EKC v Republic [2022] KEHC 1564 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

CRIMINAL APPEAL NO E006 OF 2021

EKC..........................................APPELLANT

VERSUS

REPUBLIC..........................RESPONDENT

(Being an application from the judgement of Hon. A. Towett,

SRM, dated 10/02/2021 in the Principal Magistrate’s Court at Eldam

Ravine in Sexual Offence Case No. 037 0f 2019 Republic v Evans Kiprop Cheserem)

RULING

The appellant/applicant has filed this application seeking the following orders from this court, pursuant to the provisions of section 357 of the Criminal Procedure Code (Cap 75) Laws of Kenya.

1. An order to admit the applicant to bail pending the hearing and determination of his appeal.

2. The application is based on six grounds of appeal that are set out on the face of the notice of motion dated 12/04/2021, with the following being the major grounds. First, the applicant was convicted of defilement contrary to section 8 of the Sexual Offences Act. Second, the applicant has filed an appeal being Kabarnet High Court Criminal Appeal No. 06 of 2021 against both conviction and sentence; which appeal raises serious questions of both law and fact, with overwhelming chances of success.

3. Third given the effects of Covid-19 pandemic, there is a likelihood that the hearing and determination of the appeal may take long and the applicant may end up serving a substantial part of his sentence.

4. In addition to the grounds in support of his application, the mother of the applicant deposed to a ten paragraphs supporting affidavit; with the following being the major averments. The deponent is the mother and guardian of the applicant, who is a minor. The applicant was sentenced to three years probation and throughout the trial the applicant religiously complied with his bond terms of shs 500,0000/- and one surety.

5. Third, the applicant is a minor who is living with his parents at [particulars withheld] village in Lembus Perkerra ward within Baringo County. The applicant is a pupil in standard 6 at [particulars withheld] primary school and he also attends church at AIC  [particulars withheld] church.

6. The applicant’s other averments have been captured as grounds on the face of the notice of mention in support of the application and I therefore decline to reproduce herein.

The submissions of counsel for the applicant

7. Counsel for the applicant (Messrs Tarus & Compant Advocates) submitted the appeal is likely to succeed on account of some substantial point of law to be urged citing Jivraj Shah  v Republic (1986) e-KLR, in support of his submission. In that case the court also held that if there are exceptional or unusual circumstances in the appeal the court may grant bail. Finally, that court also held that the court may also grant bail if a substantial part of the sentence will have been served by the time the appeal is heard.

8. Furthermore, counsel also submitted that the applicant’s fair trial rights as enshrined in article 50 (2) (c) (d) (h) of the 2010 Constitution were infringed. Counsel submitted that the applicant who was a minor in class 6 was not accorded any legal representation throughout the entire trial process. Due to the said lack of legal representation the defence were prejudiced. Counsel cited the English case of the Queen on Application of HC (a child by his litigation friend) and the Secretary of State for the home department & Commissioner of Police of the Metropolis (2013) EWHC983 admin) in which that court pointed out that:

“the underlying principle is that the criminal justice system should take into account the defendant’s age, level of maturity and emotional capacity. It is only by doing so that the system can redress the imbalance which is inevitable where a child or young person is confronted by the power of the criminal justice.” Counsel has submitted that this position is reiterated in article 53 of the 2010 Constitution of Kenya which requires the court to take into account the best interests of the child as being paramount in any proceedings concerning the child.

9. The foregoing position is reiterated in section 43 (1) (a) (b) (c) of the Legal Aid Act 2016. And by virtue of article 2 (6) of the Constitution of Kenya, article 37 (d) of the United Nations Convention on the rights of the child is applicable in Kenya. The provisions of that convention provide that any child who has been deprived of his liberty has a right to prompt access to legal and other legal assistance.

10. Additionally, counsel cited Dominic Karanja v Republic (1986) KLR 612 in which the Court of Appeal stated inter alia that if the appeal has overwhelming chances of success, there is no justification to deprive the applicant his liberty and that the other minor consideration is whether there are exceptional or unusual circumstances in the appeal.

11. It is counsel’s submission that the applicant being a minor is an exceptional circumstance as he cannot reasonably develop and bring out his defence without the assistance of an advocate. Counsel has therefore urged the court to allow the applicant’s application.

The submissions of the respondent

12.  Although counsel for the respondent (Mr. Mong’are) was given the opportunity to file his written submissions, he elected not to file any submissions.

Issues for determination

13. I have considered the affidavit of the applicant, his submissions and the authorities cited by his counsel. I find the following to be issues for determination. 1. Whether the fair trial rights of the applicant were infringed. 2. Whether there are unusual or exceptional circumstances involved in the appeal.

Issue 1

14. The applicant is aged 15 years old. He is therefore a minor. He was not informed of his right to counsel for his defence. He was also not represented by an advocate. I find that the applicant was prejudiced in his defence by virtue of lack of legal representation. Article 50 (2) (g) of the 2010 Constitution of Kenya guarantees to a very accused the right to counsel, amongst other fair trial rights. I find that the conduct of the defence by the applicant in person in the trial disabled him from conducting an effective cross examination. I therefore find that the applicant’s fair trial right to counsel for his legal representation was violated.

Issue 2

15. In addition to the foregoing, it also appears that the applicant was not accorded the necessary opportunity to adduce evidence in his defence by calling defence witnesses. The applicant told the trial court that he was going to call two witnesses in his defence. The trial court failed to have those two witnesses summoned to court to testify on behalf of the accused/applicant. The right to adduce (to call witnesses) and challenge (by way of cross examination) the evidence brought by the prosecution is one of the many fair trial rights that is guaranteed to every accused person by article 50 (2) (k) of the 2010 Constitution of Kenya. In find that the sentence of the appellant being placed on probation for three years by the trial court was influenced by the provisions of the Constitution in article 53 (1) (f) which allows detention of a minor as a measure of last resort and even then for a short period. This approach recognizes the requirement that the court has to take into the best interests of the child which are paramount in any proceedings in terms of article 53 (2) of the Constitution of Kenya.

16.  In the premises, I find that the applicant has succeeded in his application as his appeal has overwhelming chances of success.

17. I therefore allow his application with the result that the applicant is hereby released on bail on the same terms as in the trial court. Additionally, the applicant has to appear before the Deputy Registrar of this court for mention once every end of the month on a working day until his appeal is heard and determined.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT THROUGH VIDEO CONFERENCE AT NAIROBI THIS 10TH DAY OF MARCH 2022.

J M BWONWONG’A

JUDGE

In the presence of

Mr. Kinyua: Court Assistant

Mr. Kenda for the appellant/applicant

Mr. Abwajo for the Respondent.