' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E017 OF 2025
DENNIS KASEMBELI WEBEKA………………………..…………….………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….…….……….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Samuel M. Mokua (CM) in Kitale CMC SO Case No. E099 of 2024)
JUDGMENT
The appellant was arraigned before the Chief Magistrate at Kitale in Sexual Offences Case No. E099 of 2024 charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on diverse dates between 1/4/2024 and 30/4/2024 at Kobos sub location in Kwanza sub county within Trans-Nzoia County, the appellant intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of DC a child aged 16 years.
In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on diverse dates between 1/4/2024 and 30/4/2024 at Kobos sub -location in Kwanza sub county within Trans-Nzoia County, the appellant intentionally and unlawfully caused the contact between his genital organ namely penis with genital organ namely vagina of DC a child aged 16 years.
The appellant pleaded not guilty, and the matter accordingly proceeded to a full trial. During the proceedings, the prosecution called a total of four (4) witnesses. The evidence adduced by these witnesses can be summarized as follows:
PW1, the complainant, testified that she was 16 years old, having been born on 4/9/2007. She stated that on 28/3/2024, she was alone at the home of the appellant, her sister’s husband, when the appellant returned to the house, held her by the neck and led her to bed. She detailed how he then undressed her, removed her panty, and inserted his penis into her vagina. She stated that she became sick in July 2024, at which time it was discovered that she was pregnant. She further testified that she did not disclose the matter to anyone, as the appellant had threatened to stab her with a knife. She emphasized, however, that she bore no personal grudge against the appellant.
On cross-examination, she stated that when she arrived at the appellant’s home, he was not present, and that she had only gone there after her sister, the appellant’s wife, had left for work. She denied ever having any disagreement with the appellant while at his home and added that she left the premises only after he had defiled her.
PW2, the victim’s mother, testified that PW1 returned home in July 2024 for her half-term break. Upon her return to school, the school contacted PW2 to report that her daughter was unwell. She immediately took PW1 to the hospital, where it was confirmed that PW1 was pregnant. Upon interviewing her daughter, PW1 disclosed that the appellant had impregnated her while she was at his home. PW2 confirmed that the appellant was her son-in-law and emphasized that she bore no personal grudge against him.
PW3 testified that he was a Senior Clinical Officer and that he had examined the victim, PW1. Upon examination, he found that she had a broken hymen and was twenty (20) weeks pregnant. He further produced the treatment notes and the P3 form in evidence. On cross-examination, he stated that he had examined the victim on 5/7/2024. On re-examination, he confirmed that the appellant was not made available for examination.
PW4 testified that she was the investigating officer in the matter. She recounted that on 9/7/2025, a complaint was lodged at Luwenza Police Station. In the course of her investigations, the complainant informed her that in April 2024, while at her sister’s home, the appellant, her brother-in-law, had taken her to bed and defiled her, and that she had not disclosed the incident to anyone at the time. The complainant further stated that she returned home in July 2024, when she became unwell and it was established that she was pregnant, and was subsequently advised to report the matter. PW4 then arrested the appellant and instituted charges against him. She confirmed that the appellant was aged 16 years at the time of the incident and produced her birth certificate in evidence, marked PEXH 4.
The evidence of PW4 marked the close of the prosecution’s case. Upon consideration of the evidence, the Court ruled that a prima facie case had been established, and the accused was accordingly called upon to enter his Defense.
The Appellant was the only witness in his defense and gave a sworn testimony in which he denied the charges and contended that the victim was not truthful. He stated that on the day of the alleged incident, he was attending to business at his wife’s premises in Kobos, and that at one point the complainant had visited his residence accompanied by his brother. He further testified that he assumed the complainant had subsequently returned home, and that at no time was she alone at his house. The appellant also asserted that differences had arisen with the victim’s family following a loan the victim’s mother had taken, and which he was unable to repay in full.
On cross-examination, the appellant stated that the complainant had stayed with him for a period of two weeks. He further testified that he was not a saloonist and that he was not engaged in any business on behalf of his wife.
The appellant’s evidence marked the close of the defense case after which the trial court delivered its judgment on 27/2/2025, convicting the appellant and sentencing him to fourteen (14) years’ imprisonment.
Dissatisfied with the decision of the trial court, the appellant has lodged the present appeal, seeking to have both the conviction and sentence quashed. The appeal is predicated on several grounds, among them; that the learned trial magistrate failed to comply with Section 200, as read with Section 200(3) of the Criminal Procedure Code; and that his right to a fair trial, as guaranteed under Article 50(2)(g) of the Constitution, was violated. The appellant further contends that the burden of proof rested on the prosecution and was not discharged.
The appeal has been argued by way of written submissions which have been filed by both parties who then asked the court to consider same and determine the appeal on the same.
Appellant’s Submissions
On the ground that the learned trial magistrate did not comply with Section 200, as read with Section 200(3) of the Criminal Procedure Code, the appellant submits that the provision of the law mandatorily requires a succeeding magistrate to inform the accused of his right to have witnesses recalled for cross-examination or to testify again. He contends that this requirement was not observed, as PW1 and PW2 had testified before Hon. S.M. Makila (CM) prior to the matter being taken over by Hon. S.M. Mokua (CM), who did not comply with the said provisions. The appellant argues that this omission rendered the proceedings a mistrial and a nullity. In support of this proposition, he cites the decisions in Simiyu v R (Criminal Appeal No. E020 of 2022) [2023] KEHC 3638; Nahashon Njiru Ireri v R [2008] eKLR; Joseph Ndwiga v R [2006] eKLR; and Mark Limo Chesire v R [2019] eKLR.
On the ground that the burden of proof rested with the prosecution and was not discharged, the appellant submits that the burden of proof in a criminal trial always rests with the prosecution, citing Moses Nato Raphael v R [2015] eKLR . He contends that the prosecution failed to discharge this burden because, after establishing that PW1 was pregnant, it ought to have invoked Section 36 of the Sexual Offences Act and obtained forensic samples from the accused, including a DNA test. He argues that such evidence would have conclusively established whether the appellant committed the defilement, and, in the absence of this evidence, the element of penetration remains unproved.
On the ground that the appellant’s right to a fair trial under Article 50(2)(g) of the Constitution was violated, he contends that his right to be represented by an advocate, given the seriousness of the offence, was not explained to him by the trial magistrate. He further asserts that Section 43 of the Legal Aid Act imposes a duty on the court to inform unrepresented accused persons of their right to legal representation, thereby giving effect to Article 50(2)(g) of the Constitution. In support of this contention, he cites Joo v R [2021] eKLR and KO v R (Criminal Appeal No. E026 of 2021) [2023] KEHC 18310 KHR , which reaffirm the right to legal representation.
For the foregoing reasons, the appellant prays that the appeal be allowed.
Respondent’s Submissions
The respondent submits that none of the grounds of appeal has merit and hence the entire appeal ought to be dismissed. It contends that the prosecution proved all the essential elements of the offence of defilement, namely: the age of the victim, penetration, and the positive identification of the assailant.
With regard to the age of the victim, the respondent notes that the investigating officer adduced the birth certificate of PW1, which established that she was born on 4/9/2007 and was therefore sixteen (16) years old at the time of the incident. This evidence was corroborated by the testimony of the complainant’s mother, PW2.
On the issue of penetration, the respondent asserts that PW3, the clinical officer, confirmed that the victim’s hymen had been broken and that she was approximately twenty (20) weeks pregnant at the time of examination.
Concerning the positive identification of the perpetrator, the respondent submits that PW1 testified that she was defiled by her brother-in-law, the appellant, and that she positively identified him as the person in the dock while giving evidence in court.
The respondent further contends that all the prosecution witnesses provided concise and consistent testimony, and that there were no material discrepancies in their evidence. In view of the foregoing, the respondent prays that the appeal be dismissed.
Issues, Analysis and Determination
The Court has carefully considered the grounds of appeal, the record of proceedings before the trial court, and the respective submissions by the appellant and the respondent. From the foregoing, the following issues arise for determination: -
Whether the appellant’s right to be informed of, and to exercise, the right to recall witnesses under Section 200(3) of the Criminal Procedure Code was violated.
Whether the prosecution discharged its burden of proving the case against the appellant beyond reasonable doubt.
Whether the appellant’s right to a fair trial under Article 50(2)(g) of the Constitution was infringed.
Whether the appellant’s right to be informed of, and to exercise, the right to recall witnesses under Section 200(3) of the Criminal Procedure Code was violated
Section 200(1) of the Criminal Procedure Code empowers a succeeding magistrate, who takes over a case that was partly heard by another, to proceed with the trial on the basis of the evidence already recorded or, if deemed necessary, to recall the witnesses and commence the hearing afresh. The provision also allows the new magistrate to deliver a judgment written and signed by the predecessor, provided it had not yet been delivered before the change of jurisdiction.
Subsection (3) of the same provision further requires that where a case is taken over by a different magistrate after part of the evidence has been recorded, the accused person must be informed of their right to have any witness re-summoned and reheard. The duty to inform the accused of this right is mandatory and goes to the root of ensuring a fair trial.
On this issue, the court in Office of the Director of Public Prosecutions v Peter Onyango Odongo & 2 others [2015] eKLR held as follows; -
“Section 200(3) of the Criminal Procedure Code is intended, in my view, to address the mischief that may arise when a succeeding Magistrate commences hearing of proceedings where part of the evidence had been recorded by his predecessor, without explaining to the accused his rights to re-summon or recall witnesses who had given evidence before the succeeding magistrate’s predecessor, for cross examination if need be. The Section is intended to protect the rights of an accused to a fair trial and give the succeeding Magistrate an opportunity to note the demeanour of the witnesses to enable the Court make a just decision.
It should be noted Section 200(3) of the C.P.C. gives an accused person an opportunity to demand to have any witnesses recalled. This Section makes it mandatory for the succeeding Magistrate to inform the accused person of his right to have any of the witnesses recalled for cross-examination or to testify again. It should be noted that it is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned, but it is mandatory to explain to the accused his rights. The failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity.”
The record demonstrates that the trial commenced before Hon. S.M. Makila (PM), who took the evidence of PW1 on 1/10/2024 and PW2 on the same date, before the matter was taken over by Hon. S.M. Mokua (PM) on 14/11/2024. The succeeding magistrate thereafter proceeded to hear the remaining prosecution witnesses. However, the record does not indicate that Hon. S.M. Mokua (PM) informed the appellant of his right under Section 200(3) of the Criminal Procedure Code to recall or re-summon witnesses who had previously testified.
While the duty to inform an accused person of this right is couched in mandatory terms, the test for determining whether non-compliance renders the entire proceedings a nullity was discussed by the Court of Appeal in John Amarere Swati v Republic [2014] KECA 19 (KLR), where the Court held as follows:
“This Court dealt with a similar situation in Evans Kiratu Mwangi v R [2011] eKLR where the appellant complained that there was a procedural irregularity in that the trial magistrate failed to comply with section 200 (3) of the CPC which gives an accused person a right to demand that witnesses who had given evidence before a magistrate who has ceased to exercise jurisdiction be re-summoned and re-heard by the succeeding magistrate, and, further that such right be explained to him.
After reviewing the circumstances in that case, the Court took the view that it was not apparent from the record that the appellant would have been materially prejudiced, as only four out of eleven witnesses had testified before the magistrate who had ceased to exercise jurisdiction. The Court also considered that the appellant had the typed proceedings and that, at the close of both the prosecution and defense cases, the appellant ably submitted before the trial magistrate on the entire evidence relied on by the prosecution.
Under Section 200(4) of the Criminal Procedure Code, the Court has discretion to set aside a conviction based upon evidence not wholly recorded by the convicting magistrate and order a retrial if it is of the opinion that the accused person was materially prejudiced.
In the present case, only one of the nine witnesses had testified before the Honourable Principal Magistrate J. Thuita. The appellant cross-examined that witness as he did the eight other witnesses who testified before the Honourable Principal Magistrate S.M. Kibunja. Typed proceedings with respect to the testimony of the first witness were ordered and would have been available for reference.”
In the present case, by the time Hon. S.M. Mokua (CM) took over the matter from Hon. S.M. Makila (PM), two witnesses had already testified, the complainant and her mother. The complainant, being the most crucial witness in a defilement case, was particularly significant. Considering that the prosecution only called four witnesses in total, the two who testified before the succeeding magistrate constituted a substantial portion of the case. The court finds that failure to avail to the appellant the right to recall the two witnesses for cross examination, noting that he was unrepresented, occasioned a prejudice by denying him the chance and opportunity to test their credibility through cross-examination and for the taking over court to observe their demeanor. More importantly, the legal right having been denied without any justification ought to be restored for ends of justice to be met.
Furthermore, the record shows that the appellant was not accorded an opportunity to mitigate before sentencing. The importance of mitigation was underscored by the Court of Appeal in Henry Katap Kipkeu v Republic [2009] eKLR , where the Court stated:
“Before we conclude this judgment, we must say something about the manner the learned Judge dealt with the sentence. We note that the learned Judge sentenced the appellant to death in his main judgment without recording mitigating factors, if any. This was not proper. As we have stated previously, after the judgment is read out and in case of a conviction, the court must take down mitigating circumstances from the accused person before sentencing him/her. This obtains even in cases where the death penalty is mandatory, and the reasons for this requirement are clear…
The failure by the trial magistrate to allow the appellant an opportunity to mitigate was a clear violation of his right to a fair trial. In determining the appropriate remedy, this Court is guided by the Supreme Court decision in Khalid & 16 others v Attorney General & 2 others (Application 32 of 2019) [2020] KESC 30 (KLR) , where it was held that:
“Another principle in the de novo hearing is that it should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. This is because a de novo hearing is a continuation of a trial and not a second trial... The guiding factor for retrial must always be demand of justice.
Also, in Mohd. Hussain @ Julfikar Ali v State (Govt. of NCT of Delhi) (2012) 9 SCC 408, it was held, ‘A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when, in the opinion of the appellate court, such course becomes indispensable to avert failure of justice... The guiding factor for retrial must always be demand of justice.’”
In view of the foregoing, and guided by the constitutional imperative to uphold the right to a fair trial and render substantive justice, this Court finds that the trial was vitiated by material procedural irregularities. The vitiation is so fundamental that a finding on it renders the consideration of the other isolated issues moot or just superfluous.
Consequently, the conviction is hereby quashed, the sentence set aside, and the matter is remitted for retrial before a magistrate assigned by the head of station, Chief Magistrate Court at Kitale. The magistrate to be so assigned shall be one other that that who convicted the appellant.
It is so ordered.
Dated, signed and delivered Virtually this 21 st day of November 2025< ><>< ><>Patrick J O Otieno
Judge
'
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E017 OF 2025
DENNIS KASEMBELI WEBEKA………………………..…………….………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….…….……….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Samuel M. Mokua (CM) in Kitale CMC SO Case No. E099 of 2024)
JUDGMENT
The appellant was arraigned before the Chief Magistrate at Kitale in Sexual Offences Case No. E099 of 2024 charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on diverse dates between 1/4/2024 and 30/4/2024 at Kobos sub location in Kwanza sub county within Trans-Nzoia County, the appellant intentionally and unlawfully caused his genital organ namely penis to penetrate the genital organ namely vagina of DC a child aged 16 years.
In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on diverse dates between 1/4/2024 and 30/4/2024 at Kobos sub -location in Kwanza sub county within Trans-Nzoia County, the appellant intentionally and unlawfully caused the contact between his genital organ namely penis with genital organ namely vagina of DC a child aged 16 years.
The appellant pleaded not guilty, and the matter accordingly proceeded to a full trial. During the proceedings, the prosecution called a total of four (4) witnesses. The evidence adduced by these witnesses can be summarized as follows:
PW1, the complainant, testified that she was 16 years old, having been born on 4/9/2007. She stated that on 28/3/2024, she was alone at the home of the appellant, her sister’s husband, when the appellant returned to the house, held her by the neck and led her to bed. She detailed how he then undressed her, removed her panty, and inserted his penis into her vagina. She stated that she became sick in July 2024, at which time it was discovered that she was pregnant. She further testified that she did not disclose the matter to anyone, as the appellant had threatened to stab her with a knife. She emphasized, however, that she bore no personal grudge against the appellant.
On cross-examination, she stated that when she arrived at the appellant’s home, he was not present, and that she had only gone there after her sister, the appellant’s wife, had left for work. She denied ever having any disagreement with the appellant while at his home and added that she left the premises only after he had defiled her.
PW2, the victim’s mother, testified that PW1 returned home in July 2024 for her half-term break. Upon her return to school, the school contacted PW2 to report that her daughter was unwell. She immediately took PW1 to the hospital, where it was confirmed that PW1 was pregnant. Upon interviewing her daughter, PW1 disclosed that the appellant had impregnated her while she was at his home. PW2 confirmed that the appellant was her son-in-law and emphasized that she bore no personal grudge against him.
PW3 testified that he was a Senior Clinical Officer and that he had examined the victim, PW1. Upon examination, he found that she had a broken hymen and was twenty (20) weeks pregnant. He further produced the treatment notes and the P3 form in evidence. On cross-examination, he stated that he had examined the victim on 5/7/2024. On re-examination, he confirmed that the appellant was not made available for examination.
PW4 testified that she was the investigating officer in the matter. She recounted that on 9/7/2025, a complaint was lodged at Luwenza Police Station. In the course of her investigations, the complainant informed her that in April 2024, while at her sister’s home, the appellant, her brother-in-law, had taken her to bed and defiled her, and that she had not disclosed the incident to anyone at the time. The complainant further stated that she returned home in July 2024, when she became unwell and it was established that she was pregnant, and was subsequently advised to report the matter. PW4 then arrested the appellant and instituted charges against him. She confirmed that the appellant was aged 16 years at the time of the incident and produced her birth certificate in evidence, marked PEXH 4.
The evidence of PW4 marked the close of the prosecution’s case. Upon consideration of the evidence, the Court ruled that a prima facie case had been established, and the accused was accordingly called upon to enter his Defense.
The Appellant was the only witness in his defense and gave a sworn testimony in which he denied the charges and contended that the victim was not truthful. He stated that on the day of the alleged incident, he was attending to business at his wife’s premises in Kobos, and that at one point the complainant had visited his residence accompanied by his brother. He further testified that he assumed the complainant had subsequently returned home, and that at no time was she alone at his house. The appellant also asserted that differences had arisen with the victim’s family following a loan the victim’s mother had taken, and which he was unable to repay in full.
On cross-examination, the appellant stated that the complainant had stayed with him for a period of two weeks. He further testified that he was not a saloonist and that he was not engaged in any business on behalf of his wife.
The appellant’s evidence marked the close of the defense case after which the trial court delivered its judgment on 27/2/2025, convicting the appellant and sentencing him to fourteen (14) years’ imprisonment.
Dissatisfied with the decision of the trial court, the appellant has lodged the present appeal, seeking to have both the conviction and sentence quashed. The appeal is predicated on several grounds, among them; that the learned trial magistrate failed to comply with Section 200, as read with Section 200(3) of the Criminal Procedure Code; and that his right to a fair trial, as guaranteed under Article 50(2)(g) of the Constitution, was violated. The appellant further contends that the burden of proof rested on the prosecution and was not discharged.
The appeal has been argued by way of written submissions which have been filed by both parties who then asked the court to consider same and determine the appeal on the same.
Appellant’s Submissions
On the ground that the learned trial magistrate did not comply with Section 200, as read with Section 200(3) of the Criminal Procedure Code, the appellant submits that the provision of the law mandatorily requires a succeeding magistrate to inform the accused of his right to have witnesses recalled for cross-examination or to testify again. He contends that this requirement was not observed, as PW1 and PW2 had testified before Hon. S.M. Makila (CM) prior to the matter being taken over by Hon. S.M. Mokua (CM), who did not comply with the said provisions. The appellant argues that this omission rendered the proceedings a mistrial and a nullity. In support of this proposition, he cites the decisions in Simiyu v R (Criminal Appeal No. E020 of 2022) [2023] KEHC 3638; Nahashon Njiru Ireri v R [2008] eKLR; Joseph Ndwiga v R [2006] eKLR; and Mark Limo Chesire v R [2019] eKLR.
On the ground that the burden of proof rested with the prosecution and was not discharged, the appellant submits that the burden of proof in a criminal trial always rests with the prosecution, citing Moses Nato Raphael v R [2015] eKLR . He contends that the prosecution failed to discharge this burden because, after establishing that PW1 was pregnant, it ought to have invoked Section 36 of the Sexual Offences Act and obtained forensic samples from the accused, including a DNA test. He argues that such evidence would have conclusively established whether the appellant committed the defilement, and, in the absence of this evidence, the element of penetration remains unproved.
On the ground that the appellant’s right to a fair trial under Article 50(2)(g) of the Constitution was violated, he contends that his right to be represented by an advocate, given the seriousness of the offence, was not explained to him by the trial magistrate. He further asserts that Section 43 of the Legal Aid Act imposes a duty on the court to inform unrepresented accused persons of their right to legal representation, thereby giving effect to Article 50(2)(g) of the Constitution. In support of this contention, he cites Joo v R [2021] eKLR and KO v R (Criminal Appeal No. E026 of 2021) [2023] KEHC 18310 KHR , which reaffirm the right to legal representation.
For the foregoing reasons, the appellant prays that the appeal be allowed.
Respondent’s Submissions
The respondent submits that none of the grounds of appeal has merit and hence the entire appeal ought to be dismissed. It contends that the prosecution proved all the essential elements of the offence of defilement, namely: the age of the victim, penetration, and the positive identification of the assailant.
With regard to the age of the victim, the respondent notes that the investigating officer adduced the birth certificate of PW1, which established that she was born on 4/9/2007 and was therefore sixteen (16) years old at the time of the incident. This evidence was corroborated by the testimony of the complainant’s mother, PW2.
On the issue of penetration, the respondent asserts that PW3, the clinical officer, confirmed that the victim’s hymen had been broken and that she was approximately twenty (20) weeks pregnant at the time of examination.
Concerning the positive identification of the perpetrator, the respondent submits that PW1 testified that she was defiled by her brother-in-law, the appellant, and that she positively identified him as the person in the dock while giving evidence in court.
The respondent further contends that all the prosecution witnesses provided concise and consistent testimony, and that there were no material discrepancies in their evidence. In view of the foregoing, the respondent prays that the appeal be dismissed.
Issues, Analysis and Determination
The Court has carefully considered the grounds of appeal, the record of proceedings before the trial court, and the respective submissions by the appellant and the respondent. From the foregoing, the following issues arise for determination: -
Whether the appellant’s right to be informed of, and to exercise, the right to recall witnesses under Section 200(3) of the Criminal Procedure Code was violated.
Whether the prosecution discharged its burden of proving the case against the appellant beyond reasonable doubt.
Whether the appellant’s right to a fair trial under Article 50(2)(g) of the Constitution was infringed.
Whether the appellant’s right to be informed of, and to exercise, the right to recall witnesses under Section 200(3) of the Criminal Procedure Code was violated
Section 200(1) of the Criminal Procedure Code empowers a succeeding magistrate, who takes over a case that was partly heard by another, to proceed with the trial on the basis of the evidence already recorded or, if deemed necessary, to recall the witnesses and commence the hearing afresh. The provision also allows the new magistrate to deliver a judgment written and signed by the predecessor, provided it had not yet been delivered before the change of jurisdiction.
Subsection (3) of the same provision further requires that where a case is taken over by a different magistrate after part of the evidence has been recorded, the accused person must be informed of their right to have any witness re-summoned and reheard. The duty to inform the accused of this right is mandatory and goes to the root of ensuring a fair trial.
On this issue, the court in Office of the Director of Public Prosecutions v Peter Onyango Odongo & 2 others [2015] eKLR held as follows; -
“Section 200(3) of the Criminal Procedure Code is intended, in my view, to address the mischief that may arise when a succeeding Magistrate commences hearing of proceedings where part of the evidence had been recorded by his predecessor, without explaining to the accused his rights to re-summon or recall witnesses who had given evidence before the succeeding magistrate’s predecessor, for cross examination if need be. The Section is intended to protect the rights of an accused to a fair trial and give the succeeding Magistrate an opportunity to note the demeanour of the witnesses to enable the Court make a just decision.
It should be noted Section 200(3) of the C.P.C. gives an accused person an opportunity to demand to have any witnesses recalled. This Section makes it mandatory for the succeeding Magistrate to inform the accused person of his right to have any of the witnesses recalled for cross-examination or to testify again. It should be noted that it is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned, but it is mandatory to explain to the accused his rights. The failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity.”
The record demonstrates that the trial commenced before Hon. S.M. Makila (PM), who took the evidence of PW1 on 1/10/2024 and PW2 on the same date, before the matter was taken over by Hon. S.M. Mokua (PM) on 14/11/2024. The succeeding magistrate thereafter proceeded to hear the remaining prosecution witnesses. However, the record does not indicate that Hon. S.M. Mokua (PM) informed the appellant of his right under Section 200(3) of the Criminal Procedure Code to recall or re-summon witnesses who had previously testified.
While the duty to inform an accused person of this right is couched in mandatory terms, the test for determining whether non-compliance renders the entire proceedings a nullity was discussed by the Court of Appeal in John Amarere Swati v Republic [2014] KECA 19 (KLR), where the Court held as follows:
“This Court dealt with a similar situation in Evans Kiratu Mwangi v R [2011] eKLR where the appellant complained that there was a procedural irregularity in that the trial magistrate failed to comply with section 200 (3) of the CPC which gives an accused person a right to demand that witnesses who had given evidence before a magistrate who has ceased to exercise jurisdiction be re-summoned and re-heard by the succeeding magistrate, and, further that such right be explained to him.
After reviewing the circumstances in that case, the Court took the view that it was not apparent from the record that the appellant would have been materially prejudiced, as only four out of eleven witnesses had testified before the magistrate who had ceased to exercise jurisdiction. The Court also considered that the appellant had the typed proceedings and that, at the close of both the prosecution and defense cases, the appellant ably submitted before the trial magistrate on the entire evidence relied on by the prosecution.
Under Section 200(4) of the Criminal Procedure Code, the Court has discretion to set aside a conviction based upon evidence not wholly recorded by the convicting magistrate and order a retrial if it is of the opinion that the accused person was materially prejudiced.
In the present case, only one of the nine witnesses had testified before the Honourable Principal Magistrate J. Thuita. The appellant cross-examined that witness as he did the eight other witnesses who testified before the Honourable Principal Magistrate S.M. Kibunja. Typed proceedings with respect to the testimony of the first witness were ordered and would have been available for reference.”
In the present case, by the time Hon. S.M. Mokua (CM) took over the matter from Hon. S.M. Makila (PM), two witnesses had already testified, the complainant and her mother. The complainant, being the most crucial witness in a defilement case, was particularly significant. Considering that the prosecution only called four witnesses in total, the two who testified before the succeeding magistrate constituted a substantial portion of the case. The court finds that failure to avail to the appellant the right to recall the two witnesses for cross examination, noting that he was unrepresented, occasioned a prejudice by denying him the chance and opportunity to test their credibility through cross-examination and for the taking over court to observe their demeanor. More importantly, the legal right having been denied without any justification ought to be restored for ends of justice to be met.
Furthermore, the record shows that the appellant was not accorded an opportunity to mitigate before sentencing. The importance of mitigation was underscored by the Court of Appeal in Henry Katap Kipkeu v Republic [2009] eKLR , where the Court stated:
“Before we conclude this judgment, we must say something about the manner the learned Judge dealt with the sentence. We note that the learned Judge sentenced the appellant to death in his main judgment without recording mitigating factors, if any. This was not proper. As we have stated previously, after the judgment is read out and in case of a conviction, the court must take down mitigating circumstances from the accused person before sentencing him/her. This obtains even in cases where the death penalty is mandatory, and the reasons for this requirement are clear…
The failure by the trial magistrate to allow the appellant an opportunity to mitigate was a clear violation of his right to a fair trial. In determining the appropriate remedy, this Court is guided by the Supreme Court decision in Khalid & 16 others v Attorney General & 2 others (Application 32 of 2019) [2020] KESC 30 (KLR) , where it was held that:
“Another principle in the de novo hearing is that it should not be taken as an opportunity to fill in gaps noted during the hearing by bringing a new set of evidence for the repeat trial. This is because a de novo hearing is a continuation of a trial and not a second trial... The guiding factor for retrial must always be demand of justice.
Also, in Mohd. Hussain @ Julfikar Ali v State (Govt. of NCT of Delhi) (2012) 9 SCC 408, it was held, ‘A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when, in the opinion of the appellate court, such course becomes indispensable to avert failure of justice... The guiding factor for retrial must always be demand of justice.’”
In view of the foregoing, and guided by the constitutional imperative to uphold the right to a fair trial and render substantive justice, this Court finds that the trial was vitiated by material procedural irregularities. The vitiation is so fundamental that a finding on it renders the consideration of the other isolated issues moot or just superfluous.
Consequently, the conviction is hereby quashed, the sentence set aside, and the matter is remitted for retrial before a magistrate assigned by the head of station, Chief Magistrate Court at Kitale. The magistrate to be so assigned shall be one other that that who convicted the appellant.
It is so ordered.
Dated, signed and delivered Virtually this 21 st day of November 2025< ><>< ><>Patrick J O Otieno
Judge
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