Samuel Kilonzo Musau v Republic [2014] KECA 372 (KLR)

IN THE COURT  OF APPEAL

AT NAIROBI

(CORAM: GITHINJI, KARANJA & M’INOTI, JJ.A)

CRIMINAL APPEAL NO.153 OF 2013

BETWEEN

SAMUEL KILONZO MUSAU…………………..............…….………APPELLANT

VERSUS

REPUBLIC…………………………………...............…………RESPONDENT

(Being  an   appeal  from   the  judgment of   the High   Court  of  Kenya  at  Machakos (Ngugi,  J.) dated 28th  September, 2012

in

MACHAKOS  H.C.CR.APP. NO. 269  of 2010)

*******************

JUDGMENT OF THE COURT

On   3rd      June,   2010,  the   appellant,  Samuel  Kilonzo    Musau  was convicted by  the  Senior Resident Magistrate,  Kithimani, of the  offence of defilement contrary to  section 8(2) of the Sexual Offences Act, No 3 of  2006,  and   sentenced  to   life  imprisonment.  He  was   acquitted  of  an alternative charge of indecent act  with a child  contrary to  section 11(1) of the  same  statute.

Aggrieved  by  his  conviction and  sentence, the   appellant  lodged an appeal before the  High  Court in Machakos, contending that his constitutional rights had been  violated when  he was detained beyond the  prescribed period before being charged in  court; that his  conviction was  based  on  mistaken identity and  that he  was  not afforded an  opportunity to  recall and  examine witnesses upon  amendment of the  charge, as required by  section 214  of the Criminal Procedure Code.  The  appeal was  heard and  dismissed by Ngugi, J. on 28th September 2012  after he found the  same  bereft of merit.

Further  aggrieved by  the  judgement of the  first appellate court, the appellant lodged the  second appeal now  before us,  in  which he  has  raised eight grounds of appeal which we shall  consider shortly.

The particulars of the  charge that the  appellant was convicted of were that on  16th  March,  2008  at Mbusyani sub-location, Ndithini Location in Yatta  District,  Eastern Province,  he  intentionally and  unlawfully did  an  act which caused  penetration of his genitals (penis) into  the  genitals (vagina) of MN,  a girl  aged  7 years. The  prosecution case  was  constructed around the evidence of 6 witnesses, including the  minor victim, MN. Briefly, the  evidence adduced by the  prosecution before the  trial court was as follows.

On the  material day  at about 5.00  pm,  MN (PW1) was returning home from the  neighbourhood posho mill, when  she encountered the  appellant on the  road.  Without any  ceremony, the  appellant grabbed her  by  the  throat, put  stones into  her mouth and led her into  a forest off the  road.  In the  forest, the  appellant laid  MN on  the  ground, removed her  underpants and  defiled her.  Before running away  the  appellant warned MN  that he  would kill  her should she inform anyone.

On  arrival  at  home, MN  gathered  the   courage  to  tell   her   mother, T W N (PW2) what had  happened. MN  informed PW2 that she  had  been  defiled by  a man  who  worked at the  nearby quarry, but whose   name   she  did   not  know. She  recognised  her   assailant,  she  said, having seen him  every day as she went down  to the  river. PW2 examined her daughter, who  looked weak  and  found substance  on  her  underpants which she suspected to be semen.

Outraged and  determined to  bring the  culprit to  justice, PW2 and  her fellow villagers formed a kind  of “posse” to track down  and identify MN’s assailant. Their   approach, which has  been   the  centre of attention  in  this appeal, was  aptly described by  the  first appellate court as “makeshift identification parade innovatively performed by  villagers”. It entailed summoning all  quarry workers and  standing them in  a circle to  enable MN, who  was  in  the  middle of the   circle, see  whether she  could   identify her assailant.   In  the  first  group of quarry workers which did  not include the appellant, MN  had  no  difficult in  saying that her  assailant was  not among them.

Some  of the  appellant’s fellow workers, noticing his absence, asked  for him  to be brought too.  When  the  appellant joined the  group, it was dark  and lamps and  torches had  to  be  used  for purposes of the  identification. This time round, MN picked the  appellant as her  defiler. The workers retreated to a room  and  rearranged themselves, with the  appellant in a different position in  the  circle. MN  was  called in  and  again  she  picked the  appellant as  her defiler.  Satisfied  that  they  had   the   culprit,  the   villagers  escorted the appellant to the  Ndithini Police  Post.

The  next day  a report on  the  defilement was  made  at the  police post before  MN  was   examined  and   treated  at  Thika   Hospital.  The   medical evidence  which  was   adduced  by   Alfred  Toronke,  PW6   was   that  MN’s hymen was  broken, her  vulva was  swollen, there were  lacerations on  her vaginal  area   and   she   had   a  fungal  infection.  From   these   findings  PW6 expressed the  opinion that MN had been  defiled.

Put  on  his  defence,  the   appellant gave   an  unsworn statement  and called  no  witness.  The  gist  of  his  defence  was  that  at the   time  of the commission of the  offence, he was away  at Kiatineni, where he was with his employer from about 5.00  pm  to 8.00  pm.  As he walked back  home  at night, he was set upon  by unknown people who  beat him  up,  knocked off his tooth and  stole   from him  Kshs  1,200/-. His  attackers then   took   him   to  Ndithini Police  Post  where he  was  detained for three  days.   Subsequently he  was detained at  Yatta   Police   station  for  another  seven   days   before  he   was charged with an offence which he knew  nothing about.

In the  grounds of appeal prepared by  himself for the  purposes of this appeal,  the   appellant has  raised eight  issues,   which allege that  the   first appellate court erred by:

i)         Finding  that the appellant did not suffer  any miscarriage of justice due to technical defect  in the charge sheet;

ii)        Holding  that the appellant was not prejudiced when he was not informed of his right  to recall  witnesses  after  amendment of the charge;

iii)     Holding  that the appellant was sentenced to 20 years imprisonment  while   in  fact  he  was  sentenced  to  life imprisonment;

iv)       Failing  to nullify the trial of the appellant on account  of his detention beyond  the prescribed period;

v)        Treating   the    appellant’s   identification   as   a   case   of recognition;

vi)       Rejecting  the defence  without any cogent  reason;

vii)      By relying on an illegal  rather  than  an official  identification parade conducted by the police;

viii)     By imposing an excessive  and harsh sentence.

The appellant further expounded on the  above grounds of appeal in his written submissions filed in  Court  on  15th  July  2014  which we  shall  consider as  we  evaluate each  of his  grounds of appeal, in  so  far as  they do  not introduce new issues  not raised in the  grounds of appeal.

The  first ground of appeal relates to  competence of the  charge. This issue  was  not raised by  the  appellant before the  first appellate court; it was raised by  the  court itself and  addressed towards the  end  of the  judgement “for purposes  of fairness  and completeness”. As framed, the  charge read “defilement contrary to section 8 (1) (2) of the Sexual Offence Act, No  3  of  2006.” The  learned judge held  that there was  no  such  provision, but   nevertheless  upheld  the   appellant’s  conviction  after  he   found  the irregularity was  curable under  section 382   of  the Criminal Procedure Code.   In  arriving  at  that  conclusion, the   learned judge found that  the appellant was  charged with an  offence known in  law;  that the  offence was sufficiently disclosed to give  him  notice of the  charges that he faced and that the  appellant was not occasioned any prejudice or miscarriage of justice.

As  will   be  readily  apparent,  section 8(1)   is  the   offence  section;  it creates the  offence of defilement constituted by  committing an  act  which causes  penetration with a child. Section 8(2)  is the  punishment section and prescribes life imprisonment when  the  child  defiled is aged  eleven years  or less. The charge would have  been  properly framed if it charged the  appellant with defilement contrary to section (8) (1) as read  with sections 8(2)  because section 137  of  the Criminal Procedure Code  requires the  statement of the  offence to describe the  offence in ordinary language and if the  offence is one  created by  enactment, it shall  contain a reference to  the  section of the enactment creating the  offence.

In this  case, the  statement of offence, though lumping section 8(1)  and (2) together, contained the  ingredients of the  offence and  the  prescribed punishment. The  irregularity was  one  that was,  in  our  view,  curable under section 382  of the Criminal Procedure Code.  That provision insulates a finding or sentence of the  trial court from challenge on account of any  error, omission or irregularity in the  charge, unless  it has occasioned a miscarriage of justice. In  GEORGE NJUGUNA WAMAE VS REPUBLIC, Crim.  App  No 417  of 2009 this  Court stated as follows regarding the  effect of section 382 on defects alleged in the  charge:

“By  dint of  this provision, to reverse the findings of  the courts below on  account of  an  error, omission, or irregularity in the charge, we  must be satisfied that such error, omission or irregularity has  occasioned a failure of justice, and  in  making that determination, we  must consider whether the issue  being raised now  could  have been   raised at  an  earlier stage in  the proceedings. We are  of the considered opinion that there was  no failure of justice and  that the appellant did not suffer any  prejudice arising  from    the  manner  in   which    the  statement  of offence was framed in the charge sheet. The  offence with which   he  was  charged was  clearly  disclosed as  robbery with violence contrary to section 296(2)  of  the Penal Code...More  importantly,  this  is  the  kind   of   objection which, under the provision to section 382,  should   have been   taken at  the  earliest  opportunity before the  trial court  if   the   appellant  considered  the   charge  to  be defective or otherwise lacking in clarity.”

We are satisfied that in this  case, the  appellant was not occasioned any prejudice and  that there was  no miscarriage of justice. As noted by  the  trial court, the  appellant fully appreciated the  offence with which he was charged as is evident from his cross-examination of the  prosecution witnesses.

The second ground of appeal relates to the  amendment of the  charge, the   appellant claiming that  he  was  never  advised  of  his  right  to  recall witnesses  who  had  already testified,  to  give   their  evidence afresh or  for further cross  examination as required by  section 214  (1) of the Criminal procedure  Code.   On   12th    December,  2009,  after  PW1  and   PW2  had testified, the  prosecution applied to  amend the  charge to  include the  words “intentionally  and   unlawfully”  in  the   particulars  of  the   offence.  The appellant did not object to the  application and the  amendment was allowed.

As required by  the  proviso to  section 214,  the  trial court, called upon the  appellant to  plead  to  the  amended charge, after which he  pleaded not guilty and  a  plea   of not guilty  was  duly   entered.  The  applicant  did  not indicate that he  wished to  have  either or  both   of the  witnesses who  had already testified recalled, and  so the  trial proceeded. Before us,  like  before the  first appellate court, the  appellant took  issue  with the  failure of the  court to recall the  two  witnesses. The relevant part of section 214  (1)  (ii)  provides as follows:

“Where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the  last-mentioned event, the prosecution shall  have  the right to re-examine the witness on matters arising out of further cross-examination.”

We agree  with the  first appellate court that under the  above provision, the  recall of witnesses is at the  instance or  request of the  accused person. There  is  no  automatic right  for recall of witnesses. To  the  extent that the appellant did  not request for any  of the  witnesses to  be  recalled, the  trial court  cannot be  faulted for failure to  recall them. While   it may   be  good

practice for the  court to  inform the  accused person, particularly  one  who  is not represented by  counsel, that he has  such  a right, that is not mandatory and  failure to  do  so  of itself cannot vitiate  a  trial. We  note   too  that the amendment that was  allowed was  to  ensure technical compliance of the charge and  that it did  not impinge on the  appellant’s defence. As far as we can deduce, the  appellant’s defence was all along  that he had not committed an act that caused  penetration of MN. It was not his defence that penetration had  occurred, but  unintentionally or  otherwise lawfully. We  do  not see  any merit in this  ground of appeal too.

The appellant is certainly right in regards to  the  third ground in which he  complains that the  learned Judge  wrongly stated that the  appellant had been  sentenced to  20  years  imprisonment. The record is clear  that the  trial court sentenced the  appellant to life imprisonment as required under section 8(2)  of the  Sexual  Offences Act.  We cannot fathom where the  learned Judge got the  idea  from that the  appellant had been  sentenced to imprisonment for 20  years. Be that as it may,  nothing in  this  appeal turns on  that erroneous statement by the  learned Judge.

The fourth issue raised by the  appellant relates to his detention beyond the  prescribed period before he  was  charged in  court. Section 72(3) of the former Constitution required a suspect to  be  brought to  court “as  soon  as is reasonably practicable” and  where he was  not brought to  court within 24 hours, the  Constitution placed on the  prosecution the  onus of proving that the  suspect had  been  brought to  court as  soon  as  reasonably practicable. This provision has been  considered in many judgements of this  Court and the position is now  settled that an accused person who  alleges that he was  not brought to  court as  soon  as  reasonably practicable is  obliged to  raise  the issue   first  with  the   trial  court  so  as  to   elicit  an   explanation from  the prosecution. Secondly, failure to bring the  suspect to court within 24 hours, if it has  not implicated on the  fairness of the  trial, of itself does  not vitiate his trial or warrant an automatic acquittal. See  JULIUS KAMAU MBUGUA VS R, Cr App No 50  of 2008. The proper remedy that is available for such person is a claim for damages. We do not find any merit in this  ground of appeal.

Grounds 5  and  7  may  conveniently be  taken together as  they raise issues  of identification  of the  appellant. The  appellant complains that the only  identification parade known in law is that conducted by the  police under the  Police   Standings Orders and  that the  identification  parade he  was subjected to was not such an identification parade. In his view,  the  purported identification parade conducted by  the  villagers was  an  illegal identification parade  which  had   erroneously  been   accepted  by  the   trial and   the   first appellate courts.

As the  Committee on Evidence of identification  in Criminal Cases, 1976 (The  Devlin Committee), Cmnd,  338  observed, the  identification  parade is not a scientific test and cannot safely be treated as one.  Instead, it is merely the   best  practical  method  of  achieving  an  identification  without confrontation. The purpose of an identification parade, as explained in KINYANJUI & 2 OTHERS VS REPUBLIC  (1989) KLR  60, “is  to  give  an opportunity to a witness  under controlled and fair conditions to pick out the people  he is able to identify, and for a proper  record  to be made  of that event  to remove  possible  later  confusion.” It is precisely for that reason that courts have  insisted that identification parades must be fair and  be seen  to be fair. Scrupulous compliance with the  rules  in the  conduct of identification parades is necessary to eliminate any  unfairness or risk  of erroneous identification. In particular, all precautions have  to be taken to ensure that a witness’s  attention  is  not  directed  specifically to  the   suspect  instead  of equally to all persons in the  parade. Once a witness has properly identified a suspect out  of court, the  witness is allowed to  identify him  on  the  dock  on the  basis  that such dock  identification is safe and reliable, it being confirmed by the  earlier out of court identification.

In this  appeal, the  trial and the  first appellate courts did not rely  on the improvised   identification   parade  as   the    primary   or   sole    method   of identification of the  appellant. They  found it to supplement the  identification of the  appellant by  MN before the  parade was  conducted. We agree  that on its  own,  the  improvised identification parade would not have  provided a safe basis  for the  conviction of the  appellant, not the  least because members of the  parade were  drawn from a particular class  of workers and  there was  no indication that they had  similar characteristics in terms of age,  height, appearance, etc.  The later addition of the  appellant to the  parade could  well have  also served to draw  attention to him  alone.

We   are   however  of  the    view    that  even    when    the    contentious identification  parade is  discounted, there was  sufficient  evidence that  MN had  the   opportunity to  properly and  safely identify  the   appellant as  her assailant. Before her  evidence was  taken, the  trial court conducted a voire dire  and  determined that she understood the  nature of an oath  and  the  duty to  tell  the  truth. Her  evidence was  taken on  oath  and  she  was  subjected to cross-examination by the  appellant. On how  MN stood  as a witness, the  trial court stated:

“PW1 had  no  reason to lie  against the accused person. Her   evidence  remained  consistent  even   in  cross examination by  the accused. There was  no evidence of a bad  relationship or  differences between her, her  family and  the  accused. She  testified  with the innocence of  a child  and  struck the court as an honest witness.”

The two  courts below considered a number of things before concluding that MN had  properly identified the  appellant. First, she informed her  mother immediately after the  defilement that she  had  been  assaulted by  a person who  worked at the  quarry. This  evidence was  corroborated by  PW2. It later transpired that the  appellant was indeed a quarry worker. Secondly, she also testified that although she  did  not know  the  name  of her  assailant, she  had been  seeing him  every day  as she  went to  the  river. Thirdly, the  defilement was  committed at 5.00  pm,  when  there was  plenty of light and  opportunity for MN to  see  the  appellant. Fourth, the  encounter at the  road,  the  walk  to the  forest and  the  actual defilement, meant that MN and  her  assailant were in  close   proximity  for a  reasonable period of  time,  in  sufficient light, to enable her identify the  appellant.

The  learned Judge  reminded himself of the  duty of a  first appellate court to  submit the  whole  evidence to  fresh and  exhaustive examination as well  as  the  obligation to  exercise the  greatest caution and  circumspection before convicting on  identification  evidence of a  single witness. Ultimately however, the  first appellate court reached the  same  conclusion as the  trial court and  we now  have  before us concurrent findings of two  courts that the appellant was properly identified as MN’s defiler.

In  Boniface Kamande  &  2  Others vs  R  (Criminal Appeal No  166 of 2004), this  Court stated as follows regarding concurrent finding of the  courts below:

“On   a  second   appeal  to  the  Court, which   is  what the appeals before us  are, we  are   under legal duty to pay proper homage to the concurrent findings of facts by the two  courts  below  and   we   would  only   be   entitled  to interfere if  and  only  if, we  were satisfied that there was no  evidence at  all  upon  which  such  findings were based or if there was evidence, that it was of such a nature that no reasonable tribunal could  be expected to base  any decision on it.”

In  this   appeal  we  do  not  find  any   basis   for  the   invitation  by  the appellant to interfere with the  concurrent findings of the  two  courts.

Before we leave  this  issue,  we would also  like  to refer to  Section 124 of the  Evidence Act as amended by  Act No. 5 of 2003 and  Act No. 3 of 2006. That section provides as follows:

“Notwithstanding the provisions of section 19  of the Oaths   and   Statutory  Declarations  Act,  (Cap.  15), where the evidence of the alleged victim is admitted in  accordance with  that  section on  behalf  of  the prosecution in  proceedings against  any  person for an  offence,  the  accused shall   not be  liable to be convicted on such evidence unless  it is corroborated by other material evidence in support thereof implicating him:

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall  receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings,thecourt issatisfiedthattheallegedvictim is telling the truth.”  (Emphasis added).

The effect of the  proviso to section 124  is to create, in cases of sexual offences, an exception to the  general rule  that an accused person cannot be convicted on  the  uncorroborated evidence of a child  of tender years. (See DENIS OBIRI VS REPUBLIC, Cr App No 279  of 2011 JACOB ODHIAMBO OMUMBO v REPUBLIC,   Cr.  App.  No   80   of   2008  (Kisumu),  and MOHAMED VS REPUBLIC (2006) 2 KLR 138. In the  latter case,  this  Court stated emphatically:

“It is now  settled that the Courts shall  no longer be hamstrung by  requirements of  corroboration where the victim of  a  sexual offence is  a  child  of  tender years if it is satisfied that the child  is truthful.”

The  record  is  clear   enough that  the   trial  magistrate recorded them reasons why  he believed MN was  telling the  truth. Under  section 124  of the Evidence Act,  the  appellant could  be  properly convicted on  the  evidence of MN alone.

The next ground of appeal is that the  appellant’s defence was rejected without cogent reasons. The appellant’s defence was  basically an alibi, that at the  time of the  commission of the  offence, he was  away  at Kiatineni and as he came  back  from there he was attacked by unknown people and  ended up detained by the  police for ten days.

From  his  evidence, he  was  never at the  improvised parade held  after the  defilement of MN. Yet there was  evidence from MN, PW2, PW3 and  PW4 that the  appellant was  at the  parade. Moreover, from the  evidence of PW2, Kiatineni is a mere  one  and  half hour’s walk  from the  scene  of the  offence, meaning that if he was  really there, he could  easily  have  walked there after the    offence.  From    the    record,  the    two    courts  below  considered the appellant’s  defence  and   found it  not  credible and   the   alibi   effectively displaced by the  evidence adduced by the  prosecution.

By presenting a false alibi, the  appellant was in a sense  supporting the evidence of his identification. As was stated in  R. VS TURNBULL  (1977)  QB 224, identification evidence may  sometimes be  supported by  the  fact that the  accused person has put  forward a false alibi. This is particularly the  case where the   court is  satisfied that  the   sole  reason for  the   false alibi   is  to deceive it on the  issue of identification.