Ogola v Republic (Criminal Appeal 135 of 2017)  KECA 39 (KLR) (3 February 2023) (Judgment)
Neutral citation:  KECA 39 (KLR)
Republic of Kenya
Criminal Appeal 135 of 2017
PO Kiage, F Tuiyott & JM Ngugi, JJA
February 3, 2023
Tobias Onyango Ogola
(Being an appeal from the judgement of the High Court of Kenya at Kisii (R.N. Sitati, J.) dated and delivered on 18th December, 2010 in High Court Criminal Appeal No. 38 of 2011)
1.The appellant, Tobias Onyango Ogola, was arraigned before the Senior Resident Magistrate’s Court in Rongo in Criminal Case No 991 of 2009. He was charged with the offence of defilement of a girl contrary to section 8(1)(2) of the Sexual Offences Act No 3 of 2006. The particulars of the offence were that the appellant, on the 15th day of December, 2009, at [Particulars Withheld] village in Uriri District of Nyanza Province, willfully and intentionally caused an act of penetration to the genital organ of MA, a girl of the age of seven (7) years. The appellant was also faced with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. The particulars of the victim, date and place of the alternative count were the same as that of the main charge.
2.The appellant pleaded not guilty and a fully-fledged hearing ensued. The Prosecution called four (4) witnesses before closing its case. The appellant was put on his defence. He gave unsworn testimony. The record shows that the appellant informed the Court that he wished to call two (2) witnesses but that was never to be since thereafter when the case came up for hearing, he closed his case. At the conclusion of the trial, the learned trial magistrate convicted the appellant and sentenced him to life imprisonment as the law mandatorily provides under section 8(2) of the Sexual Offences Act No 3 of 2006.
3.The appellant was aggrieved by the decision of the lower court and filed an appeal against the conviction and sentence before the High Court.
4.The High Court (Sitati, J.) dismissed the appeal and upheld the conviction and sentence in a judgment dated December 18, 2010.
5.The appellant was again dissatisfied with the decision of the High Court and has lodged the present appeal. He has raised ten (10) grounds in his “home-grown” memorandum of appeal which he has filed in person. The grounds are that:
6.The appeal was argued by way of written submissions by both parties. During the virtual hearing, the appellant appeared in person, whereas Learned Counsel, Mr Okango, appeared for the Respondent. Both parties relied on their submissions.
7.The appellant contended that the charge sheet was defective and argued that the same indicated the incident took place on December 15, 2009 and yet during trial, the complainant and her mother (PW2) testified that the incident took place on December 13, 2009. He also stated that the age of the complainant in the charge sheet is indicated as 7 years, whilst PW2 testified that her daughter was aged 6 years.
8.The appellant also claimed that the Learned Magistrate did not conduct voir dire as required, of a minor and that in addition, there were glaring gaps and inconsistencies in the prosecution case. He contended that the prosecution failed to prove its case beyond reasonable doubt since upon medical examination, the complainant was found to be HIV negative whilst he (appellant) was found to be HIV positive, in addition to having syphilis. In this regard, he cited the case of John Cardonwagner & Others v Republic, Kiare v Republic (1984) KLR 739 and John Murithii Nyagah v Republic (2014) eKLR.
9.Finally, the appellant argued that the conviction was unsafe because the trial court as well as the High Court ought to have drawn adverse inferences from the fact that crucial witnesses were not called. These witnesses, the appellant said, were the two witnesses who were allegedly with the complainant before the incident, the assistant chief to whom the first report was made, and the investigating officer.
10.In opposing the appeal, Mr Okango reminded the Court of its role as a second appellate court, being, to deal with matters of law only. He disputed the appellant’s assertion that the charge sheet was defective and argued that even so, the same had been raised for first time in this second appeal. In this regard, he cited the case of Alfayo Gombe Okello v Republic  eKLR for the preposition that the appellant gave no reason for his failure to raise the issue of a defective charge sheet earlier and urged the Court to find that it was not raised at the earliest opportunity although he could and should have.
11.Counsel rejected the appellant’s argument that there were glaring gaps and inconsistencies in the prosecution case. He argued that in sexual offence cases, section 124 of the Evidence Act allows the trial court to convict an accused person based on the evidence of the complainant, so long as the trial court records its reasons for believing such evidence. It was his submission that in this case, the trial court clearly recorded its reasons for believing the complainant and cited the case of Bernard Kebiba v Republic  eKLR. On whether the trial court conducted voir dire, Counsel submitted that the Court properly conducted the same and was satisfied that the complainant was competent to give evidence on affirmation. In this regard, he cited the case of Johnson Muiruri v Republic  KLR 445.
12.As regards the appellant’s contention that the prosecution did not prove its case beyond reasonable doubt as the medical reports showed different HIV results, Counsel submitted that the medical evidence showed that the complainant was defiled despite the fact that she did not contract HIV from the appellant. He argued that the same was not evidence that there was no defilement. In this regard, he cited the case of Charles Wamukoya Karani v Republic, Criminal appeal No 72 of 2013.
13.Counsel also disputed the appellant’s assertion that the prosecution failed to call two crucial witnesses. He argued that failure to call the witnesses, who were children, was not prejudicial to the appellant since they were not at the scene of the incident and neither did he demonstrate how their evidence would have aided his case. Further, Counsel submitted that the age of the complainant was estimated to be 7 years by the clinical officer, while her mother (PW2) testified that her daughter was 6 years. In this regard, he argued that the age of the complainant being either 6 or 7 years was not fatal as she was still below the 11 years provided for under the law which the appellant was charged.
14.Lastly, as regards resentencing, Counsel argued that the court could review the life imprisonment to 30-year imprisonment and cited the case of Maingi & 5 Others v Director of Public Prosecutions & Another, Petition No E017 of 2021  KEHC 13118 (KLR), which addressed the issue of constitutionality of mandatory minimum sentences. In that case, Odunga, J as he then was, held and gave orders that:In addition, Counsel also relied on the case of Joshua Gichuki Mwangi v Republic, Nyeri Criminal appeal No 84 of 2015.
15.As rightly stated by the respondent’s Counsel, this being a second appeal, our jurisdiction is indeed limited to a consideration of matters of law only by dint of section 361(1) of the Criminal Procedure Code. It is only on rare occasions that we interfere with concurrent findings of fact by the two courts below. In Samuel Warui Karimi v Republic  eKLR, it was held as follows:
16.We have carefully considered the appeal, the rival submissions of the parties and the authorities cited in support of the opposing positions. To start off, drawing from our mandate as a second appeal court as held in Samuel Warui Karimi v Republic (supra), we have taken a keen note of the manner in which the proceedings were recorded by the trial magistrate. Two aspects are of particular interest because they go to the root of fair trial.
17.First, there is a question whether the learned magistrate properly conducted voir dire given that the complainant in this case was a minor. This court has given guidance on the issue of voir dire examination in Johnson Muiruri v Republic as follows:
18.In both Kivevo Mboloi v Republic and Musyoka Mwasya v Republic, this court held that failure to conduct a voir dire rendered the entire evidence of the complainant of no use to the Court. In cases where there is no other evidence sufficient to sustain a conviction, the failure to conduct voir dire properly is fatal. See Nyasani s/o Bichana v Republic.
19.In the present case, what appears, in the typed record is as follows:
20.We think that this voir dire is not the epitome of the ideal thorough-going voir dire of minors but that, in itself, would have been insufficient to render the conviction unsafe. We are far more worried about the second problematic aspect of the record: this is recordation of the proceedings in a language that appears plain to us not to be fidel to what the complainant testified in court.
21.The learned magistrate recorded the evidence of the complainant as follows:
22.We have no doubt in our mind that a 6 or 7-year old girl in Rongo would not use the word “defile” in court proceedings. Such a girl would have had a more metaphorical or euphemistic expression to explain what happened to her. It seems plain to us, therefore, that this reproduction of the proceedings was not faithful to what actually happened in court. During the hearing of the appeal, we raised this matter with Mr Okango, learned state counsel, and, to his credit, he conceded that it was highly unlikely that the complainant used those words.
23.Our dissatisfaction with the proceedings does not end there. In her testimony, PW2, the mother of the complainant is recorded as saying the following during cross-examination:
24.At the High Court, the learned judge consulted the handwritten notes to untangle the disturbing part where the witness appears to say that she framed the appellant. However, the learned judge leaves open a second source of bemusement with the record: if the appellant is Baba Musa as the complainant testified; and if Mama Musa is the complainant’s mother’s co-wife, does that make the complainant a biological or adopted child to the appellant? Even more crucial, does that make PW2 the complainant’s wife? If so, this would have important implications for the analysis of the evidence – including the appellant’s theory that the complainant’s mother had framed up the case. Unfortunately, that analysis remained undeveloped and un-done and cannot be satisfactorily undertaken on second appeal.
25.As Mr Okango conceded, there is yet another aspect of the case that is troubling: the failure to call witnesses who, in context, seem crucial. First, the complainant testified that she was playing with her two friends, Toto and Roney, when the appellant called her and locked the other two children in the house and went with the complainant in to a maize plantation where he defiled her. These two other children who were allegedly locked up are clearly crucial witnesses who would have corroborated that part of the story. The fact that they were not called to testify in the circumstances of this case must yield an inference adverse to the prosecution. This is also true for the Assistant Chief who was the first authority figure to whom the incident was reported. The failure to call these witnesses in this case is only made worse by the fact that the investigating officer was not called to testify either. The end result is to firmly place this case in the Bukenya exception – eponymously named after the case, Bukenya & Others vs Uganda  EA 549 where the Court of Appeal for Eastern Africa held that:
26.In the present case, the fact that the incident allegedly happened on December 13, 2009 and was not reported until about two weeks later – on December 27, 2009; and medical examination carried out on December 29, 2009, there was a need to call these witnesses to remove any reasonable doubts that the minor was not defiled by a third party during the intervening period. The un-explained failure to call these witnesses throws a shadow of doubt about the certainty of the conviction.
27.Finally, we have noted from the trial court record that the appellant informed the court that he had two witnesses he wanted to call to prove is alibi defence. The court noted his request and directed that witness summons be issued to the witnesses. This was on June 4, 2010. However, when the trial resumed on June 15, 2010, the two witnesses were not in court. The learned magistrate does not indicate why they were not there and if the witness summons were ever issued. The learned magistrate simply recorded “Accused present” before recording him as saying “That is the close of my case.”
28.It would seem to us from the above that the court failed to give the appellant all the facilities for his defence that he needed as demanded by Article 50(2)(c).
29.In view of all these concerns about how the trial was conducted, concerns which rise to the level of attaining categorization as questions of law appropriate for review at the second level of appeal, we must conclude that the conviction in this case was unsafe and must be reversed. If the reversible errors were merely the procedural infirmities we have pointed out (reflected in the issues of recordation of proceeding and failure to accord the appellant adequate facilities for his defence), we would have reversed the High Court judgment; set aside the judgment of the lower court and then carry out an analysis whether to order for a retrial. However, in this case, the procedural infirmities are compounded by substantive evidential infirmities (reflected in the failure to call crucial witnesses). This confluence of procedural and substantive infirmities ineluctably leads to the outcome that the conviction in this case must be quashed and the sentence set aside.
30.Consequently, we reverse the judgment of the High Court. Instead, we enter judgment acquitting the appellant. He shall be released from custody forthwith unless he is otherwise lawfully held.
DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF FEBRUARY, 2023.P. O. KIAGE...............................JUDGE OF APPEALF. TUIYOTT...............................JUDGE OF APPEALJOEL NGUGI...............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR