1.The appellant herein is Rodgers Omete Karakacha. He was convicted of the offence of defilement contrary tosection 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve 20 years imprisonment.
2.Aggrieved by the judgment, conviction the appellant filed this appeal vide Memorandum of Appeal dated 4/5/2022 and filed on May 5, 2022 setting out the following a grounds of appeal:1.That learned trial magistrate erred in law and in fact in failing to accord the Appellant a fair trial/hearing as is required under article 50 of the Constitution of Kenya, 2010, and the trial and eventual conviction and sentence of the appellant were vitiated, invalid, null and void.2.The learned trial magistrate erred in law by failing to warn and or accord the Appellant an opportunity of legal representation in view of the grave charges that were facing him.3.That the offence against the appellant was not proved beyond reasonable doubt.4.That there were gaps and inadequacies in the evidence which undermined the conviction.5.That the child’s mother’s testimony was unreliable, untrue and could not be relied upon to support the conviction while the Child’s testimony was unreliable as her testimony clearly showed she had been coached.6.That the Child’s testimony was at variance with the medical evidence relied upon.7.That the trial and eventual conviction of the accused was an affront to the doctrine of presumption of the innocence of the accused.8.That the medical evidence did not support the conviction and or sentence.9.That the trial, conviction and subsequent sentence of the appellant amounted to an affront of the appellant’s constitutionally guaranteed right to a fair hearing.
3.This appeal was heard by way of oral submissions. Mr. Ooro Ediwn Michael advocate appeared and submitted on behalf of the appellant while the respondent did not appear although the hearing date was fixed by consent on October 17, 2022.
4.Grounds 1&2 were argued jointly, grounds 3,6, & 7 argued together while grounds 4, 5, 8 & 9 were argued jointly.
5.Counsel for the appellant submitted that the appellant was not accorded a fair trial as stipulated in article 50(2)(g) and (h) of the Constitution.
6.He submitted that the right to choose and be represented by an advocate and to be informed of that right promptly and be assigned an advocate if substantial injustice would result and be informed of that right promptly was violated.
7.It was submitted that the appellant was self-represented from the date of taking plea on 24/8/2020 yet he was not accorded the right. Reliance was placed on Joshua Njiri v Republic  where the court considered the gravity of the offence and age of the accused.
8.On grounds 3, 6 & 7, it was submitted that the medical evidence did not support the conviction of the appellant. That although the offence allegedly took place at 6.30 pm and the complainant was promptly taken to hospital and examined, under sections B & C of the P3 Form, there was no evidence of defilement. Further, that the treatment summary form also show no injury and that it shows that the patient was in good emotional state.
9.In addition, that the laboratory results showed no sperm cells seen. It was submitted that the person who filled the P3 form was Catherine Adowa but the said P3 form was produced by a different person and yet no reasons were given for such changes, in a case where the accused was unrepresented.
10.Further submission was that the evidence on record did not support the charge. That no offence was committed on August 20, 2020 since PW1 gave a different day which is unknown.
11.It was further submitted that age of the complainant is unclear in that the birth certificate gives a different name of mother of the complainant from PW2 and yet to explanation was given why the mother of the victim was different from the one in the birth certificate.
12.It was submitted that the defence was plausible hence it should have behaved. Counsel urged the court to allow the appeal on conviction and sentence.
13.I have considered the grounds of appeal and the submissions by counsel for the appellant.
14.This being a first appellate court. The role of this court is well set out through judicial pronouncements to analyse and evaluate afresh all the evidence adduced before the trial court and draw my own independent conclusion bearing in mind that I neither heard nor saw the witnesses as they testified hence, give an allowance for that. This principle was espoused in the Okeno v Republic EA 32 case in which the Court of Appeal set out the duties of a first appellate court as follows:
15.A similar position was taken in the earlier case of Pandtya v Republic EA 336 in the following words:
16.Later in Kiilu & another v Republic KLR, 170 the Court of Appeal restated the role of the 1st appellate court and held that:
17.Revisiting the evidence adduced before the trial court, PW1 testified on Oath after the voire dire examination was administered on her and stated that her name was MA and a class 3 pupil at S. Primary School. She stated that on August 20, 2022 she had gone to her step mother’s house whom she called Mama Puri and was carrying the child of the Mama Puri called (P) so she put the child to sleep in the kitchen and she started going back to her home when on her way, she met the accused Rodgers who is a nephew to Mama Puri and he called her by name saying he wanted to tell her something then he asked her to give him something small but she declined and insisted that she was going so she went away and met her brother a class 4 pupil as their mother had left for the market.
18.The complainant stated that later on another day, she went back to the home of accused and after she had put the child to sleep, the accused grabbed her at the door and he had sex with her. Nobody was at home. That she ran to the market to inform her mother who reported to the police and the accused was arrested. She was taken to Yala Hospital by the police and her P3 form was filled and she was treated. She identified the accused in the dock her assailant.
19.In cross examination, PW1 stated that it was her mother who stated her age and could explain her differences in the ages stated in her P3 form and in her statement. She reiterated her evidence in chief and stated that the second time he grabbed her when she was at the kitchen and that is when she went to the market and informed her mother who went and reported to the police.
20.PW2 J.A. testified that PW1 was her daughter who was aged 10 years but she could not remember the date of birth which she confirmed that it was in the Birth certificate and showed 4.7.2009. She recalled that on 20.8.2020. She was at Sirembe Market selling peanuts when at about 7pm, the complainant went and informed her that Rodgers had defiled her. PW2 accompanied the complainant to the Police Station and to hospital after reporting the matter to Sirembe Police Post and that thereafter, the accused was arrested. The complainant was escorted to Yala Hospital the following morning. She stated that the accused was a nephew to her co-wife and she identified him in court.
21.PW3 Kennedy Shadrack a Clinical Officer from Nyadu produced a P3 form filled for the complaint, who was alleged to have been defiled. The witness stated that there was no bruises on labia majora/minora, hymen broken but not fresh, she had keytons infection, epithelial cells were seen on high vaginal swab, the girl had not attained menstrual age, she had no physical injuries. He produced P3 form, Treatment notes, lab and PCR forms and Birth certificate for the complainant. He concluded that from lab results and physical examination, there was physical assault.
22.In cross examination, PW3 stated that if there is penetration and ejaculation, sperm is indicative of sexual assault. He stated that friction on walls leading to injuries and infection is common. He also stated that clothes were soiled and untidy. He reiterated that there were epithelial cells and the hymen had been broken.
23.He further stated that it was normal vaginal discharge. He maintained that the minor was defiled. He stated that there was no blood and that if she had taken a shower then no blood could be seen although it was not indicated if the parent said that the child had taken a shower.
24.PW4 Police Constable Mary Njoki from Sirembe Police Post recalled that on 20/8/2020 while she was at the report office, a minor with her mother went and reported that at 6.30pm, while the minor was on her way home from her Aunty’s house, she was pushed into a house and defiled. PW4 stated that she saw sperms on the minor’s private parts so she booked the report and issued her with a P3. The accused was identified by the victim the said day and a birth certificate was availed showing that the minor was aged 11 years. She maintained her testimony in cross examination.
25.Placed on his defence, the accused testified on Oath and stated that he was Rodgers Omete Karakacha from Mumias and an electrical engineering student. That the incident took place while he was at his aunt’s place. He stated that there was a problem between his aunt, her children and the complainant’s family and that he was just implicated in the case without any evidence. He stated that the case was a fabrication and that he was not there when the incident happened. Cross examined, he stated that he did not commit the offence and that PW1 & PW2 gave false evidence in court.
26.The accused then closed his case.
27.The trial magistrate after assessing the evidence adduced by the prosecution witnesses and after warning herself of the dangers of relying on evidence of one eye witness the minor, and after satisfying herself that the minor was consistent in her testimony that she was defiled by the appellant herein, found that the prosecution had proved all the elements of defilement against the appellant beyond reasonable doubt and dismissed the alibi defence as a mere denial and an afterthought considering the circumstances under which the offence.
28.The appellant was convicted as charged and after hearing mitigation, sentenced the accused to serve 20 years imprisonment. It is that conviction and sentence that has given rise to this appeal.
Analysis And Determination
29.Upon considering the grounds of appeal, the oral submissions by counsel for the appellant and the state Prosecution, the main issue for determination is whether the prosecution proved all the elements of defilement against the appellant beyond reasonable doubt. However, as the appellant has raised a serious constitutional issue of the alleged violation of his right to a fair trial, I will deal with that issue first before delving into the merits of the appeal herein.
30.The appellant asserted that he was denied the right to a fair trial as he was unrepresented and that he was not promptly informed of his right to legal representation by an advocate of his own choice or where substantial injustice would result, to be assigned an advocate at the state expense. This ground raises the constitutional right to a fair hearing under article 50 (2) (g) of the Constitution.
31.This is not the first time this court has rendered a judgment on a similar question of whether failure to promptly notify an accused person charged with a criminal offence that caries long term sentence, of his right to legal representation of own choice renders the criminal proceedings void and a nullity, amenable to being quashed and setting aside on appeal.
32.I will however rely substantively on the decision by R. Weldon J rendered at Migori High Court on June 16, 2021in AMR v Republic  eKLR to buttress my findings. That case was similar to this case. The learned judge extensively cited other decisions and arrived at a determination that rendered the trial of the appellant before the lower court a nullity on the basis that his rights to fair trial under article 50(2)(g) of the Constitution were violated. That case is in parimateria with this case. The Article provides that:
33.The learned Judge stated as follows, quite elaborately:
34.I find no reason to differ with the above holdings and or delve into the merits of this appeal as the right to a fair trial cannot be limited. I find that as the offence committed was a serious offence attracting up to life imprisonment upon conviction, the trial court was under a duty to promptly inform the appellant of his right and the appellant would have indicated whether he could afford an advocate or be advised to apply to the National Legal Aid Service Board for a pro bono advocate. That duty was not undertaken by the trial court right from the time of taking the plea until the end of the trial. The charge that the accused faced was serious. He faced up to life sentence upon conviction. In my view, substantial injustice occurred considering the age of the appellant who was only 20 years old and therefore the need to promptly inform of his right to legal representation.
35.Accordingly, as there is no evidence that witnesses cannot be traced as this is a 2020 case where the accused was convicted and sentenced on 20/4/2022 while on bond, and as the offence charged was serious in nature, I hereby quash the appellant’s conviction, set aside the sentence of twenty years imprisonment and order that the appellant shall be retried before Siaya Chief Magistrate’s Court for the same offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offence Act. The Appellant shall be released only to the police custody to be produced before Siaya Chief Magistrate’s court on November 28, 2022 for Plea taking.1.This file is closed.2.I so order.