1. This appeal emanates from the judgement, conviction and sentence of Hon. E. Tsimonjero, SRM delivered on the 15th June, 2023 in Isiolo Sexual Offence Case no. E004 of 2022.
2. The Appellant was charged in the first Count with the offence of rape contrary to Section 3(1)(a) and 3(1)(c) as read with Section 3(3) of the Sexual Offences Act, No. 3 of 2006.
3. The particulars of the offence as stated in the charge sheet were that on the 24th of May, 2022 at Bisan Biliqo Location in Merti Subcounty within Isiolo County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of CR (name withheld) without her consent.
4. The Appellant was in the alternative count faced with a charge of committing an indecent act with an adult contrary to Section 11A of the Sexual Offences Act, No. 3 of 2006.
5. The prosecution alleged in the particulars to the alternative charge that on the 24th of May, 2022 at Bisan Biliqo Location in Merti Subcounty within Isiolo County, the Appellant intentionally and unlawfully touched the vagina of CR with his penis without her will.
6. In the second count, the Appellant was charged with the offence of grievous harm contrary to Section 234 of the Penal Code, Cap 63 Laws of Kenya.
7. It was stated in particulars in the charge sheet that on the 24th of May, 2022 at Bisan Biliqo Location in Merti Subcounty within Isiolo County, the Appellant unlawfully did grievous harm to CR.
8. The Appellant was in the third count charged with the offence of stealing contrary to Section 275 of the Penal Code.
9. The particulars of the offence to the third count were that that on the 24th of May, 2022 at Bisan Biliqo Location in Merti Subcounty within Isiolo County, the Appellant ustole Ksh.1,500/-, the property of CR.
10. The Appellant denied all the charges and a full trial was conducted. The prosecution case was founded on the evidence of six witnesses. The defence evidence was based on the Appellant’s unsworn testimony.
11. The Appellant was convicted on the first count (the charge of rape) and the third count (the charge of theft). He was acquitted on the charge of grievous harm.
12. The Appellant was subsequently sentenced to serve 8 years imprisonment on the charge of rape with the trial court ordering that the said sentence would run from 25th May, 2022, being the date that he took plea and in consideration of the fact that he had remained in custody during the entire period of his trial. With respect to the charge of stealing, the trial court sentenced him to the period that he had been in remand.
13. Aggrieved with the conviction and sentence on the charge of rape, the Appellant proffered the instant appeal. There are six grounds of appeal presented by the Appellant vide his Petition of Appeal filed on 20th June, 2023.
14. The appeal was canvassed by way of written submissions filed by the Appellant and oral submissions made by Ms. Rotich, learned Prosecution Counsel.
15. Although the Appellant presented six grounds of appeal, his submissions addressed only two grounds, i.e.:
a. That the learned trial Magistrate fell into error when imposing the sentence of 8 years by failing to consider the period that the Appellant had remained in remand custody as his trial proceeded.
b. That the learned trial Magistrate fell into error by failing to inform the Appellant of his constitutional right to choose, and be represented by an advocate and that as such, his right to a fair hearing under Article 50(2)(g) of the Constitution was violated.
16. I have had the occasion to peruse and consider the Petition of Appeal, the submissions by the two sides, the Record of Appeal and the lower court record.
17. As the Appellant’s submissions only addressed the two grounds above, I will limit the present appeal to the same.
18. All considered, the issues that I am now tasked to determine are as follows;
a. Whether the learned trial Magistrate infracted Section 333(2) of the Criminal Procedure Code by failing to consider the time that the Appellant had remained in remand custody and the effect thereof, if any on the sentence of the trial court.
b. Whether the learned trial Magistrate failed to inform the Appellant of his constitutional right to choose, and be represented by an advocate and whether such failure, if any, violated the Appellant’s right to a fair hearing under Article 50(2)(g) of the Constitution and the effect thereof, if any, on the conviction and sentence.
19. With regard to the question whether the learned trial Magistrate infracted Section 333(2) of the Criminal Procedure Code by failing to consider the time that the Appellant had remained in remand custody and the effect thereof, if any on the sentence of the trial court, I note from the record that the learned Magistrate observed and expressed himself thus:
Count 1: The Accused to serve a prison term of 8 years with effect from 25th May, 2022 when the plea was taken.
Count 2: The Accused has been in custody for one year and one month. The period thus served is sufficient.
20. With regard to that issue, I do not find it difficult, considering what the trial court recorded as reproduced above, to reach the conclusion that the learned trial Magistrate indeed considered the period that the Appellant had spent in remand custody. That is why he ordered the sentence in count 1 to run from the date that the Appellant was remanded awaiting conclusion of his trial. It is again for the same reason that he found that the period that he had been in custody was sufficient in respect of count 2. The first ground therefore fails.
21. Appellant herein challenged his conviction on the second ground that the trial court did not inform him of his right to choose, and be represented by an advocate and that as such, his right to a fair hearing under Article 50(2)(g) of the Constitution was violated.
22. On that, the learned Prosecution Counsel Ms. Rotich submitted that the Appellant was informed of his right to legal representation. However, it is instructive from the record of the trial court that there is nowhere the learned trial Magistrate recorded that the Appellant was informed of that right.
23. Article 50(2)(h) provide as follows:
50(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.
(Underlined emphasis).
24. It is mandatorily required under the said constitutional provision that the trial court promptly informs an accused person of his right to counsel so that he makes an informed decision whether not to procure the services of an advocate or may qualify to apply for legal aid. Under Article 25 of the Constitution, the right to a fair trial is one of the fundamental rights and freedoms that may not be limited.
25. In the case of Chacha Mwita v Republic Criminal Appeal No 33 of 2019, Mrima J. observed as follows of the above right.
“Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett v Greyhound Racing Association [1968] 2 All ER 545 Lord Denning presented himself thus: -
‘It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.”
In South Africa in Fraser v ABSA Bank Limited 966/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the constitutional court had the following to say:
“Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation….”
In Kenya, the Supreme Court in Petition No 5 of 2015 Republic v Karisa Chengo & 2 others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows:
“the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more.”
26. Nyakundi J. in Joseph Kiema v Republic [2019] eKLR stated as follows on the right under Article 50(2)(g):
“……it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate, one may be appointed at the expense of the state. It (the court record) must show that the court did take the profile of the accused person before the trial commenced……”
27. As earlier stated herein, I have perused the record and it is evident that the trial court did not inform the Appellant of his right to counsel. Failure by the court to comply with the said constitutional requirement rendered the trial a nullity. Indeed, that was the holding in Chacha Mwita (supra) and Joseph Kiema (supra) and Bernard Mwita Salima v Republic [2020] eKLR. I say so because as we have seen above, the right to a fair hearing falls among those rights from which, under the Constitution, there can be no derogation.
28. Having found that the trial was a nullity for failure by the court to inform the Appellant of his right under Article 50(2)(g) of the Constitution. I hereby allow the appeal on that ground and proceed to quash the conviction on the first and second counts and set aside the sentences of 8 years on the first count. With regard to the ssentence on the second count, as the Appellant’s remand period was considered to be sufficient punishment, I will make no order in respect thereof.
29. This court is now required to determine whether a retrial should be ordered or an acquittal.
30. In the case of Nicholas Kipngetich Mutai v Republic [2020] eKLR the Court held that a retrial should be ordered only where the interest of justice so requires.
31. In the case of Ahmed Sumar v R [1964] EALR 483, the Court stated as follows as concerns the issue of retrial in criminal cases:
“It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered.”
(Underlined emphasis).
32. Considering the seriousness of the offence that the Appellant was charged with in the first count, the advanced age of the survivor of the offence (84 years old) and further taking into account that the prosecution offered strong evidence and that the failure to comply with Article 50(2)(g) fell on the part of the court, it is my persuasion that the interests of justice will be best served if a retrial is held in respect of the first count.
33. Regarding the second count, the Appellant will stand prejudiced if a retrial is ordered as he may be subjected to double jeopardy, having served sufficient time courtesy of the remand period. I therefore proceed to acquit him on the second count.
34. To that end, I order that the Appellant be presented before Isiolo Chief Magistrate’s Court on 19th February, 2025 for retrial on the first count, before a court presided over by a Magistrate other than Hon. E. Tsimonjero, SRM.
35. In the intervening period, he will be handed over by the Kenya Prison Authorities to Merti Police Station, where he will be remanded awaiting his presentation before Isiolo Chief Magistrate’s Court.
36. Both the appeal and the lower court files to be transmitted to the Deputy Registrar, Meru High Court, apace.
DELIVERED (virtually), DATED & SIGNED this 13th February, 2025.
JOE M. OMIDO
JUDGE
For the Appellant: Present.
For the Respondent: Mr. Omooria.
Court Assistants: Mr. Ngoge & Mr. Juma.