(Being an Appeal against conviction and sentence in Chief Magistrate’s Courts at Mombasa S.O No. E081 of 2021 delivered on 16/10/2024 by Hon. G.O. OLLIMO (SRM.)
The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.
Particulars of the offence are that the appellant on diverse dates between 1 st January, 2021 and 10 th day of June, 2021 at Approved area, in Likoni Sub-County, within Mombasa County, unlawfully and intentionally caused his penis to penetrate the vagina of U.S.S a child aged 8 years.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on diverse dates between 1 st January, 2021 and 10 th day of June, 2021 at Approved area, in Likoni Sub-County, within Mombasa County, he intentionally and unlawfully did an indecent act by touching the vagina of U.S.S. a child aged 8 years with his penis.
The prosecution called five (5) witnesses in surmounting their case, after which the trial court ruled that the appellant had a case to answer and was thereby put in his defence . Equally, the appellant called six (6) witnesses and after full trial he was found guilty of the main count and the alternative charge deemed as spent and was thereby sentenced to thirty (30) years imprisonment.
Being aggrieved by the conviction and sentence of the trial court, the appellant preferred the present appeal. He based it on grounds that the learned trial magistrate erred in matters of both law and fact by failing to comply with the law relating to evidence of minors thus making a finding that the complainant was a liar. He faulted the learned trial magistrate in finding that there had been positive identification or recognition of the appellant despite evidence to the contrary.
Further, that the learned trial magistrate erred in law and fact in failing to comply with law relating to taking over part heard matters. Consequently, the learned magistrate erred in law and fact for arriving at a conviction against the weight of evidence, thus issuing a manifestly harsh and excessive sentence.
The appeal was canvassed by way of written submissions.
Written submissions
The appellant raised several procedural issues regarding how the trial was conducted.
First, that the victim was represented by a counsel watching brief, who participated in the proceedings, but no formal application was made by the victim/representative for their participation in trial. The applicant cited the authority in Joseph Lendrik Waswa - VS- Republic (SCOK Petition No. 23 of 2019).
Secondly, it is contended that the voire dire examination was improperly conducted as the trial court inquired of the child’s religion and religious beliefs other than establishing whether the child understood the meaning and nature of an oath.
Further, the appellant argues that the trial court breached his right to fair trial by failing to inform him promptly at the initial stages of the trial contrary to Article 50 (2) of the COK.
In addition, that the appellant contends that his right to recall witnesses once the trial court proceeded on transfer and a succeeding learned magistrate came, was denied contrary to Sec 200 of the CPC.
Lastly, that, the critical ingredients of the offence, were not established against him as there was no corroborative evidence to support the prosecution’s case, being that on identification, the complainant did not positively identify him in the identification parade.
The respondent opposing the appeal submitted that contrary to the appellant’s arguments the voire dire examination was curated to specifically determine whether the minor understood the meaning of an oath, and thereto placed reliance on the C.O.A decision in D.W.M vs Republic (2016)eklr.
As to the court’s compliance with Sec 200 of the CPC, the appellant personally ceded that he did not wish for the matter to start afresh. Further, the succeeding court made its Ruling after all parties stated their arguments. Further, the appellant had personally fully cross-examined the minor.
On the ingredient of identification of the appellant. It was argued that the minor testified that the appellant was known to her as ‘Ustadh’ who had severally defiled her in his home . That, the need for an identification parade was inconsequential. In addition, the minor had identified the appellant’s house prior to his arrest. However, the minor as stated was fearful having received death threats from the appellant, therefore she failed to identify him out of fear for her life during the identification parade, which reasons are justifiable. Reliance was placed on the authority in Republic vs Valentine Maloba & 2 others (2021)eklr.
It was the respondent’s submission that the minor gave a clear recollection of her ordeal as corroborated by the medical evidence on record sustaining the conviction.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Several preliminary issues were raised by the appellant in so far as the conduct of trial is concerned, which he argues impeded his right to fair trial. This court shall sequentially dispense with the same as follows.
Whether the appellant’s right to fair trial was infringed by the trial court’s failure to inform him of his right to legal representation in the initial stages of the proceedings?
Article 50 of the Constitution provides for the right of an accused person as follows: -
50.Fair hearing
(2) Every accused person has the right to a fair trial, which includes the right—
g.to choose, and be represented by, an advocate, and to be informed of this right promptly;
h.to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;”
This Court’s understanding of the provision is that the right of an accused person to be assigned an advocate is not absolute and is only a requirement where substantial injustice may occur in the absence of such representation.
In Karisa Chengo & 2 Others vs. R, Cr. Nos. 44, 45 & 76 of 2014 , the court also stated: -
“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 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 arises 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.”
From the above discourse, it follows that it is not mandatory that an accused is offered legal representation at state expense unless he will otherwise suffer substantial injustice. However, in the instant case, the trial court did not inform the Appellant of his right to legal representation, the omission was not incurable nor prejudicial to the appellant. I do note from the court record that the appellant understood the charges brought against him and he was able to cross-examine the accused critically. Needless to add, save for the initial proceedings where PW1 testified and was ably cross-examined by the appellant, from then on, the appellant had the benefit of legal representation all through.
I further note that the appellant was not charged with a capital offence that carried a death penalty to warrant the mandatory need for for legal representation. It then follows that the trial was conducted in a fair manner with no prejudice occasioned to the appellant due to lack of legal representation. In Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) the court similarly held that:
“In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant’s case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses. It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer any injustice due to lack of legal representation.”
Whether the trial proceedings are a nullity by failure the victim’s counsel watching brief to formally make an application for participation in trial?
The appellant argues that the victim/counsel watching brief participation in the proceedings, was not preceded by a formal application at the trial court, which renders the entire proceedings as a nullity.
The right to fair hearing is provided for under Article 50(1) of the Constitution and the attendant rights of an accused person are set out in Article 50(2) of the Constitution .
The Constitution also recognizes victims of offences under Article 50 (9), where to give its effect the Victims Protection Act was enacted to realize the constitutional underpinning.
Section 2 of the VPA defines a victim as ‘any natural person who suffers injury, loss or damage as a consequence of an offence’. The objects and purpose of the VPA as stipulated under Section 3 is to recognize and give effect to the rights of victims of crime. Section 4 sets out the general principles that guide the Court in dealing with a question of the rights and welfare of a victim. Section 4(2)(b) provides that a Court must ensure that ‘every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken’ .
Pertinent to the instant issue the Supreme Court in Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) succinctly listed the guiding principles to assist trial Courts when considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation.
The peculiarity of the instant matter is that no application was formally made for furtherance of the victim or her counsel’s participation in the trial court proceedings. This court has considered the trial court’s proceedings, and it is apparent that the trial court impliedly allowed the victim/counsel’s participation without expressly curtailing it.
As to the extent of the victim’s counsel watching brief’s participation, this court notes that their active involvement as per the proceedings was only limited to three(3) isolated instances, the cross-examination of the victim (PW1), the call by the appellant to have the victim recalled for cross-examination three (3) years after her testimony and/or the restarting of the trial de novo which they argued would further traumatize the victim, and the call by the appellant to adjourn a subsequent defence hearing to call more witnesses; seven (7) other than the initially set of five (5).
The apposite question is whether the failure by the victim and her counsel to formally apply for their participation in trial, to the extent particularized above, rendered the entire proceedings a nullity. This court answers by a resounding ‘NO’.
From the onset, it should not be construed that this court is in a misguided attempt to reinvent the wheel as set by the the Supreme Court in Waswa v Republic(Supra). On the contrary, this court cedes guidance from the learned bench in the same decision where they held thus;
66.These constitutional provisions read together with the VPA affirm that victims have rights in the Kenya criminal justice system. These rights are stipulated in section 9 of the VPA . Also, Article 27 of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Both the Constitution and the VPA seek to ensure the fairness of justice procedures applied to both the victims and accused particularly on the right to a fair hearing, timeliness, respect, dignity, and neutrality.
…
67.The Trial Court being an impartial entity that oversees the progress of a case, has the ultimate function of determining the accused's guilt or innocence. Its aim is to establish the truth. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. Thus, the rights of the accused cannot be considered in isolation without regard to those of the victim. Victims too have a legitimate interest in the Court’s exercise of its jurisdiction. The Criminal Justice system should cultivate a process that inspires the trust of both the victim and the accused.
68.Considering the rights of the accused, the victim, and society as a whole in a criminal trial is not only fair, pragmatic but also constitutionally viable.
…
70.We agree with these sentiments. The trial Judge must protect the rights of all parties involved in criminal proceedings. There is a public interest in ensuring that trials are fair. This interest can be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused should be secured and fulfilled. So too the public interest. The rights of victims, properly understood, do not undermine those of the accused or the public interest. The true interrelationship of the three is complementary.
71.Therefore, we fail to see how the ‘participatory rights of the victim’ violate the ‘fair trial’ rights of the accused. A victim can participate in a trial in person or via a legal representative. So then, who determines the manner and extent of a victim’s participation in a trial?
It is not negated that a victim or his legal representative, as per the set out procedure ought to make an application to participate in a trial, where it is the duty of the trial Court to evaluate the matter before it, consider the victim’s views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, in the judge’s discretion, determine the extent and manner in which a victim can participate in a trial.
This notwithstanding, my view is that the failure to comply with the above procedural dictates cannot in entirety render the trial as a nullity. To quote the Supreme Court, this court fails to see how the ‘participatory rights of the victim’ violate the ‘fair trial’ rights of the accused. These sentiments are not couched in a vacuum. This court’s position is that it is only prudent that the appellant demonstrates how the failure to make a formal application to participate in the proceedings by the victim and/or her representative was so vile that it infringed his rights to fair trial.
As it stands, at no one point did the appellant state or demonstrate that his rights to a fair trial were infringed because of the victim/representative’s participation.
While the victim’s counsel watching brief participated in the trial. The extent of that participation was only limited to safeguarding the rights of the victim. It was neither argued by the appellant nor deducible in the trial court’s proceedings that the DPP did not always retain control of, and supervision over the prosecution of the case. Simply put, the constitutional and statutory powers of the DPP to conduct the prosecution were not affected by the intervention of the victim in the process.
This court’s assessment and holding is that the victim’s participation were within the auspices of section 9(2) (a) of the VPA .
Facts as in the instant, ought to be considered on a case-to-case basis. It should not be lost that constitutional rights in criminal proceedings are relative to all participants, which equally and complementary ought to be protected. There is a public interest in ensuring that trials are fair. This interest can be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interests and rights.
It would be a travesty of justice, to simply hold the trial court’s proceedings as nullity on the pretext that the victim’s participation was devoid of a formal application, without demonstrating how the failure to comply with procedural technicality overrode and prejudiced the appellant’s right to fair trial.
Whether the voire dire examination was not properly undertaken?
The appellant’s contention is that the questions asked by the trial court were not phrased to establish whether the minor understood the meaning of an oath but focussed more on her religious beliefs.
Section 19 (1) of the Oaths and Statutory Declaration Act is the provision under which voire dire examinations are underpinned to determine the child’s understanding of the nature of an oath. This provision does not of itself provide for the format to be applied during such administration. The format used has basically evolved through case law.
The law is that absence of voire dire examination or the proper administration of it is not automatically fatal to the evidence of a witness. This was the observation made by the Court of Appeal in Maripett Loonkomok v Republic (2016) eKLR where it was held that:
“We turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014.”
In this instance, I have perused the trial court’s proceedings, and I find the voire dire exam was sufficiently conducted. A part-excerpt of the trial court’s exam is as follows;
“Q. Do you attend church/mosque?
A. I attend Madrasa. We are taught not to lie. We obey our parents. It’s wrong to lie, if you lie you sin. At the end of the world he will go to hell.
(Shown Quran) It’s a Quran
I know what oath means. I believe Quran. If I take oath, it means I will not lie.”
From the excerpt the minor was examined on the meaning and nature of an oath, howbeit craftily. I have no reason to find otherwise.
Whether the trial court failed to abide to the law on taking-over part heard matters?
The issue before Court is the exercise of the trial court’s discretion under section 200(3) of the Criminal Procedure Code . The section provides as follows: -
…
(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and re-heard and the succeeding magistrate shall inform the accused person of that right.
(4)....”
It is not in dispute that the succeeding learned trial magistrate rejected the application to restart the matter de novo. The trial court’s record reveals that succeeding learned magistrate, having considered the rival arguments, sided with the prosecution. It summarily noted that almost three (3) years had passed since the victim’s testimony was taken. Further, the victim was diagnosed with childhood depression and trauma and had since been undergoing counselling. Needless to add, the record shows that the prosecution witnesses were cross-examined by the appellant in person. Therefore, it would not be in the best interests of the minor recall her and subject her to trauma afresh.
Although the applicant states that he is entitled to the right to have the matter start afresh, section 200(3) does not give that suggestion; the only right bestowed upon him is the right to be informed that he may demand for recalling of the witnesses. The decision whether to recall those witnesses lies with the succeeding magistrate and obviously such decision will be made depending on the circumstances of each case. The provision does not obligate the succeeding magistrate to start the trial de novo.
I would in this regard adopt the opinion of the Court of Appeal in Malindi Criminal Appeal No. 57 of 2014, Joseph Kamora Maro versus Republic where the court held that:-
…To this extent we are in agreement with the learned judges of the High Court that “this provision does not oblige the succeeding magistrate to start denovo” but what is mandatory is to inform an accused person of his right under section 200(3) of the Criminal Procedure Code.
The point is, it is not in every case that the court will recall witnesses; it may be that such witnesses may not be available, or some considerable time has lapsed since they testified or that there may not be any prejudice caused either to the accused or the prosecution if the witnesses are not called or for any other reason that in the opinion of the trial court justifies the decision not to recall the witnesses. In this instance no prejudice has been proffered by the appellant.
Respectfully, the whole purpose of section 200 of the Criminal Procedure Code is to ensure a fair trial and if a decision is taken upon a correct interpretation of that particular provision but which may not be popular with the appellant, it does not thereby follow that his rights were denied.
Whether the prosecution established its case against the appellant beyond reasonable doubt?
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (See George Opondo Olunga vs. Republic [2016] eKLR .)
Section 8(1) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
…
(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.
…
(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
The first element is age . The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added).
The age of the minor was not in dispute, it was established by the testimonies of PW2, the complainant’s mother and PW4, Mr. Stephen Kalai the reproductive health specialist . Further, a copy of the complainant’s Birth Certificate Entry No.0251217963 was produced on record as PEXH-1, establishing that as at the time of the incidence the complainant was 8 years.
The second issue is whether the prosecution established proof of penetration of the complainant , beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. The provisions of Section 124 of the Evidence Act, informative to the end that a conviction can rest squarely on the sole testimony of the victim. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
The record before me, shows clearly that complainant was properly subjected to voire dire examination at the end of which, the learned Magistrate concluded that the complainant may give a sworn testimony.
In her testimony, PW1 stated that she knew the (appellant) as ‘ Ustadh’ who was a neighbor. Her narration of the ordeal as perpetrated by the appellant was that he defiled her in five (5) different occasions.
On the first time, she was in the company of her friends who knew the appellant and referred to him as “ustadh”. She had been sent to the shop by her mother when the appellant called her and told her to follow her to his house, which was still under construction. It was her testimony that the appellant “…told her to wait outside as he entered his house and came out with a bottle of water and told her to drink. She became unconscious and when she woke up, she found herself inside the house sleeping on a sack with tape on her mouth and her pants beside her. The appellant was seated on a stool beside. The appellant removed the tape and warned her that he would kill her if she told anyone.”
The second time, she was playing with her friends, where the friends left to fetch water. “Ustadh called her while standing on the road, and they went to his house. He went inside and came with five (5) sweets and gave her three(3) which after taking she became unconscious, and when she woke up she laid on a sack with her pants next to her and a tape on her mouth. The appellant then released her to go home.”
PW1 stated that she never told anyone for fear that the appellant would kill her. The appellant had instructed her to go to his house every day. That, she used to feel pain where ‘she uses to urinate’.
The third time, she went to his house and found seated at his door. This time “he forgot to put tape in her mouth, he took her to the back room took of her pants and removed his trouser, took his ‘thing’ and inserted it where she uses to urinate.” This court notes that it was recorded by the trial court PW1 broke down to tears mid-testimony and proceedings had to be paused to enable her to compose herself. The fourth time, the appellant similarly took “her to the back room, wrapped her with tape on her mouth removed her pants, removed his trousers, took his ‘mdudu’ and inserted it where she uses to urinate and removed it after some time. She felt pain”
On the fourth time, she found the appellant seated at the door. He had tape and a rope in his pocket. He then told her to follow him to the house where he took the rope, tied her hands on her back and tied her legs apart, despite her attempts to struggle. He then inserted her mdudu where she urinates and removed it after some time. He then removed the tape and the rope. She felt pain that she could not walk properly.”
PW1’s testimony was always that she did not reveal her ordeals to anyone out of fear that the appellant would kill her.
PW4; Stephen Kalai, a Reproductive Health, stationed at the Likoni Sub-County Hospital who produced the PRC report and the P3 as . On her medical examination it was evidenced that; she had oedematose on her labia majora (tender) and swollen, her hymen was broken with old scarring, and she had widespread fresh vaginal abrasions..
From the foregoing, there leaves no room for doubt that the indeed penetration sufficed. Simply put, I agree with the trial court that the second ingredient namely penetration was sufficiently proven based on the victim’s evidence and the corroborating medical evidence.
The bone of contention which the appellant has extensively argued was on the identification of the perpetrator , PW1’s evidence is that the appellant is well known to her by dint that he was a neighbour whom the neighbourhood children referred to as “ustadh” .
The appellant argued that the complainant failed to identify him at the identification parade, and that the alias ‘ustadh’ was not his own, as his choice of dressing in long kanzus was synonymous to many others.
At this point it is worthwhile for this
[...truncated]
The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.
Particulars of the offence are that the appellant on diverse dates between 1 st January, 2021 and 10 th day of June, 2021 at Approved area, in Likoni Sub-County, within Mombasa County, unlawfully and intentionally caused his penis to penetrate the vagina of U.S.S a child aged 8 years.
He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006 , which particulars of the offence are that on diverse dates between 1 st January, 2021 and 10 th day of June, 2021 at Approved area, in Likoni Sub-County, within Mombasa County, he intentionally and unlawfully did an indecent act by touching the vagina of U.S.S. a child aged 8 years with his penis.
The prosecution called five (5) witnesses in surmounting their case, after which the trial court ruled that the appellant had a case to answer and was thereby put in his defence . Equally, the appellant called six (6) witnesses and after full trial he was found guilty of the main count and the alternative charge deemed as spent and was thereby sentenced to thirty (30) years imprisonment.
Being aggrieved by the conviction and sentence of the trial court, the appellant preferred the present appeal. He based it on grounds that the learned trial magistrate erred in matters of both law and fact by failing to comply with the law relating to evidence of minors thus making a finding that the complainant was a liar. He faulted the learned trial magistrate in finding that there had been positive identification or recognition of the appellant despite evidence to the contrary.
Further, that the learned trial magistrate erred in law and fact in failing to comply with law relating to taking over part heard matters. Consequently, the learned magistrate erred in law and fact for arriving at a conviction against the weight of evidence, thus issuing a manifestly harsh and excessive sentence.
The appeal was canvassed by way of written submissions.
Written submissions
The appellant raised several procedural issues regarding how the trial was conducted.
First, that the victim was represented by a counsel watching brief, who participated in the proceedings, but no formal application was made by the victim/representative for their participation in trial. The applicant cited the authority in Joseph Lendrik Waswa - VS- Republic (SCOK Petition No. 23 of 2019).
Secondly, it is contended that the voire dire examination was improperly conducted as the trial court inquired of the child’s religion and religious beliefs other than establishing whether the child understood the meaning and nature of an oath.
Further, the appellant argues that the trial court breached his right to fair trial by failing to inform him promptly at the initial stages of the trial contrary to Article 50 (2) of the COK.
In addition, that the appellant contends that his right to recall witnesses once the trial court proceeded on transfer and a succeeding learned magistrate came, was denied contrary to Sec 200 of the CPC.
Lastly, that, the critical ingredients of the offence, were not established against him as there was no corroborative evidence to support the prosecution’s case, being that on identification, the complainant did not positively identify him in the identification parade.
The respondent opposing the appeal submitted that contrary to the appellant’s arguments the voire dire examination was curated to specifically determine whether the minor understood the meaning of an oath, and thereto placed reliance on the C.O.A decision in D.W.M vs Republic (2016)eklr.
As to the court’s compliance with Sec 200 of the CPC, the appellant personally ceded that he did not wish for the matter to start afresh. Further, the succeeding court made its Ruling after all parties stated their arguments. Further, the appellant had personally fully cross-examined the minor.
On the ingredient of identification of the appellant. It was argued that the minor testified that the appellant was known to her as ‘Ustadh’ who had severally defiled her in his home . That, the need for an identification parade was inconsequential. In addition, the minor had identified the appellant’s house prior to his arrest. However, the minor as stated was fearful having received death threats from the appellant, therefore she failed to identify him out of fear for her life during the identification parade, which reasons are justifiable. Reliance was placed on the authority in Republic vs Valentine Maloba & 2 others (2021)eklr.
It was the respondent’s submission that the minor gave a clear recollection of her ordeal as corroborated by the medical evidence on record sustaining the conviction.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Several preliminary issues were raised by the appellant in so far as the conduct of trial is concerned, which he argues impeded his right to fair trial. This court shall sequentially dispense with the same as follows.
Whether the appellant’s right to fair trial was infringed by the trial court’s failure to inform him of his right to legal representation in the initial stages of the proceedings?
Article 50 of the Constitution provides for the right of an accused person as follows: -
50.Fair hearing
(2) Every accused person has the right to a fair trial, which includes the right—
g.to choose, and be represented by, an advocate, and to be informed of this right promptly;
h.to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;”
This Court’s understanding of the provision is that the right of an accused person to be assigned an advocate is not absolute and is only a requirement where substantial injustice may occur in the absence of such representation.
In Karisa Chengo & 2 Others vs. R, Cr. Nos. 44, 45 & 76 of 2014 , the court also stated: -
“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 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 arises 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.”
From the above discourse, it follows that it is not mandatory that an accused is offered legal representation at state expense unless he will otherwise suffer substantial injustice. However, in the instant case, the trial court did not inform the Appellant of his right to legal representation, the omission was not incurable nor prejudicial to the appellant. I do note from the court record that the appellant understood the charges brought against him and he was able to cross-examine the accused critically. Needless to add, save for the initial proceedings where PW1 testified and was ably cross-examined by the appellant, from then on, the appellant had the benefit of legal representation all through.
I further note that the appellant was not charged with a capital offence that carried a death penalty to warrant the mandatory need for for legal representation. It then follows that the trial was conducted in a fair manner with no prejudice occasioned to the appellant due to lack of legal representation. In Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) the court similarly held that:
“In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant’s case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses. It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer any injustice due to lack of legal representation.”
Whether the trial proceedings are a nullity by failure the victim’s counsel watching brief to formally make an application for participation in trial?
The appellant argues that the victim/counsel watching brief participation in the proceedings, was not preceded by a formal application at the trial court, which renders the entire proceedings as a nullity.
The right to fair hearing is provided for under Article 50(1) of the Constitution and the attendant rights of an accused person are set out in Article 50(2) of the Constitution .
The Constitution also recognizes victims of offences under Article 50 (9), where to give its effect the Victims Protection Act was enacted to realize the constitutional underpinning.
Section 2 of the VPA defines a victim as ‘any natural person who suffers injury, loss or damage as a consequence of an offence’. The objects and purpose of the VPA as stipulated under Section 3 is to recognize and give effect to the rights of victims of crime. Section 4 sets out the general principles that guide the Court in dealing with a question of the rights and welfare of a victim. Section 4(2)(b) provides that a Court must ensure that ‘every victim is, as far as possible, given an opportunity to be heard and to respond before any decision affecting him or her is taken’ .
Pertinent to the instant issue the Supreme Court in Waswa v Republic (Petition 23 of 2019) [2020] KESC 23 (KLR) succinctly listed the guiding principles to assist trial Courts when considering an application by a victim or his legal representative to participate in a trial and the manner and extent of the participation.
The peculiarity of the instant matter is that no application was formally made for furtherance of the victim or her counsel’s participation in the trial court proceedings. This court has considered the trial court’s proceedings, and it is apparent that the trial court impliedly allowed the victim/counsel’s participation without expressly curtailing it.
As to the extent of the victim’s counsel watching brief’s participation, this court notes that their active involvement as per the proceedings was only limited to three(3) isolated instances, the cross-examination of the victim (PW1), the call by the appellant to have the victim recalled for cross-examination three (3) years after her testimony and/or the restarting of the trial de novo which they argued would further traumatize the victim, and the call by the appellant to adjourn a subsequent defence hearing to call more witnesses; seven (7) other than the initially set of five (5).
The apposite question is whether the failure by the victim and her counsel to formally apply for their participation in trial, to the extent particularized above, rendered the entire proceedings a nullity. This court answers by a resounding ‘NO’.
From the onset, it should not be construed that this court is in a misguided attempt to reinvent the wheel as set by the the Supreme Court in Waswa v Republic(Supra). On the contrary, this court cedes guidance from the learned bench in the same decision where they held thus;
66.These constitutional provisions read together with the VPA affirm that victims have rights in the Kenya criminal justice system. These rights are stipulated in section 9 of the VPA . Also, Article 27 of the Constitution provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Both the Constitution and the VPA seek to ensure the fairness of justice procedures applied to both the victims and accused particularly on the right to a fair hearing, timeliness, respect, dignity, and neutrality.
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67.The Trial Court being an impartial entity that oversees the progress of a case, has the ultimate function of determining the accused's guilt or innocence. Its aim is to establish the truth. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. Thus, the rights of the accused cannot be considered in isolation without regard to those of the victim. Victims too have a legitimate interest in the Court’s exercise of its jurisdiction. The Criminal Justice system should cultivate a process that inspires the trust of both the victim and the accused.
68.Considering the rights of the accused, the victim, and society as a whole in a criminal trial is not only fair, pragmatic but also constitutionally viable.
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70.We agree with these sentiments. The trial Judge must protect the rights of all parties involved in criminal proceedings. There is a public interest in ensuring that trials are fair. This interest can be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interest. The rights of the accused should be secured and fulfilled. So too the public interest. The rights of victims, properly understood, do not undermine those of the accused or the public interest. The true interrelationship of the three is complementary.
71.Therefore, we fail to see how the ‘participatory rights of the victim’ violate the ‘fair trial’ rights of the accused. A victim can participate in a trial in person or via a legal representative. So then, who determines the manner and extent of a victim’s participation in a trial?
It is not negated that a victim or his legal representative, as per the set out procedure ought to make an application to participate in a trial, where it is the duty of the trial Court to evaluate the matter before it, consider the victim’s views and concerns, their impact on the accused person’s right to a fair trial, and subsequently, in the judge’s discretion, determine the extent and manner in which a victim can participate in a trial.
This notwithstanding, my view is that the failure to comply with the above procedural dictates cannot in entirety render the trial as a nullity. To quote the Supreme Court, this court fails to see how the ‘participatory rights of the victim’ violate the ‘fair trial’ rights of the accused. These sentiments are not couched in a vacuum. This court’s position is that it is only prudent that the appellant demonstrates how the failure to make a formal application to participate in the proceedings by the victim and/or her representative was so vile that it infringed his rights to fair trial.
As it stands, at no one point did the appellant state or demonstrate that his rights to a fair trial were infringed because of the victim/representative’s participation.
While the victim’s counsel watching brief participated in the trial. The extent of that participation was only limited to safeguarding the rights of the victim. It was neither argued by the appellant nor deducible in the trial court’s proceedings that the DPP did not always retain control of, and supervision over the prosecution of the case. Simply put, the constitutional and statutory powers of the DPP to conduct the prosecution were not affected by the intervention of the victim in the process.
This court’s assessment and holding is that the victim’s participation were within the auspices of section 9(2) (a) of the VPA .
Facts as in the instant, ought to be considered on a case-to-case basis. It should not be lost that constitutional rights in criminal proceedings are relative to all participants, which equally and complementary ought to be protected. There is a public interest in ensuring that trials are fair. This interest can be served by safeguarding the rights of the accused, the objectivity of the prosecution and, by acknowledging the victim’s interests and rights.
It would be a travesty of justice, to simply hold the trial court’s proceedings as nullity on the pretext that the victim’s participation was devoid of a formal application, without demonstrating how the failure to comply with procedural technicality overrode and prejudiced the appellant’s right to fair trial.
Whether the voire dire examination was not properly undertaken?
The appellant’s contention is that the questions asked by the trial court were not phrased to establish whether the minor understood the meaning of an oath but focussed more on her religious beliefs.
Section 19 (1) of the Oaths and Statutory Declaration Act is the provision under which voire dire examinations are underpinned to determine the child’s understanding of the nature of an oath. This provision does not of itself provide for the format to be applied during such administration. The format used has basically evolved through case law.
The law is that absence of voire dire examination or the proper administration of it is not automatically fatal to the evidence of a witness. This was the observation made by the Court of Appeal in Maripett Loonkomok v Republic (2016) eKLR where it was held that:
“We turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case. See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014.”
In this instance, I have perused the trial court’s proceedings, and I find the voire dire exam was sufficiently conducted. A part-excerpt of the trial court’s exam is as follows;
“Q. Do you attend church/mosque?
A. I attend Madrasa. We are taught not to lie. We obey our parents. It’s wrong to lie, if you lie you sin. At the end of the world he will go to hell.
(Shown Quran) It’s a Quran
I know what oath means. I believe Quran. If I take oath, it means I will not lie.”
From the excerpt the minor was examined on the meaning and nature of an oath, howbeit craftily. I have no reason to find otherwise.
Whether the trial court failed to abide to the law on taking-over part heard matters?
The issue before Court is the exercise of the trial court’s discretion under section 200(3) of the Criminal Procedure Code . The section provides as follows: -
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(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and re-heard and the succeeding magistrate shall inform the accused person of that right.
(4)....”
It is not in dispute that the succeeding learned trial magistrate rejected the application to restart the matter de novo. The trial court’s record reveals that succeeding learned magistrate, having considered the rival arguments, sided with the prosecution. It summarily noted that almost three (3) years had passed since the victim’s testimony was taken. Further, the victim was diagnosed with childhood depression and trauma and had since been undergoing counselling. Needless to add, the record shows that the prosecution witnesses were cross-examined by the appellant in person. Therefore, it would not be in the best interests of the minor recall her and subject her to trauma afresh.
Although the applicant states that he is entitled to the right to have the matter start afresh, section 200(3) does not give that suggestion; the only right bestowed upon him is the right to be informed that he may demand for recalling of the witnesses. The decision whether to recall those witnesses lies with the succeeding magistrate and obviously such decision will be made depending on the circumstances of each case. The provision does not obligate the succeeding magistrate to start the trial de novo.
I would in this regard adopt the opinion of the Court of Appeal in Malindi Criminal Appeal No. 57 of 2014, Joseph Kamora Maro versus Republic where the court held that:-
…To this extent we are in agreement with the learned judges of the High Court that “this provision does not oblige the succeeding magistrate to start denovo” but what is mandatory is to inform an accused person of his right under section 200(3) of the Criminal Procedure Code.
The point is, it is not in every case that the court will recall witnesses; it may be that such witnesses may not be available, or some considerable time has lapsed since they testified or that there may not be any prejudice caused either to the accused or the prosecution if the witnesses are not called or for any other reason that in the opinion of the trial court justifies the decision not to recall the witnesses. In this instance no prejudice has been proffered by the appellant.
Respectfully, the whole purpose of section 200 of the Criminal Procedure Code is to ensure a fair trial and if a decision is taken upon a correct interpretation of that particular provision but which may not be popular with the appellant, it does not thereby follow that his rights were denied.
Whether the prosecution established its case against the appellant beyond reasonable doubt?
The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator . These ingredients are provided for under section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (See George Opondo Olunga vs. Republic [2016] eKLR .)
Section 8(1) of the Sexual Offences Act provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
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(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.
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(5) It is a defence to a charge under this section if –
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
The first element is age . The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added).
The age of the minor was not in dispute, it was established by the testimonies of PW2, the complainant’s mother and PW4, Mr. Stephen Kalai the reproductive health specialist . Further, a copy of the complainant’s Birth Certificate Entry No.0251217963 was produced on record as PEXH-1, establishing that as at the time of the incidence the complainant was 8 years.
The second issue is whether the prosecution established proof of penetration of the complainant , beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. The provisions of Section 124 of the Evidence Act, informative to the end that a conviction can rest squarely on the sole testimony of the victim. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
The record before me, shows clearly that complainant was properly subjected to voire dire examination at the end of which, the learned Magistrate concluded that the complainant may give a sworn testimony.
In her testimony, PW1 stated that she knew the (appellant) as ‘ Ustadh’ who was a neighbor. Her narration of the ordeal as perpetrated by the appellant was that he defiled her in five (5) different occasions.
On the first time, she was in the company of her friends who knew the appellant and referred to him as “ustadh”. She had been sent to the shop by her mother when the appellant called her and told her to follow her to his house, which was still under construction. It was her testimony that the appellant “…told her to wait outside as he entered his house and came out with a bottle of water and told her to drink. She became unconscious and when she woke up, she found herself inside the house sleeping on a sack with tape on her mouth and her pants beside her. The appellant was seated on a stool beside. The appellant removed the tape and warned her that he would kill her if she told anyone.”
The second time, she was playing with her friends, where the friends left to fetch water. “Ustadh called her while standing on the road, and they went to his house. He went inside and came with five (5) sweets and gave her three(3) which after taking she became unconscious, and when she woke up she laid on a sack with her pants next to her and a tape on her mouth. The appellant then released her to go home.”
PW1 stated that she never told anyone for fear that the appellant would kill her. The appellant had instructed her to go to his house every day. That, she used to feel pain where ‘she uses to urinate’.
The third time, she went to his house and found seated at his door. This time “he forgot to put tape in her mouth, he took her to the back room took of her pants and removed his trouser, took his ‘thing’ and inserted it where she uses to urinate.” This court notes that it was recorded by the trial court PW1 broke down to tears mid-testimony and proceedings had to be paused to enable her to compose herself. The fourth time, the appellant similarly took “her to the back room, wrapped her with tape on her mouth removed her pants, removed his trousers, took his ‘mdudu’ and inserted it where she uses to urinate and removed it after some time. She felt pain”
On the fourth time, she found the appellant seated at the door. He had tape and a rope in his pocket. He then told her to follow him to the house where he took the rope, tied her hands on her back and tied her legs apart, despite her attempts to struggle. He then inserted her mdudu where she urinates and removed it after some time. He then removed the tape and the rope. She felt pain that she could not walk properly.”
PW1’s testimony was always that she did not reveal her ordeals to anyone out of fear that the appellant would kill her.
PW4; Stephen Kalai, a Reproductive Health, stationed at the Likoni Sub-County Hospital who produced the PRC report and the P3 as . On her medical examination it was evidenced that; she had oedematose on her labia majora (tender) and swollen, her hymen was broken with old scarring, and she had widespread fresh vaginal abrasions..
From the foregoing, there leaves no room for doubt that the indeed penetration sufficed. Simply put, I agree with the trial court that the second ingredient namely penetration was sufficiently proven based on the victim’s evidence and the corroborating medical evidence.
The bone of contention which the appellant has extensively argued was on the identification of the perpetrator , PW1’s evidence is that the appellant is well known to her by dint that he was a neighbour whom the neighbourhood children referred to as “ustadh” .
The appellant argued that the complainant failed to identify him at the identification parade, and that the alias ‘ustadh’ was not his own, as his choice of dressing in long kanzus was synonymous to many others.
At this point it is worthwhile for this
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