The criminal appeal No. 100 of 2018 between Charles Otieno Awinda and the republic appeared before Court of Appeal Judge Justice T.W. Cherere.
The appeal is against the conviction and sentence of the appellant-Charles Otieno Awinda. The appellant had been convicted on April 6, 2017 (in Criminal case S.O 10 of 2016) at a Chief Magistrate’s court by senior resident magistrate Hon W. K. Onkunya.
The appellant had been sentenced on a defilement charge contrary to section 8 (1) as read with Section 8(3) of the Sexual Offences Act. Section 8(1) defines defilement as an act whereby a person causes penetration with a child whereas Section 8 (3) states that defilement with a child between 12 to 15 years is an offence that attracts a jail term of not less than 20 years.
Facts of the Case
According to the complainant, she recalled that on May 5, 2016 at about 9.00 pm, as she was going to sleep at her grandmothers house, Tabu (under the guise of a police officer) grabbed her jacket and arrested her for the offence of loitering. He then took her to a flower bed that was dark and defiled her.
The complainant,pw1, stated that there was an electric lighting at the particular crime scene where she had met the said person-the appellant. As per the testimony that she gave, the appellant was a familiar figure who lived approximately 1km from the complainant’s home. The complainant also mentioned that she reported the matter to her father who then took her to the hospital for examination.
According to pw2, the complainant was her 16 year old daughter and he escorted her to the hospital after she had recalled to her the ordeal.
Dr. Barbara Otieno, Pw3, said that she had filled the complainants P3 form on May 9, 2016 where she relied on the records which she obtained from the post rape care form that had been prepared by Richard Adede, Pw4, a clinical officer. According to Pw4, he filled the post rape care form which showed evidence of penetration in that the complainant had a bruised labia majora and minora; torn hymen and mild vaginal bleeding.
Pw5, Richard Kimutai, a government analyst stated that he received evidence in form of a pink dotted blood stained pant plus a blood stained skirt from the complainant and a buccal swab from the appellant. Upon examination of the DNA Samples, he found that the DNA profiles generated from the pant and skirt matched with the DNA profile of the appellant.
The Invesitgating officer, Amina Mohamed, in the case was the final prosecution witness. She confirmed that she received the complainant’s report on May 6, 2016 where she referred her to a hospital. She was also involved in collecting the pant, skirt and buccal swabs as evidence to be relied on. She also aided in arrest of the appellant.
The appellant in a sworn defence however, denied the offence stating that he was at home with his family on the material night. Further, he stated that he was framed for the offence by the complainants family due to an ongoing land feud between the two families.
Analysis and determination
The appeal is based on the fact that the appellant feels that the case was not proved by the prosecution beyond reasonable doubt.
The appeal was lodged on November 6, 2018 and submissions filled on October 3, 2019.
In determining the case, the honourable judge noted that from the report presented to the court by the government analyst, indeed their was penetration of the complainant as defined by Section 2 of the Sexual Offences Act.
However, albeit the judge acknowledged that the learned trial magistrate had held that the appellant was known to the complainant, there exists a difference between recognition and identification.
The judge opined that identification at night relies on the nature of the light, the strength of the light, its size and its position relative to the suspects as was held by the court of appeal in John Muriithi Nyaga v Republic  eKLR.
Consequently, he differed with the trial court in that the identification did not satisfy the test of identification at night as the trial court failed to evaluate the nature of the light, the strength of the light, the size of the light and its position as relative to the appellant. He relied on the absence of any inquiries by the prosecution as to the light condition at the scene of crime.
Furthermore, it was within the judge’s view that from the testimony given by the complainant’s father, it was questionable that the she informed her father of the ordeal but failed to mention the appellant as the offender whereas her memory was still fresh. Henceforth, the judge relied on this fact to conclude that the circumstances at the crime scene were not favorable for positive identification or recognition of the appellant as such non-disclosure ought to have sowed a seed of doubt in the mind of the learned trial magistrate concerning the identification of the appellant.
On a procedural and technicality point of view, the judge also relied on Section 122A of the Penal Code. This Section prescribes that only a police officer above the rank of an inspector may order in writing that a suspect of a serious offence to undergo a DNA sampling procedure, more so if reasonable grounds exist to believe that the procedure might produce evidence which will confirm or disprove the suspect as having committed the alleged offence. Therefore, according to the judge the DNA evidence in form of buccal swab’ produced in the court had not been obtained by an order in writing by a police officer of or above the rank of inspector as the Investigating officer was a corporal in rank.
Finally, the judge relied on Section 122C of the Penal Code that states the procedure in Section 122A should be obtained by written consent and accordingly there was no evidence that the appellant gave written consent to undergo the DNA sampling procedure. Consequently, the DNA samples were unlawfully obtained from the Appellant and ought to have been rejected by the trial court pursuant to Section 122D of the Penal Code that states results on samples obtained from the DNA sampling procedure are inadmissible in any proceedings against the suspect unless they are conducted within the confine of Section 122A and Section 122C.
For the aforementioned reasons Hon Justice T.W. Cherere of the Kisumu court of appeal on November 21, 2019 quashed the appellants conviction and set the sentence aside.
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