M.M v Republic [2014] KECA 441 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: P. KIHARA KARIUKI, (PCA), OUKO & J. MOHAMMED, JJ.A)

CRIMINAL APPEAL NO. 41 OF 2013

BETWEEN

M M …………………………………… APPELLANT

VERSUS

REPUBLIC …………………………..RESPONDENT

(An appeal against theconviction and sentenceof the High Court of Kenya atMachakos (Asike-Makhandia, J.) dated5thOctober, 2012

in

HC.CR.A NO. 120OF 2011)

***********

JUDGMENT OF THE COURT

In convicting the appellant for the offence of defilement contrary to section8 (1)as read  with section  8 (2)of the Sexual Offences Act, the learned  trial magistrate relied on the evidence of the complainant’s mother who explained that on the fateful morning at 5. 30 am, she went to fetch water leaving behind her two children, the complainant  aged 4 years and her sibling aged 2 years, sleeping in her house. When she returned after 30 minutes, she heard the complainant  crying.

Upon entering the house, she found the appellant, a nephew  to her husband, in bed with the complainant.  His long trousers were below his knees. The witness called her husband (the complainant’s father) from his second wife’s house.   He confirmed that when he got to his first wife’s house he found the appellant in the house and the complainant was crying.

The complainant’s grandmother was called and upon examining her found that she had injuries in her private part. Although the complainant’s grandmother was not called to testify, the medical examination conducted by a clinical officer at Kyuso District Hospital on the same day (precisely  7 hours later) confirmed, from her broken hymen and live sperms that she had been penetrated.  The appellant was arrested and charged as explained  above.

After  conducting a  voir  direexamination,  the learned trial  magistrate recorded  as follows regarding the ability of the complainant to testify; “too tender and does not comprehend  what  she is being asked…..She  cannot adduce any evidence.”At  the prompting of  the prosecutor,  the trial court declared  the complainant  a vulnerable  witness and treated her mother  as her intermediary, and accordingly treating her evidence as such.

In  his  defence,  the appellant denied the allegations against  him  and maintained that the evidence  was fabricated  against  him due to his refusal to accede to the complainant’s mother’s persistent sexual advances and demands.  He also alleged that she owed him Kshs. 500/- which she refused to pay him. On the fateful day, after the complainant’s mother took away the appellant’s beddings, she inquired whether the latter had reported her advances to her husband and upon confirming having done so  she  went away only to return shortly  with  the complainant,  her father and grandmother  claiming that he (the appellant)  had defiled the complainant.

The learned  trial magistrate  was persuaded by the prosecution  witnesses’ evidence but dismissed  the appellant’s  defence  as unbelievable  amounting  to a mere denial.  In convicting the appellant  the learned  magistrate found that the appellant  committed the offence for  four (4) reasons;  that he left  where  he ordinarily slept in the granary and went into the house where the complainant  was sleeping with the intention of committing defilement; that live spermatozoa was found in the private part of the complainant; that medical examination found that there was penetration; and that the complainant’s mother found the appellant in the act. Upon conviction, the appellant was sentenced to life imprisonment.

Aggrieved, he challenged that decision in the High Court, where Makhandia, J (as he then was) in dismissing the appeal concluded that there was overwhelming evidence in support  of the charge;  that the appellant  was  found in the act of committing the offence; that between the time of the offence up to the time the complainant was examined by the clinical officer, she was in the company of her parents and the police; that failure of the complainant to testify was not fatal as section 31of the Sexual Offences Act was complied with while at the same time the complainant’s mother  was treated as an intermediary; that her evidence was corroborated  by the complainant’s  father and medical evidence. The learned Judge, just like the trial magistrate found no substance in the appellant’s claim that there was a grudge between him and the complainant’s mother, holding that if such a grudge existed, he ought to have raised it in the course of cross-examination but did not. The appellant who has been unrepresented through his trial and in the two appeals now brings this second appeal on four grounds which we have condensed into three as follows:-

i)         That the language used in the trial is not indicated on record of the trial court.

ii)       That without subjecting him to medical examination, the evidence upon which he was convicted was not conclusive.

iii)     That there was contradiction  on the date the appellant  was examined. That according to the clinical officer, the complainant  was examined on 2nd  February,  2009 and not on 7th  February,  2009 as recorded  in the medical examination form, some 5 days before the date of the alleged offence.

Relying on the English case of Woolminton V. the D.P.P.[1935] A.C. 462 the appellant urged us to find that the prosecution failed to prove its case against him and to acquit him as he had no obligation to prove his innocence.

As required of us by section 361 (1)of the Criminal Procedure Code on second appeal, we are only concerned with matters of law.   From the grounds of appeal, summarized above, we are satisfied that, save for the question whether the complainant  was examined  by the clinical officer on 2nd  or 7th February, 2009, which is a question of fact, the rest of the grounds raise matters of law.

Was the charge against the appellant proved to the required standard?

The victim of defilement, a girl aged 4 years did not testify after the learned trial magistrate stood her down due to her inability to comprehend the proceedings, leaving the parents’ and the medical  evidence  as the only links incriminating the appellant. The learned  trial magistrate  was of the view that the complainant’s mother’s evidence could serve as that of an intermediary in terms of section 31 (3)of the Sexual Offences Act, a view shared by the learned Judge of the High Court.

While questioning the propriety of the procedure adopted by the trial court in the treatment  of the complainant’s  mother’s  evidence  Mr.  Orinda, learned counsel for  the respondent,  wondered  whether it  was  not prejudicial to the appellant  for the trial court to merely ratify evidence already  presented without giving the appellant  notice or opportunity to cross-examine  the complainant’s mother in her new capacity  as an intermediary.   That view notwithstanding, Mr. Orinda maintained that even without  the evidence of  an intermediary the prosecution evidence was overwhelming.

In order to answer the above question, it is necessary to examine the role and use of an intermediary in a trial.

The use of an intermediary in evidence is a unique and novel phenomenon in our jurisprudence, introduced upon the enactment of the Sexual Offences Act, 2006 and few years later reproduced in Article 50 (7)of Constitution of Kenya, 2010.

There is no unanimity in the few local decisions we have sampled regarding the procedure for appointment  and the role of an intermediary, perhaps explaining the difficulty Mr. Orinda had in taking a  position that could have assisted  the Court. For instance, in Kennedy Chimwani Mulokoto V. RepublicEldoret High Court Criminal Appeal No. 51 of 2011, Ochieng,  J. found that the trial magistrate properly appointed  as an intermediary the mother of a 3 year old girl, a victim of defilement who was unable to testify, due to her tender years.  The learned Judge said:-

“When the mother of the little girl gave her evidence,  she was deemed to be giving evidence on behalf of that little girl…..Therefore, for all intents and purposes, when the mother of the little girl gave  evidence,  she did so  as  a legally  recognized intermediary, for and on behalf of the little girl.  Such evidence was admissible.”(Emphasis ours).

We do not have the record of the trial court to see how the victim’s mother was appointed an intermediary.  But from the above passage it would appear the victim’s mother’s testimony which was given earlier was simply adopted as that of an intermediary. See also T.C.K V. RMilimani HC. Criminal Appeal No. 453 of

2010, Francis Ogoti Otundo V. Republic Nkr. H. C. CR. Revision Case No. 397 of 2012, Joseph Kamau Kirubi V. RepublicCriminal Appeal No. 303 of 2010 and  Marcus Muriuki V. RepublicMeru H. C. CR. Appeal No. 215 of 2009. These cases demonstrate  that both the trial courts and the first appellate court have not given sufficient consideration to the question of procedure of appointment and role of an intermediary in a trial.

The provision of the services of an intermediary in a criminal trial today constitutes a right to a fair trial guaranteed in Article 50 (7)of the Constitution.  It stipulates as follows:-

“(7) In the interest of justice, a court may allow an intermediary to assist   a   complainant or   an   accused    person to communicate with the court.”

Unlike section  31the above Article  does  not draw a  distinction  between  the complainant and the accused  person.   Both  can enjoy the services   of  an intermediary.  Section 31 (2)on the other hand provides that:-

(2) The court  may, on its  own initiative or  on request  of the prosecution or any witness other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1), declare  any such  witness, other than the accused, a vulnerable witness if in the court’s opinion he or she is likely to be vulnerable on account of –

(a)age;

(b)      intellectual, psychologicalor physical impairment; (c)      trauma;

(d)     culturaldifferences;

(e)     thepossibility ofintimidation; (f)      race;

(g)religion;

(h)          language;

(i)      the relationship of the witness to any party to the proceedings;

(j)      the nature of the subject matter of the evidence; or

(k)     any  other  factor  the  court  considers     relevant.”

(Emphasis supplied)

This suggests that the accused person under the Sexual Offences Act is not regarded  as a vulnerable  person  to benefit from the services of an intermediary service.  Section2of the Sexual offences Act, defines an intermediary to mean:

“…..a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of a vulnerable witness  and may include a parent, relative, psychologist, counselor, guardian, children’s officer or social worker.”

A person is said to be vulnerable under section 2aforesaid when the person is a child, a person  with mental disabilities or elderly person. By dint of section 31,a court in a case involving alleged commission of a sexual offence may, on its own motion or on request, declare  a witness (but not the accused person)  in the proceedings,  a vulnerable  witness if that witness is himself or herself the alleged victim of a sexual  offence, a child or a person  with mental disability.  In making the declaration the court will be guided, as shown above, by the age, intellectual, psychological or physical impairment of the witness, trauma, cultural differences, the possibility  of intimidation, race,  religion, language,  the relationship  to any party, the nature of the subject matter of the evidence and any other factor that the court may consider relevant. Appointment  of an intermediary is therefore one of the measures of witness protection.

The role of an intermediary is provided for in subsection 7of section 31 namely, to convey the substance of any question to the vulnerable witness, inform the court at any time that the witness is fatigued or stressed; and to request the court for a recess.

It is difficult for a child or indeed a victim of a sexual  attack  to publicly relive the most traumatic and humiliating experience of their lives in order to get justice, more  so,  if  they have to be subjected  to the rigors  of daunting and intimidating cross-examination.  The thinking behind the enactment of section 31was, in our view, to moderate these traumatic effects in criminal proceedings.

It is clear from sections 31 (2)and 32that, first and foremost it is the duty of the prosecution to ascertain the vulnerability of the witness and to apply to the court to make that declaration before appointing an intermediary. In addition, the court, as we  have earlier observed,  can on its  own motion, through voir direexamination, declare a witness vulnerable and proceed to appoint an intermediary. Any witness (other than the one to be declared vulnerable)  can likewise apply to the court for the declaration.  The application must not be granted merely because the victim is young or too old or appears to be suffering from mental disorder.  The court itself must be satisfied that the victim or the witness would be exposed to undue mental stress and suffering before an intermediary can be appointed.

It is clear from what we have said so far that the procedure of appointing an intermediary preceeds the testimony of the intended vulnerable witness even where the court does so suomoto. It is also clear that an intermediary can be an expert in a specified field or a person, who through experience, possesses special  knowledge in an area or a social worker, or a relative, a parent or a guardian of the witness.

The expertise,  possession  of special  knowledge  or relationship  with the witness  must be ascertained  by  the trial  court through examination  of  the prospective  intermediary  before  the court appoints him or her.  It goes without saying, in view of that role, that an intermediary must subscribe to an appropriate oath ahead of the witness’ testimony, undertaking to convey correctly and to the best of his/her ability the general purport of the evidence. The trial court must then give directions  to delineate  the extent of the intermediary’s  participation  in the proceedings.

Is an intermediary the mouth piece of the vulnerable witness or is he or she the witness?  According to section 2of the Sexual Offences Act, an intermediary is defined to mean among other things,  a person who gives evidence on behalf of a vulnerable witness.

Section 31(1)provides inter aliathat:-

“A court shall  not convict  an accused person  charged  with an offence under this Act solely on the uncorroborated  evidence of an intermediary.”

We have seen that in Article 50 (7)of the Constitution an intermediary is a medium through which the accused person or complainant communicates with the court.  In our understanding,  the evidence  to be presented  is  not that of the intermediary himself or herself but that of the witness relayed to court through the intermediary. The intermediary’s  role  is  to communicate  to the witness  the questions put to the witness and to communicate to the court the answers from the victim to the person asking the questions, and to explain such questions or answers, so far as necessary  for them to be understood by the witness  or person asking questions  in a  manner  understandable   to the victim, while  at the same time according the victim protection  from unfamiliar environment and hostile  cross- examination;  to monitor the witness’  emotional and psychological   state  and concentration, and to alert the trial court of any difficulties.

The key word in sub section 7is emphasized as shown  below to demonstrate the place of the intermediary’s evidence.

“If a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may;

a) convey the general purport  of any question to the relevant witness.

b) inform the court at any time that the witness  is fatigued or stressed; and

c) request the court for a recess.”(Emphasis supplied)

The word through is  used also  in  subsection  4 (b)in  describing  the protection of the witness by providing  an intermediary through whom his evidence is  relayed.  It is  the witness  who gives the evidence  which is  explained  and communicated to the court and the reverse through an intermediary in the manner and style developed between the two.

As a general rule of evidence embodied in section 125of the Evidence Act, no person is precluded from giving evidence, except to the extent the court may determine.  Section 125provides that:-

“125. (1)  All persons shall be competent to testify unless the court considers  that they are  prevented from understanding the questions put to them, or from  giving rational  answers   to those questions,  by tender  years, extreme  old age, disease   (whether of  body or  mind) or  any similar cause.

(2) A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put  to  him and giving rational answers  to them.”

Because  of the reality that a  child of tender  years,  or an extremely old person, or a person affected by disease of the body or mind or even a lunatic may have difficulties  relating to the trial court events  in a  crime,  the role  of an intermediary in such situations is imperative.  Indeed in jurisdictions such as South Africa, England and Wales, intermediaries  are professionals  whose services are sourced by the court when the need arises.   Perhaps that is what the framers of section2 of our Sexual Offences Act had in mind when they included experts, psychologists, counselors and social workers in the definition of “intermediaries”.

The whole object of the proceedings through an intermediary is to achieve fairness in the determination of the rights of all the people involved in a trial and to promote the welfare of a child or vulnerable witness.

Turning to the appeal before us, we reiterate that the victim did not herself testify due to her tender years.  In cases like this where the victim is too young to give evidence, section 33of the Sexual Offences Act allows the trial Court to rely on either the evidence of the surrounding circumstances, or under section 31 (4),to give evidence through an intermediary or both.

In  the absence  of  the complainant’s  testimony,  there  was  independent evidence of the complainant’s mother, that of the father and the clinical officer that linked the appellant to the defilement of the complainant. From what we have said, we conclude that it was in error for the two courts below to treat the evidence of the complainant’s mother  as that of an intermediary, the steps leading to such appointment having not been followed.  It was sufficient  to rely on her direct evidence as an independent eye witness.

Any requirement that insists on a child victim of defilement, irrespective of his or her age to testify  in order to found a conviction would occasion  serious miscarriage of justice.  What fair hearing would a child victim aged six (6) months, like that in the case of Robinson Tole Mwakuyanda V. R.HC. Cr. Appeal No.

227 of 2007, get if the courts were to insist on the evidence of such a child, who on account of his/her tender age cannot speak.

In the circumstances of the present appeal and contrary  to the demands of the appellant, it was unnecessary to conduct forensic examination in order to link the appellant  with the complainant’s  defilement.  He  was  found lying on the

complainant  with his  trousers down.  On examination,  a  few hours  later, the complainant was found to have been defiled. That was sufficient evidence linking the appellant with the offence. His defence was properly dismissed and we agree with the finding of the High Court that it was an afterthought.

We also find no merit on the appellant’s claim that he did not understand the proceedings on account of the language used at the trial. It is plain to us from the record that the charges were read in Kiswahili language.Throughout the trial, the record shows an active accused person, cross-examining witnesses, making various applications and giving a long unsworn defence.  That ground must similarly fail.

In the result, this appeal is without merit and accordingly dismissed.

Dated and deliveredat Nairobi this 18thday of July2014.

P.KIHARA KARIUKI, (PCA)

…………………………

JUDGE OF APPEAL

W. OUKO

……………………………

JUDGE OF APPEAL

J.MOHAMMED

………………….………..

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR