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JudgmentJOHN FREDRICK MWALELE VS The Republic9 min read

JOHN FREDRICK MWALELE VS The Republic

High Court at Malindi High Court · · M Thande

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CRIMINAL APPEAL NO. E028 OF 2023

JOHN FREDRICK MWALELE ....……...…....……………………………….……APPELLANT  

VERSUS

REPUBLIC.…...…………………………………….....….………………………..RESPONDENT

(An Appeal arising out of the judgment of Hon. R. Amwayi, PM delivered on 23.5.23 in Kaloleni Sexual Offences Case No. E270 of 2022)

JUDGMENT

  1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act (SOA). The particulars of the offence were that on diverse dates between 1.7.21 and 30.7.21 at Ribe area in Rabai subcounty of Kilifi county, the Appellant intentionally caused his penis to penetrate the vagina of RPM (the Complainant), a child of 16 years. The Appellant also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the SoA. The particulars of this offence were that on the said diverse dates and in the same place, the Appellant intentionally touched the private parts of the Complainant using his penis. Following trial, the Appellant was convicted of the main charge and sentenced to serve a term of 15 years imprisonment. 
  2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The summarized grounds of appeal are that the trial Magistrate erred in:
  3. Ruling that PW1 was a refractory witness and proceeded to order that she be incarcerated for 3 days.
  4. Directing that the hearing proceeds afresh on 19.9.22 despite having already directed that further hearing be on 22.9.22.
  5. Conducting the hearing on 19.9.22 in a manner that was biased which was an afront to the Appellant’s right to a fair trial.
  6. Arriving at a decision based wholly on evidence obtained from PW1 through coercion, while ignoring other important facts that would have exonerated the Appellant.
  7. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.

  1. At the commencement of the hearing, on 19.9.22, the Complainant testified and stated that the Appellant was her boyfriend. He told her to meet him at Makobeni where he led her to a certain house. They were all alone and he suggested that they have sex but she refused as she did not love him. She then went to the home of her friends Amina and Saumu where she spent the night. The following day, she met her brother and sister on her way home who quarreled with her and told her to return to where she had come from. Instead of going home, she went to Amina’s uncle’s funeral, after which she went to her schoolmate’s home. While there, her brother Peter called her inquiring of her whereabouts and she told him. When the Appellant called her, she lied to him she was at home. The following day she was summoned to Kambe Ribe Police Station where she was informed that the Appellant had been arrested. The investigating officer interrogated her on whether she had had sex with the Appellant but she denied. She was then taken to the OCS who due to fear of her father, she told him that the Appellant had had sex with her. She then recorded her statement with the investigating officer. She then stated that what is in the statement is not what had happened.
  2. Noting that the Complainant had denied the contents of her statement, the prosecution applied to have her declared a refractory witness and that she be remanded for 3 days. The trial Magistrate stood the Complainant down and remanded her in custody for 3 days until 22.9.22. At this point, the Complainant stated that the investigating officer had told her to recant her statement and lie to the court because they wanted the matter to be resolved at home. She further told her to lie so the Appellant was not jailed. She then stated that she wished to state the truth, whereupon she was sworn again and proceeded with her testimony.
  3. The Complainant stated that when she declined to have sex with the Appellant in the house he had taken her, he forcefully removed her dress and biker and pushed her to the bed. He then penetrated her vagina with his penis. Upon finishing, her gave her Kshs. 1,500/=. She then ran to Amina’s house.  
  4. I have considered the submissions filed by the Appellant and the Respondent. 
  5. The Appellant has faulted the trial Magistrate for declaring the Complainant a refractory witness and ordering that she be remanded in custody for 3 days. On pain of incarceration, the Complainant completely changed her testimony and implicated the Appellant. As such, she was an unreliable witness and her evidence ought to have been found to be unreliable. The Appellant further argued that the Complainant ought rather to have been declared a hostile witness and put on cross examination.  
  6. On this issue, the Respondent agreed with the Appellant and submitted that from the Complainant’s testimony, she did not qualify to be declared a refractory witness as provided under Section 152 of the Criminal Procedure Code. The Respondent further submitted that the Complainant changed her initial testimony upon being told that she would be remanded in custody for 3 days. The Respondent agreed that the conviction was not safe and conceded the Appeal.
  7. The law on refractory witnesses is contained in Section 152 of the Criminal Procedure Code which provides as follows:
  8. Whenever a person, appearing either in obedience to a summons or by virtue of a warrant, or being present in court and being verbally required by the court to give evidence—
  9. refuses to be sworn; or
  10. having been sworn, refuses to answer any question put to him; or
  11. refuses or neglects to produce any document or thing which he is required to produce; or
  12. refuses to sign his deposition, without offering sufficient excuse for his refusal or neglect, the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person to prison, unless he sooner consents to do what is required of him.
  13. If the person, upon being brought before the court at or before the adjourned hearing, again refuses to do what is required of him, the court may again adjourn the case and commit him for the same period, and so again from time to time until the person consents to do what is so required of him.
  14. Nothing contained in this section shall affect the liability of any such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.

  1. Flowing from the foregoing, it is clear that a refractory witness is one who, on being verbally required by the court to give evidence, refuses to be sworn, or having been sworn, refuses to answer questions put to him, or declines or neglects to produce a document or thing that is required of him, or without sufficient excuse, refuses to sign his deposition. When any of the foregoing happens, the court may adjourn the matter and for a period not exceeding 8 days, and may also commit such a witness to prison, until he agrees to do that which is required of him. Further failure to comply will attract the consequences in Section 152 (2) and (3).
  2. The Complainant herein stated that she declined the Appellant’s request for sex and that upon interrogation by the investigating officer, she had stated that she had not had sex with the Appellant. Further that it was out of fear of her father that she told the OCS that she had sex with the Appellant. She then disowned her statement. At this point, the prosecution applied for the Complainant to be stood down and declared a refractory witness. The brief proceedings leading to the Complainant being declared a refractory witness are reproduced below:

Prosecutor: I apply that PW1 be stood down and declared a refractory witness. I apply that she be remanded for 3 days.

Court:     PW1 is stood down. She is remanded in custody until 22.9.2022 when the matter comes up for hearing.

  1. It would appear that the Complainant, being afraid of being held in custody for 3 days, changed her story. She stated that she had been told by the investigating officer to recant her statement and lie to the court if she did not want the Appellant to be jailed and so that the matter would be resolved at home. She then stated that she was ready to tell the truth and this time she implicated the Appellant. 
  2. The circumstances herein are that the Complainant was sworn and answered all the questions put to her. At no point did she decline to be sworn, answer any question, refuse to produce any document or sign any disposition. It is therefore quite clear that there was nothing in the conduct of the Complainant that would render her a refractory witness as contemplated under Section 152 of the Criminal Procedure Code. I agree with the Appellant that having recanted her statement, the Complainant ought to have been declared a hostile witness and subjected to cross examination. To this extent therefore, the trial Magistrate misdirected herself in remanding the Complainant in custody.
  3. While dealing with a similar situation in the case of Elly Otieno Ogwang v. Republic (2018) eKLR, Majanja, J stated:

PW1 was not a refractory witness as she was able to answer the questions put to her. The complaint by the prosecutor was that she was retracting the statement she had earlier made to the police. In substance, she was a hostile witness thus the trial magistrate therefore erred in remanding her in custody. The trial magistrate ought to have declared her a hostile witness. Once the witness was declared hostile, the prosecutor was entitled to cross-examine the witness by putting to her the previous statement she recorded with the police in accordance with sections 153, 154, 161 and 163 of the Evidence Act (Chapter 80 of the Laws of Kenya)”.

  1. In the judgement, the trial Magistrate stated:

From the evidence on record, the prosecution case was consistent that the accused in the month of July 2022 defiled the child. The complainant testified that she was defiled by the accused person herein. 

  1. As the record shows, the Complainant initially stated that she had not had sex with the Appellant and recanted her statement and later, most likely out of fear of being held in custody for 3 days, changed her story and implicated the Appellant. The trial Magistrate thus fell in error in finding that the prosecution case was consistent as it clearly was not.
  2. The probative value of a refractory witness is well settled. In the case of Daniel Odhiambo Koyo v Republic [2011] eKLR, the Court of Appeal stated that the probative value of the evidence of a refractory witness is negligible. The Court further stated: 

Normally a court will take a perverse view of the credibility of the hostile or refractory witness in view of his shift in position regarding his statement to the police regarding the case against the accused or is reluctance (sic) to testify. 

  1. In light of the foregoing, my finding is that the conviction of the Appellant on the Complainant’s latter evidence was unsafe. This is conceded by the Respondent. I accordingly allow the appeal, quash the conviction and set aside the sentence imposed on the Appellant. He is forthwith set at liberty unless otherwise lawfully held.   

DATED, SIGNED and DELIVERED via MS TEAMS this 27th day of September 2024

___________________________

M. THANDE

JUDGE

    JOHN FREDRICK MWALELE VS The Republic JOHN FREDRICK MWALELE VS The Republic