The Appellant Leonard Panda Mugole was charged with the offence of committing and indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars are that on the 1st Day of September 2020 at around 07.00hours at Oyani farm village Kamsaki Sub-Location, South Kanyamkago Location in Uriri Sub-County within Migori County the Appellant intentionally, wilfullt and unlawfully touched the chest, breast and vagina of C. A. a girl aged 9 years.
Based on the evidence of three (3) prosecution witnesses and the Appellant’s sworn testimony the trial magistrate convicted him and sentenced him to serve 15 years imprisonment.
The Appellant was dissatisfied with the whole decision and sentence of the Trial Magistrate and he filed his Memorandum of Appeal dated 19th December 2023 on the following grounds:
1. The Learned Trial Magistrate erred in law and fact by failing to comply with Article 50 (2) (g) (h) of the Constitution 2010.
2. The Learned Trial Magistrate erred in law and fact by not considering that the ingredients of the offence herein were not proved to the required standards.
Reasons wherefore the Appellant prayed that the conviction be quashed and sentence set aside, and any other order the court deems fit be granted.
Prosecution’s case was supported by three (3) witnesses who testified that the Appellant’s wife found him embracing the Complainant who had gone to their home to fetch milk and she raised alarm and called the mother of the Complainant and told her to ask the daughter what the Appellant was doing to her in the house. The Complainant’s mother had agreed with the Appellant to supply her with milk which the Complainant or her sister could pick every day between 6.00 to 7.00pm after coming from school. It was the Complainant’s evidence that whenever she went to pick milk the Appellant could touch her chest / breast and private parts while they were in his house. She also said the Appellant used to kiss her mouth but warned her that if she told anyone what he used to do to her he would kill her. The Complainant said that the Appellants wife woke up and found him kissing her and went to report to her mother.
The Complainant’s mother testified that on 1st September 2020 the Complainant had gone to collect milk as usual and when she heard someone shouting and she saw it was the Appellant’s wife who was standing by her well and shouting and called the Complainant to come and explain to her mother what had happened and she demanded that they take action against the Appellant for having been found embracing the Complainant. That the Complainant’s father and reported the matter at Oyani Police Station and the police went to the scene and instructed them to go to Uriri Sub-County Hospital where PW1wasexamined. That when PW1 calmed down she was able to tell PW2 how the Appellant used to indecently touched her breasts and private parts and that he had warned to kill her if she revealed what he was doing to her.
When the Appellant was placed on defense he admitted that he used to supply milk to the Complainant’s family and that the Complainant could collect the milk between 6.00 and 7.00 a.m when schools are closed. The Appellant also admitted that on 1st September 2020 the Complainant had gone to collect milk and that his wife woke up and started accusing him of touching the child. The Appellant denied having committed the offence and called a character witness a pastor who admitted he could not know everything about another.
PW3 testified that he took over investigations herein when the initial Investigating Officer went on transfer. He said the Appellants wife was not caused to recod a statement as she is not compellable. He said the Complainant and the Appellant were the only eye witnesses to what happened. PW3 said there was no relationship between the Appellant and the Complainants family apart from supply of milk. PW3 said the Complainant confirmed the indecent acts had been going on for some time whenever she went to collect milk.
This appeal was canvassed by written submissions.
The Appellant in his submissions contended that he was not informed promptly of his rights under Article 50(2) (g) & (h) of the Constitution and he was also not supplied with witness’ statements as stipulated under Article 50(2)(b) & (c) of the Constitution.
The Appellant also submitted that when his advocate came on record and applied for recall of PW1 & 2 the Trial Court declined to grant the application on lame excuse that the witnesses could not be traced despite the Chief indicating that they had relocated. The Appellant said that by declining to recall the said witnesses the Trial Magistrate was promoting an illegality by relying on the proceedings which were illegal from the onset since they were against the provisions of the law.
The Appellant argued that the ingredients of the offence of indecent act were not proved as the same does not include kissing.
The Appellant said that the offence was fabricated by his wife and failure to call her as a witness was an infringement to his constitutional right to fair hearing.
The Respondents in submissions dated 5th June 2025 opposed the appeal and urged that the appeal be dismissed. It was submitted that the ingredients of the offence of indecent act was proved to the required standards by the prosecution and the appeal should be dismissed. It was submitted that the Appellant’s actions of touching the Complainant’s breasts and genitals and kissing her were deliberate and intentional and there was no justification why he had contacts of that nature with a minor.
On whether the Trial Magistrate complied with the provisions of Article 50 (2) (g) & (h) of the Constitution the Respondent submitted that although the Trial Court failed to inform the Appellant of his right to legal representation, this was not fatal. That the right to legal representation under the Legal Aid Act was not absolute since the Appellant was not facing a capital offence. It was submitted that the Appellant took plea, participated in the trial and even cross examined witnesses and this demonstrated that he understood the charges he was facing and the severity of the offence. It was further submitted that the Appellant did not complain that he did not understand the proceedings and on 2nd November 2020 he was represented by an Advocate.
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are:
1. Whether the Trial Magistrate complied with Article 50 (2) (g) (h) of the Constitution 2010 when the Appellant was arraigned in court for plea and trial.
2. Whether the ingredients of the offence of indecent act was proved to the required standards.
This court has considered the evidence tendered in the trial court and established that when the matter first came to court plea was taken despite the fact that the court did not indicate the language the Appellant preferred to use during trial. When PW1 testified it is indicated she gave her testimony in luo language but there is nothing to show that the Appellant understood the said language which PW1 used to testify. PW2 and PW3 also testified in unknown language.
When the matter was taken over by Hon. Wairimu it is merely indicated ‘Directions under Section 200 CPC’ to which the Appellant responded
‘I would like to consult my Advocate.’
The Trial Magistrate did not indicate whether the application by the Appellant was granted or denied. It is simply indicated that the matter would proceed where it had reached after proceedings are typed.
This Appellant may have committed the offence herein but his trial faced a lot of hurdles by lack of being informed of his constitutional rights, failure to ask him the language he preferred to use, failure to allow the witnesses to be recalled at the time he had managed to hire an advocate and when the trial was taken over by another magistrate it is not shown if he was informed of the right to apply for recall of witnesses who had testified.
This court finds that the trial proceeded without compliance with the provisions of affording the Appellant assistance of an interpreter pursuant to Article 50(2) (m) of the Constitution as it was not indicated if the Trial Court made an inquiry as to the Appellant’s preferred language and the witnesses who testified used a language which could not be identified as understood by the Appellant.
On account of the above finding the conviction and sentence of the Appellant is not safe and cannot stand. The appeal has merit and is allowed. The conviction is quashed and sentence set aside. The Appellant is hereby set at liberty unless otherwise lawfully detained.
Right of Appeal within 14 days explained.
Dated, Signed and Delivered at Migori This 27th Day of June, 2025.
Particulars are that on the 1st Day of September 2020 at around 07.00hours at Oyani farm village Kamsaki Sub-Location, South Kanyamkago Location in Uriri Sub-County within Migori County the Appellant intentionally, wilfullt and unlawfully touched the chest, breast and vagina of C. A. a girl aged 9 years.
Based on the evidence of three (3) prosecution witnesses and the Appellant’s sworn testimony the trial magistrate convicted him and sentenced him to serve 15 years imprisonment.
The Appellant was dissatisfied with the whole decision and sentence of the Trial Magistrate and he filed his Memorandum of Appeal dated 19th December 2023 on the following grounds:
1. The Learned Trial Magistrate erred in law and fact by failing to comply with Article 50 (2) (g) (h) of the Constitution 2010.
2. The Learned Trial Magistrate erred in law and fact by not considering that the ingredients of the offence herein were not proved to the required standards.
Reasons wherefore the Appellant prayed that the conviction be quashed and sentence set aside, and any other order the court deems fit be granted.
Prosecution’s case was supported by three (3) witnesses who testified that the Appellant’s wife found him embracing the Complainant who had gone to their home to fetch milk and she raised alarm and called the mother of the Complainant and told her to ask the daughter what the Appellant was doing to her in the house. The Complainant’s mother had agreed with the Appellant to supply her with milk which the Complainant or her sister could pick every day between 6.00 to 7.00pm after coming from school. It was the Complainant’s evidence that whenever she went to pick milk the Appellant could touch her chest / breast and private parts while they were in his house. She also said the Appellant used to kiss her mouth but warned her that if she told anyone what he used to do to her he would kill her. The Complainant said that the Appellants wife woke up and found him kissing her and went to report to her mother.
The Complainant’s mother testified that on 1st September 2020 the Complainant had gone to collect milk as usual and when she heard someone shouting and she saw it was the Appellant’s wife who was standing by her well and shouting and called the Complainant to come and explain to her mother what had happened and she demanded that they take action against the Appellant for having been found embracing the Complainant. That the Complainant’s father and reported the matter at Oyani Police Station and the police went to the scene and instructed them to go to Uriri Sub-County Hospital where PW1wasexamined. That when PW1 calmed down she was able to tell PW2 how the Appellant used to indecently touched her breasts and private parts and that he had warned to kill her if she revealed what he was doing to her.
When the Appellant was placed on defense he admitted that he used to supply milk to the Complainant’s family and that the Complainant could collect the milk between 6.00 and 7.00 a.m when schools are closed. The Appellant also admitted that on 1st September 2020 the Complainant had gone to collect milk and that his wife woke up and started accusing him of touching the child. The Appellant denied having committed the offence and called a character witness a pastor who admitted he could not know everything about another.
PW3 testified that he took over investigations herein when the initial Investigating Officer went on transfer. He said the Appellants wife was not caused to recod a statement as she is not compellable. He said the Complainant and the Appellant were the only eye witnesses to what happened. PW3 said there was no relationship between the Appellant and the Complainants family apart from supply of milk. PW3 said the Complainant confirmed the indecent acts had been going on for some time whenever she went to collect milk.
This appeal was canvassed by written submissions.
The Appellant in his submissions contended that he was not informed promptly of his rights under Article 50(2) (g) & (h) of the Constitution and he was also not supplied with witness’ statements as stipulated under Article 50(2)(b) & (c) of the Constitution.
The Appellant also submitted that when his advocate came on record and applied for recall of PW1 & 2 the Trial Court declined to grant the application on lame excuse that the witnesses could not be traced despite the Chief indicating that they had relocated. The Appellant said that by declining to recall the said witnesses the Trial Magistrate was promoting an illegality by relying on the proceedings which were illegal from the onset since they were against the provisions of the law.
The Appellant argued that the ingredients of the offence of indecent act were not proved as the same does not include kissing.
The Appellant said that the offence was fabricated by his wife and failure to call her as a witness was an infringement to his constitutional right to fair hearing.
The Respondents in submissions dated 5th June 2025 opposed the appeal and urged that the appeal be dismissed. It was submitted that the ingredients of the offence of indecent act was proved to the required standards by the prosecution and the appeal should be dismissed. It was submitted that the Appellant’s actions of touching the Complainant’s breasts and genitals and kissing her were deliberate and intentional and there was no justification why he had contacts of that nature with a minor.
On whether the Trial Magistrate complied with the provisions of Article 50 (2) (g) & (h) of the Constitution the Respondent submitted that although the Trial Court failed to inform the Appellant of his right to legal representation, this was not fatal. That the right to legal representation under the Legal Aid Act was not absolute since the Appellant was not facing a capital offence. It was submitted that the Appellant took plea, participated in the trial and even cross examined witnesses and this demonstrated that he understood the charges he was facing and the severity of the offence. It was further submitted that the Appellant did not complain that he did not understand the proceedings and on 2nd November 2020 he was represented by an Advocate.
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are:
1. Whether the Trial Magistrate complied with Article 50 (2) (g) (h) of the Constitution 2010 when the Appellant was arraigned in court for plea and trial.
2. Whether the ingredients of the offence of indecent act was proved to the required standards.
This court has considered the evidence tendered in the trial court and established that when the matter first came to court plea was taken despite the fact that the court did not indicate the language the Appellant preferred to use during trial. When PW1 testified it is indicated she gave her testimony in luo language but there is nothing to show that the Appellant understood the said language which PW1 used to testify. PW2 and PW3 also testified in unknown language.
When the matter was taken over by Hon. Wairimu it is merely indicated ‘Directions under Section 200 CPC’ to which the Appellant responded
‘I would like to consult my Advocate.’
The Trial Magistrate did not indicate whether the application by the Appellant was granted or denied. It is simply indicated that the matter would proceed where it had reached after proceedings are typed.
This Appellant may have committed the offence herein but his trial faced a lot of hurdles by lack of being informed of his constitutional rights, failure to ask him the language he preferred to use, failure to allow the witnesses to be recalled at the time he had managed to hire an advocate and when the trial was taken over by another magistrate it is not shown if he was informed of the right to apply for recall of witnesses who had testified.
This court finds that the trial proceeded without compliance with the provisions of affording the Appellant assistance of an interpreter pursuant to Article 50(2) (m) of the Constitution as it was not indicated if the Trial Court made an inquiry as to the Appellant’s preferred language and the witnesses who testified used a language which could not be identified as understood by the Appellant.
On account of the above finding the conviction and sentence of the Appellant is not safe and cannot stand. The appeal has merit and is allowed. The conviction is quashed and sentence set aside. The Appellant is hereby set at liberty unless otherwise lawfully detained.
Right of Appeal within 14 days explained.
Dated, Signed and Delivered at Migori This 27th Day of June, 2025.