( An appeal from the anticipated ruling of Hon. Magwi Wilkister Ghati, Resident Magistrate, delivered in CMCC SO. No. E042 of 2025 )
RULING.
1. This appeal seeks to arrest the ruling set to be delivered by the trial court in CMCC SO No. E042 of 2025, Republic vs Alexander Nyaguri . The ruling, on whether the accused had a case to answer was set for delivery on the 4 th August 2026, and the Applicant filed the appeal and application under a Certificate of Urgency dated 15 th July 2026.
2. Briefly, the Applicant who is the accused in the lower court was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006 . Later, the charge sheet was amended by the Prosecution and the accused faced an alternative charge of committing an indecent act with a minor contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006 .
3. It is apparent from the application that the Appellant objected to the amendment of the charge by the state, an objection that was overruled. The matter then proceeded with the Appellant responding to the amended charge but has objected to the denial by the trial court for the opportunity to cross examine the witnesses in regard to the aspects introduced by the amendments. It is thus the subject of the appeal before this court.
Issues for determination .
4. From the appeal and submissions herein, there are two issues for this court to determine. These are:
a. Whether the trial court was right to allow the amendment.
b. If the Appellant should be allowed to cross examine the witnesses who had already testified .
5. On the first issue, the reliance is placed on the provisions of section 214 of the Criminal Procedure Code (CPC) . It provides as follows:
“( 1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that—
(i) where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;
(ii) 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.
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
(3) Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary .
6. It is clear for the above provisions that the Prosecution is generally allowed to amend the charge against the accused person at any stage before the close of the prosecution case. The amendment could include the addition or substitution of charges and the addition or substitution of persons to the charge. In the present case, it is clear that the Prosecution had not closed their case and thus the addition of the alternative charge was done within the ambit of the provisions of section 214 of the CPC. The requirement is that where the charges are amended, the accused person is granted the opportunity to both plead afresh and where necessary, apply for the recall of witnesses, in regard to the amendments made to the charge(s).
7. From the submissions herein, it is therefore not in dispute that the accused pleaded afresh to the charges and thus the appeal against the ruling of the trial court is not well founded.
8. On the second limb, the Appellant has asked that the court reviews the trial courts decision to deny the Appellant the recall of the witnesses who had already testified. Section 214 (1) (ii) of the CPC places a right on the accused person, where the charges have been amended to demand the recall for either fresh evidence or re-examination. That is a right that the accused person should not be denied.
9. From the appeal herein, the Appellant avers that the trial court declined his request to have the witnesses who had testified recalled for cross examination. The denial falls short of the dictates of section 214 (1) (ii) of the CPC . To allow the position to stand and the state to proceed and close its case, would directly infringe on the rights of the accused person under Article 50 of the Constitution , the right to fair trial and also the above provisions under section 214 of the CPC .
10. In that regard, and to ensure the fair and expeditious progression of the matter, I will allow the application and direct as follows:
i. The trial file be remitted back to the trial Magistrate, and the Appellant/Accused be allowed to recall any of the relevant witnesses for cross examination. In so doing, and in consideration of the provisions of section 214 of the CPC, the state is at liberty to elect whether they wish to recall any of their witnesses for fresh examination in chief before cross examination by the defence.
ii. Consequent to (i) above, the ruling on the case to answer be deferred until after the cross examination of the witnesses by the Appellant.
iii. The file to be mentioned before the trial court on the 15 th of September 2026 for appropriate directions on the finalization of the trial.
iv. No order as to costs .
Dated, signed and delivered in open court this 3 rd Day of September 2026.
HCCRA NO. E002 OF 2026 ALEXANDER NYAGURI VS REPUBLIC RULING Pg. 4
RULING.
1. This appeal seeks to arrest the ruling set to be delivered by the trial court in CMCC SO No. E042 of 2025, Republic vs Alexander Nyaguri . The ruling, on whether the accused had a case to answer was set for delivery on the 4 th August 2026, and the Applicant filed the appeal and application under a Certificate of Urgency dated 15 th July 2026.
2. Briefly, the Applicant who is the accused in the lower court was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006 . Later, the charge sheet was amended by the Prosecution and the accused faced an alternative charge of committing an indecent act with a minor contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006 .
3. It is apparent from the application that the Appellant objected to the amendment of the charge by the state, an objection that was overruled. The matter then proceeded with the Appellant responding to the amended charge but has objected to the denial by the trial court for the opportunity to cross examine the witnesses in regard to the aspects introduced by the amendments. It is thus the subject of the appeal before this court.
Issues for determination .
4. From the appeal and submissions herein, there are two issues for this court to determine. These are:
a. Whether the trial court was right to allow the amendment.
b. If the Appellant should be allowed to cross examine the witnesses who had already testified .
5. On the first issue, the reliance is placed on the provisions of section 214 of the Criminal Procedure Code (CPC) . It provides as follows:
“( 1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that—
(i) where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;
(ii) 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.
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
(3) Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary .
6. It is clear for the above provisions that the Prosecution is generally allowed to amend the charge against the accused person at any stage before the close of the prosecution case. The amendment could include the addition or substitution of charges and the addition or substitution of persons to the charge. In the present case, it is clear that the Prosecution had not closed their case and thus the addition of the alternative charge was done within the ambit of the provisions of section 214 of the CPC. The requirement is that where the charges are amended, the accused person is granted the opportunity to both plead afresh and where necessary, apply for the recall of witnesses, in regard to the amendments made to the charge(s).
7. From the submissions herein, it is therefore not in dispute that the accused pleaded afresh to the charges and thus the appeal against the ruling of the trial court is not well founded.
8. On the second limb, the Appellant has asked that the court reviews the trial courts decision to deny the Appellant the recall of the witnesses who had already testified. Section 214 (1) (ii) of the CPC places a right on the accused person, where the charges have been amended to demand the recall for either fresh evidence or re-examination. That is a right that the accused person should not be denied.
9. From the appeal herein, the Appellant avers that the trial court declined his request to have the witnesses who had testified recalled for cross examination. The denial falls short of the dictates of section 214 (1) (ii) of the CPC . To allow the position to stand and the state to proceed and close its case, would directly infringe on the rights of the accused person under Article 50 of the Constitution , the right to fair trial and also the above provisions under section 214 of the CPC .
10. In that regard, and to ensure the fair and expeditious progression of the matter, I will allow the application and direct as follows:
i. The trial file be remitted back to the trial Magistrate, and the Appellant/Accused be allowed to recall any of the relevant witnesses for cross examination. In so doing, and in consideration of the provisions of section 214 of the CPC, the state is at liberty to elect whether they wish to recall any of their witnesses for fresh examination in chief before cross examination by the defence.
ii. Consequent to (i) above, the ruling on the case to answer be deferred until after the cross examination of the witnesses by the Appellant.
iii. The file to be mentioned before the trial court on the 15 th of September 2026 for appropriate directions on the finalization of the trial.
iv. No order as to costs .
Dated, signed and delivered in open court this 3 rd Day of September 2026.
HCCRA NO. E002 OF 2026 ALEXANDER NYAGURI VS REPUBLIC RULING Pg. 4