefore find and hold that the entire proceedings, judgment and sentence before the trial court are a nullity and cannot stand in law.

It is a requirement for the court to inform an accused person of the right to legal representation. But, failure to comply by the court cannot prevent a court from proceeding with the matter as provided by the procedure to be adopted by the court. The contention would be if an injustice would result. In the case of “Karisa Chengo & 2 Others – Versus - Republic (2015) eKLR” the Court of Appeal stated that:-

“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arise in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”

Having perused the record, it is clear that from the onset up to the conclusion of the trial the appellant was not represented by counsel. There is no evidence of him requesting the court for legal representation. Maybe he did not feel prejudiced by lack of representation. Article 50(1) of the Constitution does not in my view make appointment of counsel for an accused person at State expense automatic. If that were so, then such advocates would be appointed even before plea to appear for an accused person regardless of whether an accused person was in need of free legal aid or not. It is imperative for an accused person who feels he needs free legal representation to place such an application before the trial court for consideration.
It therefore behooved the Appellant to establish that he was prejudiced as a result of a substantial justice if any. The appellant herein understood the charges that were presented by the prosecution. He chose to be uncooperative with the Court and the prosecution and from the record of the trial Court difficult and very abuse and disrespectful to the Trial Court and the public at large. Consequently, I find that the Appellant was well informed of his legal right to representation.
On whether the trial in the Trial Court was conducted to result to a miscarriage of justice upon the Appellant and whether the proceedings were geared towards ensuring that the Appellant will be found guilty and convicted of the offence, without being accorded an opportunity to defend himself, either personally or even through Counsel. This requires the Court to analyze the evidence by the Prosecution with regards to page 14 and 40 of the record of appeal, the Respondent’s case was that the Complainant was going to see her mother when the accused person to his house where he spread a lesso on the floor and defiled her. The Respondent herein called 6 witnesses who corroborated the testimony of the Complainant.
The Appellant was charged with defilement under Sections 8(1) and 8(2) of the Sexual Offences Act No. 3 of 2006 which provides that:-

“8(1). A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.

8(2). A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.

As provided in Charles Wamukoya Karani – Versus - Republic Criminal Appeal No.72 of 2013, for the offence of defilement to be established, three ingredients must be proved beyond any reasonable doubt; proof of penetration, complainant’s age and identification of the perpetrator. On the age of the Complainant it was established by the trial court that the complainant as at the time of offence was aged 13 years old. The age of the child was therefore proved by the Respondent.
With respect to the second ingredient, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. In the case of EE – Versus - Republic (2015) eKLR, the Court stated that:-

“An important ingredient of the offence of defilement is that there must have been penetration. Penetration or act of sexual intercourse has therefore to be proved to sustain a charge of defilement”.

As for penetration the complainant testified that the accused person led her to his house and removed her panty, and proceeded to insert his penis into her vagina. Her aunt testified that the child narrated how the accused had sexual intercourse with her in his house. The child testified how the accused took her to his house and had sexual intercourse with her. The child was taken to hospital where she examined, treated and P3 form and PRC forms filled.
The PRC form showed that the outer genitalia was normal, the vagina had tears, the anus was normal and the hymen was absent. The doctor who attended to her stated in her testimony that the absence of hymen meant there was penetration. The child indicated that the accused person penetrated her vagina using his penis. There was no other evidence as to what might have caused the absence of the hymen and tears on the vaginal opening apart from the act of sexual intercourse. The Respondent therefore proved that there was penetration of the complainant's genitalia.
On the issue of identification, in her testimony in the Trial Court, the Complainant stated that the Appellant before court was the person who had sexual intercourse with her in the house. The Appellant was well known to her and that he was the one who called her to his house. She vividly recalled what happened on the fateful day and no doubt, she identified the perpetrator in court. There was no grudge or feuds between the Appellant and the complainant and therefore no possibility of the complainant framing and implicating him.
The trial court was satisfied that the prosecution had established a prima facie case against the accused person and the accused person was called upon by the court to make his Defence under Section 211 of the Criminal Procedure Code. He opted not to testify nor call any witness.

Conclusion and Disposition

In the final analysis, I have come to the finding that the charge against the Appellant was proved beyond reasonable doubt. I confirm both the conviction and sentence. The appeal is consequently dismissed.

IT IS SO ORDERED ACORDINGLY.

JUDGMENT DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……17TH.…………DAY OF ……JANUARY………………….……., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. MAUREEN Court Assistant;

MR NGIRI State Counsel

Applicant