Peter Githinji Kioi v Republic [2014] KEHC 4685 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 13   OF 2012

PETER GITHINJI KIOI…………………………………………………APPELLANT

-VERSUS-

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

RULING

The Appellant/Applicant Peter Githinji Kioi through his advocates Wangechi Munene and Co-Advocates moved this court through an application by way of Notice of Motion dated 25th June 2013 containing the following Prayers: _

That this Honourable court be pleased  to allow the appellant/applicant  to call for  additional evidence to wit DNA test  results of himself  and the child  born out of the alleged defilement  by the complainant in the lower court.

That upon  grant of prayers one above  this court be pleased to order  such DNA tests to be carried  out between him and the child born out of the alleged  defilement  and use his evidence  in the appeal herein.

That the costs of this application be provided for.

The application is premised  on grounds that the appellant  was charged and convicted in the lower court  with the offence  of defiling  the complainant  who was his daughter as a result of  which  she conceived  and gave birth  to a child on 13th November 2011; that a DNA test will conclusively  prove paternity of the child born out of the alleged  defilement and its results  which were not available  before the trial court will assist  this court determine  whether the appellant  was rightly or wrongly convicted.

The application is supported by an affidavit sworn by the appellant/Applicant on 25th June 2013 and a supplementary affidavit sworn by his counsel J.W. Munene on 5th December 2012.

The application is not opposed by the state.  Though served with the application the state  did not file a replying affidavit in opposition thereto and on 9th May 2014 when the application was  argued  interpartes, learned  state counsel  Mr Sitati  confirmed  to the court that the state was  not opposing  the application  provided the appellant met costs of  the DNA testing.

M/s Wangechi for the appellant submitted that the application ought to be allowed in the interest of justice as the additional evidence in the form of DNA results will reveal the truth regarding the paternity of the child born to the complainant who according to the prosecution case in the lower court was conceived as result of the offence of defilement for which the appellant was convicted and sentenced to 20 years imprisonment.

I have considered the grounds upon which the application is premised and the fact that it is not opposed by the state.

The law at Section 358 of the Criminal Procedure Code allows the High Court  to take and admit  additional evidence in a criminal appeal where in its opinion, such additional evidence  is necessary.

The principles which the court should apply in the exercise of its discretion in deciding whether or not to allow additional evidence to be called in a criminal appeal were set out by the East African Court of Appeal In the case of Elgood VS Regina (1968) EA 274 which was cited with approval by our Court of Appeal in Simon Mwangi Wambui VS Republic Criminal appeal NO. 280 of 2011.

Some of the guiding principles enumerated in the Elgood case  are that the evidence sought to be called  was not available in the trial court; it must be relevant  to the issues raised  in the Appeal; it must be credible  in the sense that it is capable of belief  and it must be evidence  which if considered by the court, it is of the opinion that  were it available before the trial court and was considered  alongside  other evidence , it may have created doubt  regarding  the guilt of the appellant as  charged .

I have perused the record of the proceedings in the trial court and read through the judgment delivered by the trial magistrate on     13th February 2012.  It is clear from the proceedings that the prosecution  case hinged  on the evidence that it is  the appellant  who defiled the complainant  who was his daughter as a result  of which  the complainant  conceived and bore a child on  31st October 2011.

From the trial court’s judgment, it is clear that this evidence formed the basis of the appellant’s conviction.

In this case, the additional evidence  sought to be adduced  on appeal is the  result of  DNA  profiles of the appellant  and the child  the prosecution claimed  was  the product of the offence  for which the appellant was tried , convicted and sentenced .

It is not disputed that the said evidence not available at the trial court.  It is important to note that the appellant was not represented by counsel during his trial and the reasons given for his failure to produce the evidence he now wishes to adduce as additional evidence in his appeal are plausible and acceptable.

In view of the foregoing and considering that the appellant  has all along maintained his  innocence, there cannot be any doubt that such  additional evidence  is not only  relevant to the issues raised  in this appeal but is also necessary for the just determination of the appeal.  Had such evidence been available to the trial court whether the results were positive or negative, I have no doubt in my mind that it would have influenced the mind of the learned trial magistrate one way or the other.

It is therefore my view that allowing the application as prayed will serve the interests of justice.

In the premises, I find that the application is merited and it is hereby allowed.   I consequently make the following orders:-

That DNA samples be taken from the child in question identified  in the birth certificate  annexed to the supplementary affidavit as PB and from the appellant  for DNA  profiling  by an independent  Government analyst  with expertise  and experience in DNA  screening .

The DNA screening to be undertaken in the nearest Government facility to be agreed upon by the parties.

The office of the  Director of Public Prosecutions  to liaise  with the officer In charge of Children Services  Kirinyaga County  and the Prison’s Department  to facilitate  the taking of the DNA  samples  from the child  and the appellant  at the appointed facility  within  the next 30 days.

The appellant to bear the cost of the entire exercise.

The appeal to be mentioned before the Deputy Registrar within the next two months for further orders.

These orders to be extracted and served on the officer Incharge Children Services Kirinyaga County and officer Incharge of the Prison in which the appellant is serving sentence.

C.W. GITHUA

JUDGE

DATED, SIGNED AND DELIVERED AT KERUGOYA THIS   28TH  DAY OF MAY 2014 in the presence of:-

The appellant

Mr Sitati for state

Mbogo Court Clerk.