(Appeal from the original conviction and sentence by Hon. S.D.Sitati, SRM in Kilifi Senior Principal Magistrate’s Court Sexual Offence Case No. 36 of 2020 delivered on 8/8/2024)
1. The Appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 20 years imprisonment. The particulars of the offence were that on diverse dates between January, 2020 and May, 2020 at (name withheld) in Kilifi South Sub County within Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of M.W. (herein referred to as the complainant), a child aged 13 years.
2. The Appellant was aggrieved by the conviction and the sentence of the trial court and lodged the instant appeal. The grounds of appeal are in summary that:
1. The ingredients of the offence of defilement were not proved.
2. That the prosecution failed to call crucial witnesses in the case.
3. That the conviction was not supported by the evidence adduced before the court.
4. That the sentence was against the weight of the evidence.
3. The prosecution called two witnesses in the case, the complainant PW1 and her mother PW2.The evidence of the two witnesses was taken by Hon. Kituku, Senior Principal Magistrate on 22/9/2021. After the doctor and the investigating officer failed to turn up in court on several occasions, the trial magistrate ordered the prosecution case closed on 21/1/2023. On 9/3/2023 he ruled that the Appellant had a case to answer. The case was fixed for hearing on 29/6/2023 when hearing did not proceed for an unstated reason and was adjourned to 27/7/2023. The Appellant did not turn up on that day and warrant of arrest was issued.
4. The case was mentioned on 7/9/2023 when the appellant was still not present. He turned up on 9/10/2023 but the prosecutor was reported to be away on training in Arusha. The matter was put for mention on 13/11/2023 but it was not mentioned until 2/5/2024 when the appellant was absent. Hon. Nang`ea directed that the case proceeds in the absence of the appellant and fixed the same for judgment on 23/5/2023. Hon. Nang`ea was then elevated to the High Court and judgment was written and delivered by Hon. Sitati on 25/7/2024 in the presence of the Appellant. The appellant gave his mitigation and he was sentenced as stated above.
5. The complainant testified in court on 21/9/2021. It was her testimony that she was aged 13 years and was a class 3 pupil. That she was staying with her mother PW2. That the Appellant was her neighbour.
6. The complainant told the court that sometimes in the month of November 2019, the Appellant went to her home and gave her Ksh.100-/ to buy clothes. That she bought a skirt and a shirt. That in the month of January 2020, the Appellant invited her to his house. She went there during the day and they had sex. She later returned to her home. After that day she went to his house on three occasions and they engaged in sex. She conceived out of the sexual escapades. She gave birth to a baby boy.
7. The mother to the complainant PW2 testified that the complainant was at the material time aged 13 years. That in the month of May 2020 she met her chairlady who asked her whether she knew that her daughter, the complainant, was pregnant. She inquired from the complainant who confirmed that she was indeed pregnant. She told her that it is their neighbour, the Appellant, who had made her pregnant. She escorted her to Vipingo police station where they made a report. They were issued with a P3 form and referred to hospital for examination. She was examined at Vipingo and found to be two months pregnant.
8. That was the only evidence adduced in the case from which the Appellant was convicted and sentenced.
9. The appeal was canvassed by way of written submissions.
Appellant`s submissions
11. The Appellant submitted that no evidence was laid before the court to prove that the complainant was a minor. That the age assessment report that was marked for identification was not produced in court. He submitted that a document marked for identification during the hearing but not produced cannot be used as evidence.
12. It was submitted that the trial court did not conduct a voir dire examination on the complainant as required by the law before she was allowed to give her evidence in court. That this occasioned a miscarriage of justice on the Appellant.
13. The Appellant submitted that penetration was not proved as the complainant did not narrate to the trial court the details of the defilement such as the number of times she was lured into the Appellant`s house, how the defilement took place or the actions she took after the defilement.
14. It was submitted that nobody saw the complainant going to the house of the Appellant. That the prosecution failed to call crucial witnesses such as the investigating officer. That the clothes he was said to have bought the complainant were not produced. That no medical evidence was adduced proving that he committed the offence or that he was the father to the complainant`s child.
15. It was submitted that the offence was not proved beyond reasonable doubt. The Appellant urged the court to allow the appeal.
16. The Respondent on the other hand submitted that the complainant told the trial court that she was aged 15 ½ years at the time of the incident. A clinic card was produced that indicated that the complainant was born on 18/10/2005 which placed her age in December 2020 at 15 years. Therefore, that the age of the complainant was proved.
17. It was submitted that the complainant narrated to the court how the Appellant took her to his house and penetrated her. That this evidence was corroborated by medical evidence. More so that the trial court believed the evidence of the complainant as per the provisions of section 124 of the Evidence Act that she was penetrated by the Appellant. Therefore, that penetration was proved.
18. On identification of the Appellant, it was submitted that the Appellant was well known to the complainant. That the complainant had at one time been engaged to construct a house at the home of the complainant. That identification was by recognition. Therefore, that the element of identification was proved.
19. It was submitted that failure to call the other witnesses is not fatal to the case as section 43 of the Evidence Act provides that there are no particular number of witnesses required to prove a certain fact. That the trial court believed the evidence of the complainant. Therefore, that failure to call the other witnesses did not water down the testimony of the complainant.
20. It was submitted that the Appellant did not substantiate his defence that the mother to the complainant owed him some money. Additionally, that the complainant in the case is PW1 and not her mother. That the Appellant did not challenge the evidence of the prosecution and the trial court was right in disregarding his defence. The Respondent urged the court to dismiss the appeal.
Analysis and determination
21. This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In Okeno vs. Republic [1972] EA 32, the Court of Appeal for East Africa had the following to say in this connection:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination … and to the appellate court’s own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions…It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses…
22. It was the duty of the prosecution to prove the charge against the Appellant beyond reasonable doubt.
23. The appellant was convicted for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No.3 of 2006. The section provides as follows:
(1)
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3)
A person who commits an offence of defilement with a child of between the age of twelve and fifteen years is liable upon conviction to imprisonment for a period of not less than twenty years.
24. The complainant in her evidence in court stated that she was at the material time aged 13 years. The complainant was therefore a child of tender age. That being the case, the trial court was required to conduct a voir dire examination on her before admitting her evidence in court. This is as required by section 19 of the Oaths and Statutory Declarations Act which provides that:
“(1) Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.
25. I have noted from the court proceedings that Hon. Kituku did not conduct a voir dire examination on the complainant before admitting her evidence.
26. The purpose of voir dire examination is meant to ascertain whether the child understood the nature of oath in which case the child can give sworn evidence. Where the court in a voir dire examination finds that the child does not understand the meaning of oath, the court is required to find out whether the child is possessed of sufficient intelligence to justify the reception of his/her evidence and understands the duty of speaking the truth. If the finding is in the positive, the child may be allowed to give unsworn evidence. This was well explained by the Court of Appeal in the case of Johnson Muiruri vs. R (1983) KLR 445 as follows: -
“We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are rendered as witnesses. In Peter Kirigo Kiune, Criminal Appeal No.77 of 1982 (unreported) we said: -
“When in any proceeding before any court, a child of tender years is called as a witness, the court is required to form an opinion, on voir dire examination, whether the child understands the nature of an oath in which event sworn evidence may be received. If the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him (Section 19, Oaths and statutory Declaration Act, Cap 15). The Evidence Act (Section 124, Cap 80)…….”
27. The trial court in this case allowed the minor to give sworn evidence before ascertaining whether she was possessed of sufficient intelligence to justify the reception of her evidence and understood the duty of speaking the truth. Compliance with section 19 of the Oaths and Statutory Declarations Act is mandatory. The procedure taken by the learned magistrate to admit the evidence of the child without conducting a voir dire examination was irregular.
28. It is settled law that failure to observe the provisions as to voir dire does not automatically vitiate the conviction but such evidence cannot be the basis of a conviction unless there is independent evidence to support the charge. The Court of Appeal in Maripett Loonkomok vs. Republic [2016] eKLR dealt with the effect of failing to conduct a voir dire examination on a child of tender years and stated as follows:
It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that;
“In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.” See Athumani Ali Mwinyi v R Cr. Appeal No.11 of 2015.
29. Again, the Court of Appeal in John Okeno Oloo -vs- R, Criminal Appeal No. 350 of 2003 (unreported and as cited in Sammy Ngetich v Republic [2018] eKLR ) stated as follows: -
“In our view, whereas we agree that as concerns C, who was said was 13 years old, the trial court should have, note of caution, formed an opinion on a voir dire examination whether she understood the nature of an oath before she could be sworn. We do not agree with the superior court that failure to do so could not have occasioned miscarriage of justice had that been their only witness on the issue that was before the Court.”
30. In Samuel Warui Karimi v Republic [2016] eKLR where a voir dire trial was not conducted on a 12 year-old, the Court of Appeal said that the purpose of undertaking voire dire examination in a criminal trial is to protect the guaranteed right of a fair trial. The court accordingly held that evidence of the victim was not properly received and the conviction of the appellant was unsafe.
31. In Abdi Abdiraham & another v Republic (2013) eKLR, the High Court at Garissa set aside a conviction and sentence of the appellant on account of failure on the part of the trial magistrate to conduct voir dire examination of the child who was aged 13 years at the time she gave evidence.
32. In view of the foregoing, the evidence of the victim in this case could not be used to convict the Appellant for failure by the trial court to conduct voir dire examination unless there was independent evidence to support the charge. The victim was the only witness that the Appellant defiled her. There was no independent evidence to support that.
33. Consequently, it is my finding that failure by the trial court to conduct a voir dire examination on the complainant before admitting her evidence violated the right of the Appellant to fair trial. The question is whether I should order a re-trial.
34. It is trite that a retrial can only be ordered where it will not occasion injustice or prejudice to the appellant. The same cannot be ordered so as to give the prosecution an opportunity to fill in the gaps noted during the trial. The court has also to consider whether a conviction may result if a re-trial is ordered. The East Africa Court of Appeal in Fatehali Manji v Republic (1966) EA 343 stated as follows on the issue:
“In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person. ”
35. In Mwangi v Republic (1983) KLR 522 the Court of Appeal also held thus:
“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”
36. In the case against the Appellant, material witnesses such as the doctor who examined the complainant and the investigating officer were not called to testify in the case. The clothes the complainant was alleging that the Appellant bought her were not produced. A DNA was not conducted on the baby born to the complainant to ascertain whether the Appellant was the father to the child. In case that a re-trial is ordered, there is a possibility of the prosecution trying to call the evidence of the witnesses who were not called so as to seal-in the gaps left open during the trial. This will be prejudicial to the Appellant and will occasion him an injustice. The justice of the case does not call for a retrial. I will thereby acquit the appellant of the charges.
37. The upshot is that the conviction entered by the trial court is quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held.
Delivered, dated and signed at GARSEN this 13 th day of May 2026
In the presence of:
Mr. Oluoch HB for Miss Ngina Mutua for Respondent
Appellant - present virtually at G.K. Prison Malindi
Court Assistant - Rahma
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1. The Appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 20 years imprisonment. The particulars of the offence were that on diverse dates between January, 2020 and May, 2020 at (name withheld) in Kilifi South Sub County within Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of M.W. (herein referred to as the complainant), a child aged 13 years.
2. The Appellant was aggrieved by the conviction and the sentence of the trial court and lodged the instant appeal. The grounds of appeal are in summary that:
1. The ingredients of the offence of defilement were not proved.
2. That the prosecution failed to call crucial witnesses in the case.
3. That the conviction was not supported by the evidence adduced before the court.
4. That the sentence was against the weight of the evidence.
3. The prosecution called two witnesses in the case, the complainant PW1 and her mother PW2.The evidence of the two witnesses was taken by Hon. Kituku, Senior Principal Magistrate on 22/9/2021. After the doctor and the investigating officer failed to turn up in court on several occasions, the trial magistrate ordered the prosecution case closed on 21/1/2023. On 9/3/2023 he ruled that the Appellant had a case to answer. The case was fixed for hearing on 29/6/2023 when hearing did not proceed for an unstated reason and was adjourned to 27/7/2023. The Appellant did not turn up on that day and warrant of arrest was issued.
4. The case was mentioned on 7/9/2023 when the appellant was still not present. He turned up on 9/10/2023 but the prosecutor was reported to be away on training in Arusha. The matter was put for mention on 13/11/2023 but it was not mentioned until 2/5/2024 when the appellant was absent. Hon. Nang`ea directed that the case proceeds in the absence of the appellant and fixed the same for judgment on 23/5/2023. Hon. Nang`ea was then elevated to the High Court and judgment was written and delivered by Hon. Sitati on 25/7/2024 in the presence of the Appellant. The appellant gave his mitigation and he was sentenced as stated above.
5. The complainant testified in court on 21/9/2021. It was her testimony that she was aged 13 years and was a class 3 pupil. That she was staying with her mother PW2. That the Appellant was her neighbour.
6. The complainant told the court that sometimes in the month of November 2019, the Appellant went to her home and gave her Ksh.100-/ to buy clothes. That she bought a skirt and a shirt. That in the month of January 2020, the Appellant invited her to his house. She went there during the day and they had sex. She later returned to her home. After that day she went to his house on three occasions and they engaged in sex. She conceived out of the sexual escapades. She gave birth to a baby boy.
7. The mother to the complainant PW2 testified that the complainant was at the material time aged 13 years. That in the month of May 2020 she met her chairlady who asked her whether she knew that her daughter, the complainant, was pregnant. She inquired from the complainant who confirmed that she was indeed pregnant. She told her that it is their neighbour, the Appellant, who had made her pregnant. She escorted her to Vipingo police station where they made a report. They were issued with a P3 form and referred to hospital for examination. She was examined at Vipingo and found to be two months pregnant.
8. That was the only evidence adduced in the case from which the Appellant was convicted and sentenced.
9. The appeal was canvassed by way of written submissions.
Appellant`s submissions
11. The Appellant submitted that no evidence was laid before the court to prove that the complainant was a minor. That the age assessment report that was marked for identification was not produced in court. He submitted that a document marked for identification during the hearing but not produced cannot be used as evidence.
12. It was submitted that the trial court did not conduct a voir dire examination on the complainant as required by the law before she was allowed to give her evidence in court. That this occasioned a miscarriage of justice on the Appellant.
13. The Appellant submitted that penetration was not proved as the complainant did not narrate to the trial court the details of the defilement such as the number of times she was lured into the Appellant`s house, how the defilement took place or the actions she took after the defilement.
14. It was submitted that nobody saw the complainant going to the house of the Appellant. That the prosecution failed to call crucial witnesses such as the investigating officer. That the clothes he was said to have bought the complainant were not produced. That no medical evidence was adduced proving that he committed the offence or that he was the father to the complainant`s child.
15. It was submitted that the offence was not proved beyond reasonable doubt. The Appellant urged the court to allow the appeal.
16. The Respondent on the other hand submitted that the complainant told the trial court that she was aged 15 ½ years at the time of the incident. A clinic card was produced that indicated that the complainant was born on 18/10/2005 which placed her age in December 2020 at 15 years. Therefore, that the age of the complainant was proved.
17. It was submitted that the complainant narrated to the court how the Appellant took her to his house and penetrated her. That this evidence was corroborated by medical evidence. More so that the trial court believed the evidence of the complainant as per the provisions of section 124 of the Evidence Act that she was penetrated by the Appellant. Therefore, that penetration was proved.
18. On identification of the Appellant, it was submitted that the Appellant was well known to the complainant. That the complainant had at one time been engaged to construct a house at the home of the complainant. That identification was by recognition. Therefore, that the element of identification was proved.
19. It was submitted that failure to call the other witnesses is not fatal to the case as section 43 of the Evidence Act provides that there are no particular number of witnesses required to prove a certain fact. That the trial court believed the evidence of the complainant. Therefore, that failure to call the other witnesses did not water down the testimony of the complainant.
20. It was submitted that the Appellant did not substantiate his defence that the mother to the complainant owed him some money. Additionally, that the complainant in the case is PW1 and not her mother. That the Appellant did not challenge the evidence of the prosecution and the trial court was right in disregarding his defence. The Respondent urged the court to dismiss the appeal.
Analysis and determination
21. This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In Okeno vs. Republic [1972] EA 32, the Court of Appeal for East Africa had the following to say in this connection:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination … and to the appellate court’s own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions…It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses…
22. It was the duty of the prosecution to prove the charge against the Appellant beyond reasonable doubt.
23. The appellant was convicted for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No.3 of 2006. The section provides as follows:
(1)
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3)
A person who commits an offence of defilement with a child of between the age of twelve and fifteen years is liable upon conviction to imprisonment for a period of not less than twenty years.
24. The complainant in her evidence in court stated that she was at the material time aged 13 years. The complainant was therefore a child of tender age. That being the case, the trial court was required to conduct a voir dire examination on her before admitting her evidence in court. This is as required by section 19 of the Oaths and Statutory Declarations Act which provides that:
“(1) Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.
25. I have noted from the court proceedings that Hon. Kituku did not conduct a voir dire examination on the complainant before admitting her evidence.
26. The purpose of voir dire examination is meant to ascertain whether the child understood the nature of oath in which case the child can give sworn evidence. Where the court in a voir dire examination finds that the child does not understand the meaning of oath, the court is required to find out whether the child is possessed of sufficient intelligence to justify the reception of his/her evidence and understands the duty of speaking the truth. If the finding is in the positive, the child may be allowed to give unsworn evidence. This was well explained by the Court of Appeal in the case of Johnson Muiruri vs. R (1983) KLR 445 as follows: -
“We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are rendered as witnesses. In Peter Kirigo Kiune, Criminal Appeal No.77 of 1982 (unreported) we said: -
“When in any proceeding before any court, a child of tender years is called as a witness, the court is required to form an opinion, on voir dire examination, whether the child understands the nature of an oath in which event sworn evidence may be received. If the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him (Section 19, Oaths and statutory Declaration Act, Cap 15). The Evidence Act (Section 124, Cap 80)…….”
27. The trial court in this case allowed the minor to give sworn evidence before ascertaining whether she was possessed of sufficient intelligence to justify the reception of her evidence and understood the duty of speaking the truth. Compliance with section 19 of the Oaths and Statutory Declarations Act is mandatory. The procedure taken by the learned magistrate to admit the evidence of the child without conducting a voir dire examination was irregular.
28. It is settled law that failure to observe the provisions as to voir dire does not automatically vitiate the conviction but such evidence cannot be the basis of a conviction unless there is independent evidence to support the charge. The Court of Appeal in Maripett Loonkomok vs. Republic [2016] eKLR dealt with the effect of failing to conduct a voir dire examination on a child of tender years and stated as follows:
It follows from a long line of decisions that voir dire examination on children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. But the evidence taken without examination of a child of tender years to determine the child’s intelligence or understanding of the nature of the oath cannot be used to convict an accused person. But it is equally true, as this Court recently found that;
“In appropriate case where voir dire is not conducted, but there is sufficient independent evidence to support the charge… the court may still be able to uphold the conviction.” See Athumani Ali Mwinyi v R Cr. Appeal No.11 of 2015.
29. Again, the Court of Appeal in John Okeno Oloo -vs- R, Criminal Appeal No. 350 of 2003 (unreported and as cited in Sammy Ngetich v Republic [2018] eKLR ) stated as follows: -
“In our view, whereas we agree that as concerns C, who was said was 13 years old, the trial court should have, note of caution, formed an opinion on a voir dire examination whether she understood the nature of an oath before she could be sworn. We do not agree with the superior court that failure to do so could not have occasioned miscarriage of justice had that been their only witness on the issue that was before the Court.”
30. In Samuel Warui Karimi v Republic [2016] eKLR where a voir dire trial was not conducted on a 12 year-old, the Court of Appeal said that the purpose of undertaking voire dire examination in a criminal trial is to protect the guaranteed right of a fair trial. The court accordingly held that evidence of the victim was not properly received and the conviction of the appellant was unsafe.
31. In Abdi Abdiraham & another v Republic (2013) eKLR, the High Court at Garissa set aside a conviction and sentence of the appellant on account of failure on the part of the trial magistrate to conduct voir dire examination of the child who was aged 13 years at the time she gave evidence.
32. In view of the foregoing, the evidence of the victim in this case could not be used to convict the Appellant for failure by the trial court to conduct voir dire examination unless there was independent evidence to support the charge. The victim was the only witness that the Appellant defiled her. There was no independent evidence to support that.
33. Consequently, it is my finding that failure by the trial court to conduct a voir dire examination on the complainant before admitting her evidence violated the right of the Appellant to fair trial. The question is whether I should order a re-trial.
34. It is trite that a retrial can only be ordered where it will not occasion injustice or prejudice to the appellant. The same cannot be ordered so as to give the prosecution an opportunity to fill in the gaps noted during the trial. The court has also to consider whether a conviction may result if a re-trial is ordered. The East Africa Court of Appeal in Fatehali Manji v Republic (1966) EA 343 stated as follows on the issue:
“In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person. ”
35. In Mwangi v Republic (1983) KLR 522 the Court of Appeal also held thus:
“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”
36. In the case against the Appellant, material witnesses such as the doctor who examined the complainant and the investigating officer were not called to testify in the case. The clothes the complainant was alleging that the Appellant bought her were not produced. A DNA was not conducted on the baby born to the complainant to ascertain whether the Appellant was the father to the child. In case that a re-trial is ordered, there is a possibility of the prosecution trying to call the evidence of the witnesses who were not called so as to seal-in the gaps left open during the trial. This will be prejudicial to the Appellant and will occasion him an injustice. The justice of the case does not call for a retrial. I will thereby acquit the appellant of the charges.
37. The upshot is that the conviction entered by the trial court is quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held.
Delivered, dated and signed at GARSEN this 13 th day of May 2026
In the presence of:
Mr. Oluoch HB for Miss Ngina Mutua for Respondent
Appellant - present virtually at G.K. Prison Malindi
Court Assistant - Rahma
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