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JudgmentMACKTON NGALA BAHAMU ALIAS MATANO VS ODPP6 min read

MACKTON NGALA BAHAMU ALIAS MATANO VS ODPP

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM CRIMINAL CASE NUMBER S.O. NO. 52 OF 2017 IN THE CHIEF MAGISTRATE’S COURT AT MOMBASA (HON. DAVID O. ODHIAMBO [S.R.M])

RULING

Introduction

  1. The Applicant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006 with an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was tried and convicted on the main charge by Hon. D.O. Odhiambo, Senior Resident Magistrate who sentenced him to 15 years imprisonment.
  2. Being dissatisfied with the said Judgement, on 13th September, 2023, the Appellant lodged an appeal herein dated the same day. He relied on (8) grounds of appeal. The Court directed that the parties file their submissions in support and opposition of the Criminal Appeal. This Court reserved the  matter for judgment herein.
  3. IN THE MEANTIME, the Appellant filed an application dated 12th January, 2024 seeking the following orders:-
  4. Spent
  5. THAT this Honourable Court be pleased to direct that additional evidence be taken in this matter, namely the evidence of a written agreement involving the victim, the child and a third party.
  6. THAT this Honourable Court be pleased to allow the Appellant/ Applicant to call for additional documentary evidence which relates to the paternity of the child born out of the alleged defilement.
  7. THAT to affect prayer three above this Court be pleased to order for a new DNA test to be carried out between him and the child born out of the alleged defilement and use his evidence in the appeal herein.
  8. The Application was supported by the 8 paragraphed affidavit sworn by Jared O. Magolo Counsel for the Appellant on the same day as the application where he contended that the Appellant’s case was that with the new evidence, he may not be the father of the child of the complainant. The evidence to support this was not within their possession. With emergence of this new evidence a second DNA would be necessary to conclusively prove the paternity of the child born out of the alleged defilement.

Analysis and Determination

  1. The Trial Court was well within its mandate and power to do so as the proviso to Section 124 of the Evidence Act Cap 80 (Laws of Kenya) stipulates that:-

“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, 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.”

  1. Having said so, Section 358 (1) of the Criminal Procedure Code (Laws of Kenya) empowers the High Court hearing an appeal from the subordinate court to call for additional evidence to be taken to assist it in coming to a just determination of a matter before it.
  2. The said Section 358(1) of the Criminal Procedure Code states as follows:-

“In dealing with an appeal from a subordinate court, the High Court, if it thinks additional evidence is necessary, shall record its reasons, and may either take such evidence itself or direct it to be taken by a subordinate court.”

  1. As was held in the case of Elgood – Versus -  Regina [1968] EA at page 274, new and/or additional evidence must be one that was not available at the time of trial or that it was relevant to the matter before the appellate court and was of interest or that the same would influence or impact the result of the verdict. Notably, Section 36 of the Sexual Offences Act Cap 62A (Laws of Kenya) states that:-

“Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may(emphasis court)direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.

  1. In the case of Laban Mutua – Versus - Republic [2016] eKLR, the Court of Appeal held that whereas DNA testing pursuant to Section 36 of the Sexual Offences Act was not a mandatory requirement, where a person had been charged with committing a sexual offence, the court could (emphasis court) direct that appropriate sample be taken from the accused for purposes of scientific testing including a DNA test, in order to gather evidence and to ascertain whether or not the accused committed the sexual offence he had been accused of.  This is a discretionary power of the appellate court. 
  2. It was apparent from the judgement of the Trial Court that it considered the evidence of PW 3, the examining doctor PW 2 was pregnant. Notably, it would not have been possible to determine with certainty whose child PW 2 was carrying at the time of the trial in as much as PW 4 the Government chemist testified to the paternity of the child indicating that the analysis showed the Appellant to be the father of the child.
  3. The Appellant herein was sentenced to  serve fifteen (15) years imprisonment for an offence he avers he did not commit. THE Main evidence that was relied upon to convict him was the complainants oral evidence  and the fact that she was pregnant. The only one thing that can conclusively determine whether or not he was the one responsible  for the pregnancy is the DNA testing as the same would be largely be free from human error.
  4. This is indeed a deserving case where this court can invoke its powers under Section 358 of the Criminal Procedure Code with a view to ascertaining whether or not the Appellant committed the offence he had been charged with as a DNA test can dispose of this appeal based on scientific evidence.
  5. In the case of James Mwamba Mwandoe – Versus -  Republic [2016] eKLR, this very court allowed additional evidence to be taken by way of DNA samples being presented on appeal because there was a possibility of the outcome of DNA testing impacting on the verdict of the lower court therein which could have led to the acquittal of the appellant therein.

Conclusion and Disposition

  1. The final decision as to whether or not it ought to quash the conviction and set aside the sentence that was meted upon the Appellant by the Trial Court or whether it should affirm the conviction and sentence has been put on hold pending the DNA testing of the Appellant, PW 2 and the child who may have been born out of the said union.
  2. In this regard, this Court hereby directs that the matter be mentioned on 3rd March, 2025 for the Respondent to trace the whereabouts of PW 2 with a view to establishing if she gave birth to a baby and if so, for the court to give directions on the taking of samples of the Appellant, PW 2 and the child if any for purposes of DNA testing and/or for further orders and/or directions in light of the evidence that has come to the attention of the Respondent on the written agreement involving the victim, the child and a third party.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …30th ….…………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. Bebora, Court Assistant;

……MR NGIRI……………..………State Counsel;

……MR MAGOLO FOR THE ………Applicant

    MACKTON NGALA BAHAMU ALIAS MATANO VS ODPP MACKTON NGALA BAHAMU ALIAS MATANO VS ODPP