Case ID:202411

Nyongesa v Republic (Criminal Appeal E068 of 2021) [2022] KEHC 12926 (KLR) (12 September 2022) (Judgment)

Case Metadata

Case Number:

Criminal Appeal E068 of 2021

Parties:

Nyongesa v Republic

Date Delivered:

12 Sep 2022

Case Class:

Court:

High Court at Bungoma

Case Action:

Judgment

Judge(s):

Hedwig Imbosa Ong'udi

Citation:

Nyongesa v Republic (Criminal Appeal E068 of 2021) [2022] KEHC 12926 (KLR) (12 September 2022) (Judgment)

Court Division:

Criminal

County:

Bungoma

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Nyongesa v Republic (Criminal Appeal E068 of 2021) [2022] KEHC 12926 (KLR) (12 September 2022) (Judgment)

Neutral citation:

[2022] KEHC 12926 (KLR)

Republic of Kenya

In the High Court at Bungoma

Criminal Appeal E068 of 2021

HI Ong'udi, J

September 12, 2022

Between

Andrew Nyongesa

Appellant

and

Republic

Respondent

(Arising from the Judgment by G. Adhiambo Principal Magistrate in Kimilili Senior Principal Magistrate’s Sexual Offences case no. 51 of 2020 delivered on 14th June 2021)

Judgment

1.

Andrew Nyongesa the appellant was charged with the offence of defilement contrary to section 8(1) as read with section No 3 of 2006. The particulars being that the appellant on the 24

th

day of July 2020 at [particulars withheld] village in Bungoma North sub county within Bongoma county, intentionally and unlawfully caused his penis to penetrate the vagina of RJ a girl child aged 7 years.

2.

He faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the

Sexual Offences Act

No 3 of 2006. The particulars being that the appellant on the 24

th

day of July 2020 at [particulars withheld] village in Bungoma North sub county within Bongoma county, intentionally and unlawfully caused his penis to come into contact with the vagina of RJ a girl child aged 7 years.

3.

The appellant denied the charges and the matter proceeded to full hearing with the prosecution calling five witnesses. The appellant gave a sworn statement of defence. After the hearing a judgment was delivered on June 14, 2021. The appellant was found guilty, convicted and sentenced to life imprisonment on the principal count.

4.

Being aggrieved by the judgment he filed this appeal raising the following grounds:

(i)

That the appellant pleaded not guilty to the said charges of defilement.

(ii)

That, the learned trial judge erred in law and fact in conducting proceedings that violated the rights of the appellant as per the provisions of the law of Kenya hence null and void.

(iii)

That, the trial magistrate erred in law and fact in arriving at a decision basing on evidence on that were full of contradictions.

(iv)

That, the trial magistrate erred in law and fact in arriving at a verdict without analysing the evidence on record.

(v)

That, the trial magistrate erred in law and fact in failing to serve the appellant with court proceeding that would enable him challenge the evidence as prescribed by the law of Kenya hence null and void.

(vi)

That, the trial magistrate erred in law and fact in failing to avail an interpreter as he was not conversant with the language used during the court session.

(vii)

That, the honourable court should allow and issue a re-trial due to the above issued grounds number 2, 5 and 6 for the sake of justice.

(viii)

That, the appellant wishes to raise more grounds and mitigation when the same comes up for hearing.

5.

A summary of the prosecution case is that the victim (RJ) who was aged 7 years then, was playing outside with her younger sister A on July 24, 2020 around 5pm While there a neighbour Andrew Nyongesa alias Muchafu (appellant) held R J’s mouth and dragged her into a maize plantation from where he defiled her. She testified that he removed her pant and trouser. He also removed the trouser he was wearing. He then inserted his penis into her vagina causing her to bleed as she also felt pain. Once through he pushed her and ran away.

6.

She went home and reported to her parents and grandmother. She confirmed that there was sufficient light at the time of incident. A report was made to the police station before she was treated at Ndalu Health centre. The appellant was arrested on that same day.

7.

PW

2 JJ is the mother to RJ. She testified that RJ was born on May 1, 2013 and she availed the child’s antenatal card. She stated that RJ and her younger sister had gone to play outside leaving her home, plaiting her sister in law’s hair. When RJ returned, she was walking in a funny way. Minutes later she heard her crying and she ran to attend to her. She saw blood oozing from her vagina and its then that she explained to her what the appellant had done to her. The rest of her evidence is similar to that of RJ. The appellant is a person she had known for 3 years prior to the incident. She identified RJ’s treatment notes, and the attendance card, post rape care form all from Ndalu Health centre.

8.

PW

3 No 67657

PC

Benard Mashinga was the investigating officer, and he explained all the steps he took upon seeing the defilement report in the

OB

on July 25, 2020. The report was by one MJ and the victim was RJ. The culprit was brought to the station on July 24, 2020 at 7 p.m.

PW

3 issued RJ with a P3 form, which was later filled at Ndalu Health Centre. He produced the child’s antenatal clinic card (

PEX

B1) showing she was born on May 1, 2013.

9.

PW

4 Redenda Akware a registered clinical officer at Ndalu Health centre examined RJ on July 26, 2020 on allegations of defilement. Findings were as follows; vulva was blood stained;

HIV

status was negative, urine examination showed presence of epithelial cells. There was evidence of penile penetration into the vagina of RJ. She produced the P3 form to that effect (

PEX

B 2d). She also produced the post rape case form in respect of RJ (

PEX

B2c), and treatment notes (PEB2b) all confirming that the child was defiled.

10.

PW

5 MW is the father to RJ. His evidence is similar to that of his wife (

PW

2). He stated that RJ had identified the appellant as the Andrew who had defiled her.

11.

In his sworn defence the appellant denied the charge claiming he was framed up. That he was arrested from his work place and charged with this offence.

12.

In his written submissions he contends under ground (iii) that

PW

1 and

PW

2 gave contradictory evidence in regard to the time of incident.

PW

1 says it was night time while

PW

2 said it was 5.15 p.m, (daytime).

On ground 6 he submits that there was no interpretation during the proceedings. That he was not familiar with the language that was used in court which was not Bukusu language.

13.

On grounds 2, 4, 5, & 8 he submits that the conviction was against the weight of the evidence. He argues that first of all there was contradiction between the evidence of

PW

1 &

PW

2. Secondly he was never supplied with witness statements prior to the hearing to enable him prepare, for his defence. Finally his defence was not considered by the trial magistrate in his Judgment.

14.

The respondent’s submissions are dated August 3, 2022 having been filed by learned counsel Hilda Omondi. It is her submission that there was proof of the age of RJ through the immunization card. Further, penetration of RJ’s genital organ was proved by medical evidence. It is her submission that the identity of the perpetrator was a non issue as RJ knew him prior to the incident.

15.

On contradictions as claimed by the appellant, she submits that there were no material contradictions in the evidence adduced which was consistent and corroborative. She referred to the Court of Appeal case of

Philip Nzaka Watu v Republic

[2016] eKLR where the court held that some inconsistency in the evidence of witnesses should be expected because human recollection is not infallible.

16.

Counsel submitted that the issue of lack of interpretation raised in this appeal is an afterthought. The reason being that the appellant was able-to give his defence coherently claiming to have been framed up. Citing the case of

Republic vs Abeid

[1990] eKLR she urged the court not to interfere with the discretion of the trial court. The reason being that the trial court did not overlook some material factor nor take into consideration some immaterial factor. On the sentence meted against the appellant she submits that the same is not manifestly excessive as it’s as prescribed by the law.

Analysis and Determination

17.

This is a first appeal and this court has a duty to re-evaluate and reconsider the evidence afresh and arrive at its own conclusion. The Court of Appeal in the case of

Okeno v Republic

[1972] EA 32 on the duty of a frost Appeal Court held as follows:

“

An appellant on a fist appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (

Pandya v Republic

[1957] EA 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh “conflicting evidence and draw its own conclusions (

Shantilal M Ruwala v Republic

[1957] EA 570). It is not the function of a first appellate merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, See

Peters v Sunday Post

, [1958] EA 424.”

Also see:

(i)

Kiilu & another v Republic

[2005] 1 KLR 174

(ii)

Simiyu & another v Republic

[2005] 1 KLR 192

18.

I have carefully considered the evidence on record, the grounds of appeal, both submissions, cited authorities and case law. I have found it prudent to first address ground no 6 of the grounds of appeal before I delve into other issues. The reason being that it may determine the appeal. The 6

th

ground states:

“

That the trial Magistrates erred in law and fact in failing to avail an interpreter as I was not conversant with the language used during the court session.”

19.

Article 50 of the

Constitution

deals with fair hearing. article 50(2)(m) provides

“

(2)

Every accused person has the right to a fair trial, which includes the right:-

(m)

to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;

20.

When the appellant appeared in court the learned trial Magistrate D Ogal

SRM

noticed something about him. This is what the court noted:

“

Accused does not look ok. He should be subjected to mental assessment.”

The mental assessment report was filed on August 6, 2020 and plea was then taken before hon D Ogal

SRM

. The hearing started on October 19, 2020 before hon G Adhiambo. It was a virtual hearing as the evidence shows that R J and PW 2 identified the appellant through the screen.

21.

From the record despite all that the witnesses said about the appellant when it came to cross examination he never asked them (RJ

PW

2,

PW

4 &

PW

5) a single question. All he would say is:

“

Sina Swali

”

For

PW

3 the investigating officer the record shows:

“

It was on 24/7/2020.

Accused:

Sina swali ingine

.

(I have no other question).”

This clearly shows he only asked

PW

3 to clarify the date of incident, otherwise he had no other question for him.

22.

It is true that in his defence he raised the issue of having been framed and nothing more. The striking bit in this record is that despite all that the witnesses said against him which was so incriminating he had no single question for them. The question that immediately comes to mind is whether the appellant understood the evidence and whether he was unable to ask whatever questions he may have wanted. What is it that made it impossible for him to ask questions, could it have a language barrier? It is the learned trial Magistrate who should have picked up this and acted accordingly. The appellant in his submissions states that the language he understands best is

Kibukusu

.

23.

Yes, he may know Kiswahili but is he able to communicate well in the said Kiswahili? This coupled with the observation by hon Ogal –

SRM

on the appellant’s first appearance in court leaves me with a clear doubt in mind as to whether justice was really done to the appellant by not availing a Bukusu interpreter for him. It is always the duty of the court to ensure that interpretation for an accused person is done in the best language he/she understands. It must be clear on the record that has been done especially in serious offences, like that which faced the appellant.

24.

I therefore find that the conviction cannot stand in the face of all this. Justice must not only be done but must be seen to be done. Balancing the wheels of justice for both the appellant and RJ I find that there is need for a retrial to afford the appellant an opportunity for interpretation of the proceedings by a Bukusu interpreter.

25.

The appeal partially succeeds and the following orders issued:-

(i)

The conviction and sentence are hereby set aside.

(ii)

Matter sent back for re-trial before any other Magistrate besides hon G Adhiambo

PM

(iii)

The hearing should be conducted within the shortest period possible. Mention on September 16, 2022 for plea taking.

(iv)

If convicted, the sentence served between June 14, 2021 and the date of delivery of this Judgment must be taken into account.

Orders accordingly.

DELIVERED, VIRTUALLY, DATED AND SIGNED THIS 12TH DAY OF SEPTEMBER 2022 IN OPEN COURT AT NAIROBI.

H. I. ONG’UDI

JUDGE OF THE HIGH COURT