Nambianga v Republic (Criminal Appeal 113 of 2019)  KEHC 14013 (KLR) (13 October 2022) (Judgment)
Neutral citation:  KEHC 14013 (KLR)
Republic of Kenya
Criminal Appeal 113 of 2019
DK Kemei, J
October 13, 2022
Haron Sakali Nambianga
1.The appellant was charged before Bungoma Chief Magistrates’ Court in Criminal Case Number 954 of 2015 for an offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act no 3 of 2006. The particulars of offence were that on April 18, 2015 at [particulars withheld] area, within Bungoma County, intentionally and unlawfully attempted to cause his penis penetrate the vagina of BS a child aged two (2) years.
2.In the alternative, the appellant faced a charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the charge were that on the same day and place he intentionally and unlawfully caused his penis to come into contact with the vagina of BS a child aged two (2) years against her will.
3.He denied both charges. After a full trial, he was convicted on the alternative count of indecent act and sentenced to serve 10 years imprisonment.
4.Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal, relying on the following amended grounds –i.That the learned magistrate erred in law and fact in failing to comply with section 200 of the Criminal Procedure Code.ii.That the learned magistrate erred in law and fact in failing to find that there was failure to comply with section 210 and 211 of the Criminal Procedure Code.iii.That the learned magistrate erred in law and fact in failing to take cognizance of the pre-charge violation of the personal liberty of the appellant contrary to his rights under article 49 (1) of the Constitution of Kenya, 2010 to be brought before a court as reasonably practicable and not later than twenty four hours after being arrested and the marked failure of the police to comply with section 36A of the Criminal Procedure Code as the appellant had been held in police custody from April 19, 2015 to April 21, 2015 prior to being arraigned in court.iv.That the learned magistrate erred in law and fact in failing to find that no medical evidence of the required standard existed to convict the appellant for the offence of attempted defilement same to the offence of indecent act with a child.v.That the learned magistrate erred in law and fact in failing to find that the offence of indecent act was not proved beyond reasonable doubt.vi.That the learned magistrate erred in law and fact in failing to draw inference against the prosecution over the failure to call several prosecution witnesses as laid down in Bukenya vs Uganda (1972) EA 549vii.That the learned magistrate erred in law and fact in failing to comply with article 50 (2) (g) and (h) of the Constitution of Kenya, 2010, right to fair trial as prior to commencement of the trial the court did not inform the appellant of the right to be represented by an advocate and to be considered for assignment of one at the expense of the state considering substantial injustice resulting to the appellant.viii.That the learned magistrate erred in law and fact in failing to follow the Judiciary Sentencing Policy Guidelines and failing to find that the imposition of the minimum mandatory sentence without the option of fine of Kshs 50,000/= the child being below five years negated the entitlement and essence of mitigation which was provided for in the law.
5.Both parties filed and exchanged their written submissions which I have perused and considered.
6.This being a first appeal, I have to start by reminding myself that I am required to evaluate the evidence on record afresh and come to my own independent conclusions and inferences. (see Okeno –vs- Republic  EA 32)1.I have re-evaluated the evidence on record. In proving their case, the prosecution called five witnesses. PW1, CSS, told the court that she is the mother of the complainant. While at her shop on April 18, 2015, the complainant was in the house with her father. While at the shop the appellant, a watchman at a nearby hardware, informed her that he left with her husband and that the complainant had followed them. She heard the sound of a child crying and on following the same sound she found the complainant behind the hardware with the appellant. The complainant had on a red trouser, blue and white dress. She found that her daughter didn’t have on her red trouser and that she was on the legs of the appellant who was then seated akimbo on the stairs. The complainant was in the middle of his legs and that the appellant had his trousers on but they were unzipped. She saw sperms and she quickly ran to alert the complainant’s father. On observing the complainant, she saw sperms in between her legs and she quickly rushed her to the hospital. When her husband arrived, he started to fight with the appellant but he was able to run away. She told the court that she knew the appellant for two months since he started to working at the hardware. On cross-examination, she told the court that the act took place behind the stairs at the hardware. She denied the existence of bad blood between the appellant and her family.2.According to PW2, ESB stated that he is the father of the complainant. He recalled that on April 18, 2015 at about 6.30 pm while at home he met the appellant and informed him that they go and stay at the hardware for awhile as the people spraying ant repellant carried out their job. He later left the complainant with the appellant as he went to open his door. The complainant was then wearing a red trouser and a white blue dress. He stated that his wife (PW1) later rushed to the house and urged him to come and see what the appellant was doing to their daughter. He quickly rushed to where he had left them and found the complainant was not wearing her trouser and on observing her private parts, he noticed that the appellant had poured his sperm on her. He went in search of the appellant and on finding him he confronted him on what he had done to his daughter and he suggested to him that they discuss the matter privately and further informed him that the matter will be handled by the village elder and when the appellant attempted to run, he held onto him but the appellant threw him off and he remained with his jacket as he ran away. He stated that he had known the appellant for about three months and that he reported the matter to the police. On cross-examination, he told the court that they were seated behind the hardware. On re-examination, he told the court that he found the appellant at the front of the hardware after the act, and who was wiping himself on the fly area of his trouser.3.PW3, Dr Philip Kosgei, testified that he is attached at Bungoma County Hospital and proceeded to give his testimony on the document filled by Dr Adoka who was out of station at the time of the hearing. He stated that the complainant had been brought to the hospital with an allegation of having been defiled by somebody known to her. On examination it was observed that her hymen was intact and that there was no other abnormal discharge. The laboratory examination showed some pus cells which showed there was infection in the urine. They found spermatozoa in her urine. The P3 form was produced as Pexhibit 4. An age assessment conducted established that the complainant was two years old by then and which was produced as Pexhibit 3. The complainant’s treatment card was also produced as Pexhibit 2. On cross-examination, he stated that the sperms found on the complainant was not subjected to a DNA analysis even though samples were collected for that purpose.4.PW4, Bernard Wamalwa Osianju, testified that he was a member of the Community Policing in [particulars withheld]. He recalled that on April 18, 2015 while at his butchery, he heard screams and came outside to investigate the problem. He found people attacking the appellant who successfully managed to slip away from them but they followed him and arrested him. He quickly intervened and pushed him into the butchery and proceeded to call the OCS He added that the mob attacked the appellant because he had raped a child. He was able to identify the person he rescued as the man in court seated in the dock. On cross-examination, he stated that he did not witness the incident and that he helped to rescue the appellant from the angry mob that was baying for his blood.5.PW5, No 5369 CPI Ibrahim Yusuf, testified that he was the investigating officer in the matter. He recalled that on April 19, 2015 as he perused the Occurrence Book, he found a report made on April 18, 2015 and by then the appellant was already in custody. The allegation was attempted defilement at [particulars withheld]. The complainant was two years old. The OCS ordered him to investigate the same and that he summoned the parents of the complainant who showed up with the complainant. He took the statement of the parents. He issued an P3 form and accompanied them to the hospital for examination. He produced the clothes the complainant was wearing as Pexhibit 1A for the trouser and Pexhibit 1B for the skirt that had been lifted up above the knees. He added that the suspect he arrested was the appellant in the dock. On cross-examination, he stated that the appellant was arrested while fleeing from the scene. He also stated that the complainant’s clothes that were recovered were not taken to the government chemist. He also stated that the clothes were not dusted for finger prints. He also stated that he established that there was an attempted defilement.6.After the close of the prosecution’s case, the appellant was found to have a case to answer and was duly placed on his defence whereupon he opted to tender a sworn testimony. He stated that the complainant’s father (PW2) had been his colleque as they worked as security guards and that there developed a grudge between them whereby he had reported him to his superiors whereupon he was dismissed from employment and hence hatched a plot to fix him. He stated that the said father to the complainant managed to lure him into the village and set the villagers upon him and who viciously attacked him and that the police later came up with trumped up charges. On cross-examination, he maintained that the father of the complainant had been engaged in theft even as he worked as a supervisor before being fired by his employer and hence he began harbouring a grudge against him for exposing his criminal activities.
7.Having carefully considered the appellant’s amended grounds of appeal, the evidence adduced in the lower court and submissions for and against the appeal, the main issue for determination is whether the prosecution proved its case against the appellant beyond reasonable doubt to warrant or sustain a conviction for the offence of attempted defilement as charged.
8.As a preliminary point, I will consider the point raised by the appellant that his right to a fair trial was violated as he was not only entitled to be informed, promptly, of his right to legal representation, but also to have the state assign him an advocate if he needed one as he could not afford to pay for one.
9.The right to legal representation is founded upon well-known principles, doctrines and concepts which include access to justice, right to fair trial, the rule of law and equality before the law. This fundamental right is recognized in a myriad of statutes due to its importance in ensuring that the process is just, credible and transparent. Thus, legal representation is a cardinal principle of fair trial. The criminal justice system in Kenya places the right to fair trial at a much higher pedestal, and in that respect and in the context of this appeal, the appellant is placed in somewhat advantageous position as he is ably represented by an advocate of his own choice. Legal representation is a fundamental constitutional dictate envisaged under article 50 of the Constitution of Kenya 2010. Relevant in this case is article 50(2) (g) (h) which provides as follows: -
10.Generally, article 50(2) (g) of the Constitution guarantees a fair trial to every accused person which includes the right to be represented by an advocate and to be informed of that right promptly. This right is implemented under the Legal Aid Act, 2016 which came into force on May 10, 2016.
11.The above-mentioned Act in its preamble states that, its focus is to:
12.Section 43 of the Act lays down the duties of the court before which an unrepresented accused person is presented. The section provides as follows:
13.The key words under article 50(2) (g) and (h) of the Constitution and section 43 of the Legal Aid Act, 2016 are: “to be informed promptly of the right”. In order to fully comply with the dictates of article 50(2)(g) and (h) and section 43(1) of the Legal Aid Act, trial courts as a matter of constitutional duty and the interest of justice, ought to give the information to the accused person and/or make a preliminary inquiry at the earliest opportunity possible on the right in question.
14.A determination must be made as to whether or not the accused person would require legal representation before commencing with the hearing of the case. The earliest opportunity therefore should be at the time of plea taking; the first appearance before plea is taken or at the commencement of the proceedings, that is at the first hearing. The trial court is under a duty to look at the whole indictment and satisfy itself that substantial injustice will not be occasioned that would inform the court’s decision as regards whether or not to proceed to the hearing with an unrepresented accused person. If through the above scrutiny, the court finds that substantial injustice would be occasioned, it would then move from the provision under article 50(2) (g) to 50(2) (h) and make a finding and/or orders to the effect that a state funded counsel be provided to the accused person for not only justice to be done but for justice to be seen as having been done.
15.Where the trial court finds that substantial injustice would be occasioned if the accused person proceeds to the hearing of the matter unrepresented, the court must have an advocate assigned to the accused person by the state at its expense, and the court should or must once again inform the accused of this right promptly pursuant to article 50(2) (h) as read with section 43(1) (b) 0f the Legal Aid Act no 6 of 2016.
16.It is instructive to note that the trial record of proceedings must indicate or communicate that the accused was duly made aware of his rights under article 50(2) of the Constitution and that the process expounded above was conducted where it is relevant. The court is the custodian of law and ought to ensure that these constitutional safeguards are jealously protected and upheld at all times. Therefore, it is incumbent upon the courts to ensure that the trial is judicious, fair, transparent and expeditious as well as ensuring compliance with the basic rule of law.
17.In criminal matters, there is a very big distinction between an unrepresented and a represented accused person. This follows the logic that the adversarial system is so complex that an accused devoid of requisite legal skills may find it difficult to comprehend the trial proceedings.
18.However, the right as regards legal representation is not absolute and there are instances where the same can be limited. This was succinctly dealt with in this case of S v Halgryn 2002, (2) SACR 211 ((SCA) paragraph 11, Herms JA stated that:
19.A closer reading of article 50(2) (h) of the Constitution and section 43(1) (b) of the Legal Aid Act, 2016 on the right to legal representation reveals that an accused person’s entitlement to legal representation at the expense of the state is not automatic but qualified. Thus, this right is not an entitlement to every accused person. It therefore appears from the above provisions of law that legal representation at the expense of the state is only available where there is likelihood of substantial injustice to occur to the detriment of an unrepresented accused person. It is therefore incumbent upon the accused person to prove that unless he or she is assigned an advocate by the state, substantial injustice would occur.
20“Substantial injustice” is not defined in the Constitution. Thus, there is no legal definition of the same. Neither does the Constitution enumerate circumstances under which an accused person is entitled to a state funded counsel. In an attempt to define the concept of substantial injustice, both local and foreign jurisprudence provide guidance on the issue.
21.The Court of Appeal in the case of Macharia v R after reviewing the past and current law stated that as follows:
22.In the case of Karisa Chengo & 2 others v R, CR Nos 44, 45 & 76 of 2014, it was stated:
23.The Supreme Court in the case of Republic v Karisa Chengo (supra) also held that the right to legal representation is a fundamental ingredient of the right to a fair trial.
24.In view of the principles expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a court ought to consider in addition to the relevant provisions of the Legal Aid Act, various other factors which include: the serious or nature of the offence in question thus serious offences may attract public interest to the extent that the public may require some form of representation to be accorded to the accused person to conduct his own defence; the severity of the sentence, thus legal representation is to be provided where the offence carries a death sentence and or life imprisonment ;the ability of the accused person to pay for his own legal representation; whether the accused is a minor, the ability of the accused to comprehend the court proceedings thus the literacy of the accused and the complexity of the case which is discernible from the issues of fact and law which may not be comprehended by the accused.
25.In the instant appeal, the appellant was convicted of the offence of indecent act and sentenced to ten years’ imprisonment. I have gone through the trial record and nowhere does it communicate whether or not the appellant was informed of his rights under section 43 (1) of the Legal Aid Act and article 50(2)(h) and (g) of the Constitution regarding the right to legal representation. Furthermore, the appellant was charged with an offence which carries a severe sentence of imprisonment but he was not informed of or accorded his right to legal representation as required by law. In that regard, there seems to be some injustice occasioned to him. However, it is a common knowledge that the courts are faced with myriads of cases and that it is only a few that are sieved and selected for legal representation. The framers of the constitution had envisaged that resources would be available so that the Legal Aid Act would properly achieve the objective. Due to the limited resources, then legal representation for accused persons would then be affected. It is only in murder case that the state is currently providing legal representation to murder suspects. The other cases are currently considered depending on the circumstances of each case. I find that the appellant’s failure to be accorded legal representation did not prejudice him in any way as he was able to participate in the trial and cross-examined witnesses as well as conducting his defence. At no time did the accused raise any issue regarding his inability to conduct his case or even seek that he be accorded legal representation. He is raising the issue at the tail end of the matter when he has already started served almost half his sentence. This ground of appeal must fail.
26.On non-compliance with section 200, 210 and 211 of the Criminal Procedure Code, section 200(3) of the Criminal Procedure Code gives guideline on how a succeeding magistrate in a case should proceed. It provides: -
27.On perusal of the trial court proceedings I agree with the submissions of the respondent that evidence was only taken by the final magistrate who was Hon EN Mwenda and the charges were read afresh to the appellant before the court proceeded to record the testimony of the first witness. In this case since none of the preceding magistrates recorded any evidence, this proviso is not applicable in this instant appeal.
28.Lastly, I will address the ground raised by the appellant with respect to section 210 and 211 of the Criminal Procedure Code which provide:210.Acquittal of accused person when no case to answer211.Defence(1)At the close of the evidence in support of the charge, and after hearing such summing up, submission or argument as may be put forward, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the court shall then hear the accused and his witnesses and other evidence (if any).(2)If the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the accused person, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process, or take other steps, to compel the attendance of the witnesses.”
29.The trial record demonstrates that the learned magistrate made a ruling that a prima facie case had been established against the appellant. He was then put on his defence. The record indicates as follows: “Directions under section 211 Criminal Procedure Code.” What comes after is the appellant is recorded as having stated that he would give unsworn evidence and call no witnesses. The appellant proceeded to request the court to explain to him what section 211 meant and he chose to give a sworn testimony and did not call witnesses. This right is fundamental to an accused person and can be the basis of an unfair trial process where there is no compliance. The court must record and proceed in the manner that an accused person elects. The Court of Appeal in Martin Makhakha vs Republic  eKLR explained that: -
30.The appellant stated that the substance of the charge and particulars were never read to him. I am doubtful that this was indeed the case owing to the fact that he even elected to give sworn evidence. One wonders how he would have known which options were available to him if indeed the court failed to explain the same to him. I refer to the Court of Appeal case of Kossam Ukiru vs Republic  eKLR, where it was stated that the failure by the trial court to record the exact words of the section 211 of the Criminal Procedure Code did not in any way prejudice the appellant. This settles the issue of non-compliance with section 210 and 211 of the Criminal Procedure Code.
31.Turning to the issue of whether the evidence of the prosecution met the threshold of proof, it is noted that the incident happened in broad day light. The mother of the complainant caught the appellant red handed in the act (flagrant delicto) and that she raised alarm and alerted her husband (PW2) and other villagers as she rushed the minor to hospital for medical checkup. The complainant’s mother noticed that the appellant had undressed the minor and that she was able to see some sperms on the complainant’s thighs. The minor was examined by the clinical officer (PW3) who confirmed the presence of spermatozoa in her urine which had an infection and that the minor was put on anti-retroviral treatment to prevent HIV infection. The treatment notes, P3 form and age assessment were issued to the patient which were produced as exhibits. The father to the complainant(PW2) and a member of the village community policing (PW4) pursued the appellant and managed to apprehend him and who was later handed to the police officers. The investigating officer (PW5) stated that his investigations revealed that there was a commission of an offence of an indecent act on the complainant. The evidence as a whole left no doubt that the three ingredients of the offence namely attempt to defile, identity of the appellant as the perpetrator and the age assessment of the complainant were established by the prosecution beyond any reasonable doubt. The appellant was apprehended at the scene of crime and that the attempted defilement was confirmed by the doctors who examined the complainant. The appellant’s defence was properly rejected by the trial court as it was quite clear that the appellant had indeed molested the minor. It was highly unlikely that the father of the complainant could use his young and vulnerable daughter as a victim of sexual act so as to settle scores with the appellant over some differences relating to their work as security guards. I am satisfied that the appellant committed the offence herein and hence the finding on conviction on the alternative charge of committing an indecent act on a child contrary to section 11(1) of the Sexual Offences Act.
32.On sentence, it is noted that the appellant was sentenced to ten years’ imprisonment. The appellant’s mitigation was duly considered by the trial court. A person convicted for such an offence is liable to serve a minimum sentence of ten years which can be enhanced to life imprisonment. The trial magistrate after taking into account all the factors gave a sentence of ten years’ imprisonment. Indeed, the complainant who was aged two years old was expected to be psychologically affected for the most part of her life. The appellant’s actions in preying on a young defenceless child were reprehensible and must be discouraged. It is also noted that the appellant is a first offender and hence the sentence imposed is suitable in the circumstances. The appellant did not manage to post bail and remained in custody throughout the trial and hence the period spent in custody must be factored and that the same shall commence from the date of arrest namely 18/4/2015.
33.In view of the foregoing and save only that the sentence imposed shall commence from the date of arrest namely 18/4/2015, the appeal on both conviction and sentence lacks merit and is dismissed.It is so ordered.
DATED AND DELIVERED AT BUNGOMA THIS 13TH DAY OF OCTOBER, 2022.D. KEMEIJUDGEIn the presence of:Harun Sakali Nambanga AppellantMukangu for RespondentKizito Court Assistant