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JudgmentRICHARD SAGANA VS The Republic7 min read

RICHARD SAGANA VS The Republic

High Court at Kisii High Court · · Odera Teresa Achieng



INTRODUCTION.

  1. The Appellant herein was charged with the offense of defilement contrary section 8 (3) of the sexual offense Act. Upon taking plea wherein he pleaded not guilty. The record indicates that on 12th September 2023, he made an oral Application seeking an order of the lower court that a DNA test be carried out as there was a child born out of the alleged defilement. The application was opposed by the Prosecution paternity not one of the elements required prove of defilement. 
  2. In its ruling delivered on 7th November, 2023, the trial court relying on the case of D.S VS Republic (2021) eKLR held that the fact of rape or defilement is not proved by way of a DNA test but by way of evidence. The learned trial magistrate further held that the Appellant would have an opportunity to cross-examine the witnesses to be presented before the court accordingly. The Learned trial magistrate thus refused to grant the Application.
  3. Dissatisfied by  the ruling of the trial court, filed a petition of Appeal dated 20th November, 2023. The  grounds of Appeal are that:
  4. The learned trial magistrate erred in law and in fact in dismissing the Appellant’s oral Application made on 12th September, 2023 requesting for a DNA test between the Appellant and the minor born out of the alleged defilement.
  5. The learned trial magistrate erred in law and fact in failing to properly address himself to the law on the tenor and import of the oral Application on 12th September, 2023.
  6. The decision of the learned trial magistrate violated the right of the Appellant herein to obtain necessary evidence to aid in his defense as set out under article 50 of the constitution of Kenya, 2010.
  7. The learned trial magistrate erred in law and fact in failing to take into account the evidential value of the DNA report sought in particular its ability to prove and disapprove the allegation set out against the Appellant.
  8. The ruling of the trial court was wholly erroneous and against the law.
  9. Based on the above grounds the Appellant prays that this appeal be allowed and the ruling of the learned trial magistrate set aside, varied and or quashed.
  10. This court directed that the Application be disposed of by way of written submissions and ordered the parties to file their submissions. The Appellants filed his written submissions while the Respondent failed to do so.

The Appellant’s submissions

  1. The learned counsel for the Appellant, Mr. Ochoki submitted that the court order dismissing an oral Application by the Appellant to have a DNA test carried on the child born out of the alleged defilement amounted to an infringement of the accused persons right to a fair hearing  under Article 50 (2) (c) Article 50  (2) (k). He contended that Article 50 (2) (c) requires an accused person  to be given adequate time to prepare his defense while Article 50(2) (k) which requires an accused person to be afforded an opportunity to adduce and challenge evidence.
  2. Mr. Ochoki underscored  that the intent of the Application was to aid dispelling any doubt as to the paternity of the child born out of the alleged defilement evidence that was necessary for the defense.   He submitted further that Section 36 of the Sexual offenses Act grants the Court powers to order for DNA tests to find out if the accused committed the crime or not. Mr. Ochoki argued that in as much as the state has a right to make such an Application under section 36 of the Sexual offenses Act the Applicant has a corresponding right to do so.

  1. In support of his submissions, Mr. Ochoki relied on the case of Boniface Kyalo Mwololo vs Republic (2016) eKLR and the case of Rogers Nyakundi Nyapara vs Republic (2020) eKLR.

DETERMINATION

  1. Having considered the grounds Appeal, the Ruling of the court and the written submissions of the Appellant I find that the sole issue of determination is whether the trial court erred in dismissing the Appellant’s Application to have a DNA Test carried on the minor born out the alleged defilement.
  2. The thrust of this Appeal is that the learned magistrate in his ruling erred by not allowing DNA Test to be carried on the minor born out of the alleged defilement to determine paternity. Section 36 (1) of the Sexual Offence Act which has been referred by the learned counsel as the basis upon which the Application before the trial court was made  provides as follows:-

‘(I) 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 direct that an appropriate sample or samples he 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. It is clear that the section 36 is not couched in mandatory terms. This was reiterated by the court of Appeal in the case In Robert Mutungi Mumbi v R, Criminal Appeal No. 52 of 2014, where it stated as follows-

“Clearly that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical evidence on DNA evidence is not the only evidence by which commission of a sexual offence may be proved.”

  1. Equally in the case George Kioji v Republic Criminal Appeal no. 270 of 2012 Nyeri it was observed as follows:

“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can he convicted for defilement. The court can convict if it is satisfied that there is evidence beyond any reasonable doubts that the defilement was perpetrated by the accused person. In deed under the proviso to section 124 of the Evidence Act Cup 80 laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone if the court believes the victim and records the season for that believe,”

  1. In the case of Rodger Nyakundi Nyapara v Republic [2020] KEHC 9155 (KLR) relied on by the Appellant Ngugi J (as he then was) set out conditions court ought to consider in exercising it discretion as to whether to allow and application for DNA test by the defense as follows;

“First, the Defense must establish a foundation for the request.  Just like in the case for compelled sample collection from the Accused Person, to obtain an order to collect samples from the victim, the Defence must demonstrate that there are reasonable grounds to believe that the DNA sampling procedure might produce evidence tending to confirm or disprove that the Accused Person committed the alleged offence.  As the US Supreme Court held  in Schmerber v California 384 US 770 (1966), “bodily intrusions cannot be allowed on the mere chance that the desired evidence might be obtained.”  For this condition to be met, the Accused Person must demonstrate that DNA evidence is central or an important pillar of the Prosecution case.”

29. Second, evidence collection which violates the dignity of the victim or in any other way offends evolving community standards of decency and fair play cannot be collected.  For example, in this case, needlessly subjecting the victim to collection of high vaginal swab or anal swab would be impermissible.  This is because the potential to collect evidence of high probative value is disproportionately low compared to the intrusiveness of the procedures and harm to the minor victim.

30. Third, there must be a showing that there exists a reasonable probability that a second DNA test would be of assistance to the Defence and that a denial of an order for re-testing would result in a fundamentally unfair trial.

  1. From the above precedent the greatest question is whether the appellant demonstrated that DNA evidence he is seeking is central or an important pillar of the Prosecution case or that the same will be of assistance to his defense. The learned counsel for the Appellant in his oral Application argued the prosecution had alleged that a child was born out of the defilement and thus a DNA Test was necessary to prove or disapprove the said allegation.. I have also noted the witness  statements  and medical evidence were not shown to the trial court   and the victim had also not testified by the time the application was being made . It is worth noting that in criminal cases , courts do not usually have the privilege of seeing the witness statements and documents before their production .   I find that the appellant did not   lay  a basis upon which the order could be granted by the trial court.
  2. From the forging and I find no reason in interfering with the discretion of the court in dismissing the Application made  by the Appellant for reasons that a determination of paternity is not a ground for prove of defilement.
  3. In the end therefore I find the Appeal unmeritorious and proceed to dismiss the same.
  4. It is so ordered. File is closed .


    RICHARD SAGANA VS The Republic RICHARD SAGANA VS The Republic