(Being an appeal from original conviction and sentence by P.E. Nabwana, SRM in the Magistrate’s Court at Wamunyu Sexual Offence Case No. E030 of 2021 on the 8th September, 2025.)
1. The Appellant herein was charged with defilement contrary to section 8(1)(2) as read with section 8(1)(4) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on diverse dates between the 1st day of May 2021 and the 8th day of July 2021 at Kabaa Market Kabaa sub location Mbiuni location in Mwala sub county within Machakos County intentionally and unlawfully caused his penis to penetrate the vagina of M.M.M, a child aged 12 years. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No.3 of 2006. It was alleged that on the same date and place, he intentionally touched the vagina of
M.M.M. a child aged 12 years with his penis.
2. The Appellant pleaded not guilty to both the main and alternative charge. After trial, the trial magistrate convicted the appellant on the alternative charge and was sentenced to serve ten (10) years imprisonment.
THE APPEAL
3. Dissatisfied with the conviction and sentence, the appellant filed an appeal on the following grounds:
1) THAT, the learned trial magistrate erred in both law and fact by failing to accord the Appellant with a fair trial pursuant to Article 50(2) (j) of the Constitution of Kenya 2010.
2) THAT, the learned trial magistrate erred in both law and fact by failing to comply with Section 200(3) of the Criminal Procedure Code.
3) THAT, the learned trial magistrate erred in both law and fact by relying on evidence by force or coercion hence unreliable.
4) THAT, the learned trial magistrate erred in both law and fact by relying on inadmissible evidence from a refractory witness
5) THAT, the learned trial magistrate failed to prove indecent act to the required standard.
6) THAT, the learned trial magistrate erred in both law and fact when he failed to properly evaluate the evidence on record and relied on insufficient, uncorroborated and incredible evidence and came to the wrong pronouncement.
SUBMISSIONS
4. The appeal was canvassed through written submissions filed by the appellant in person and respondent’s counsel.
DUTY OF THE APPELLATE COURT
5. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu v Republic (2010) Eklr where the Court of Appeal stated:
“ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same
conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
CASE BEFORE THE TRIAL COURT
6. At the trial, the prosecution called five (5) witnesses. The appellant in defence tendered unsworn evidence and did not have a witness to call.
7. The prosecution witnesses gave the following narrative. PW 1 herein referred to as M.M.M was the complainant. In her unsworn evidence, she testified that between the months of May and July 2021, she used to sleep with her brother Musila and sister Muthoki and a cousin. Kimathi called her and told her to clean where they sleep. No one resided in that house. When she entered the house, he capped her mother and lay her on the bed removing her clothes. He then did bad manners to her and when asked to state what happened, she went mute and declined to speak.
8. On 21st November 2022 when she came back to testify she stated that she could not remember what happened on the alleged date of the incident. She continued to state that what was recorded in her police statement was not true. She was unequivocal that the accused did not defile her. She admitted that she went to the police station and recorded a statement in which she had been told to record it in that manner. She denied being defiled by Jackson and that she had been forced to implicate Jackson falsely. She feared telling the truth telling the truth due to reprisals and had been forced to say so by her brother’s wife called ELIZABETH WAVINYA. That she had not been forced by the police to write her statement. That it was Elizabeth and another lady from church that had asked her to falsely implicate the accused. She was then taken to hospital anyway and treated despite not being in pain.
9. PW 2, Elizabeth Wavinya, a housewife stated that on 13th July 2021, she went to fetch water at about 0800hrs. When she returned to the house she found M.M.M. At around 6pm, she refused to go back their house and when PW 2 insisted, she told her that her uncle had defiled her. PW 2 then asked her to wait for her brother to explain the story to him. At 9pm when the brother arrived home, she repeated the same narrative. Her brother went to Kabaa Police Post and made a report. PW 2 accompanied her and the police asked PW 2 to escort her to Mwala Hospital for
examination. She was examined but was not given any medication to take. From then on PW 2 stayed with the girl but later on went to stay with her mother.
10. PW 3, Boniface Mutua Musembi, stated that on 13th July 2021, he came back from work at around 9pm, when PW 2 informed him what M.M.M. had told her. That she had been defiled by the accused. He then called his elder sister ELIZABETH WANZA, who advised him to report to the police. He did so at Kabaa Police Post where he recorded his statement.
M.M.M. who is his younger sister was born on March 20th 2009 as provided in the clinical card, also recorded her statement. Afterwards,
M.M.M. was taken to Mwala Hospital, where they spent the whole night. From then on M.M.M. stayed with him and PW 2, but later on she went to stay with her elder sister. Currently, M.M.M stays with his mother and the accused.
11. PW 4, Immaculate Mbinya Kitila, a critical care clinical officer, in a sworn statement testified that on 14th July 2021, she examined M.M.M. who had complained of defilement by the father for over one (1) week. She recounted three (3) prior episodes of the same. As per her report, the accused (hereinafter referred to as the appellant) would ensure that no one was in the compound. He would close her mouth using his hands so that she could not scream. He would even use protection. M.M.M. would report other episodes to the mother, and even after once finding them in the act, she would be beaten for misbehaving. She complained of lower abdominal pains despite the fact that she had not started her menstrual periods. On investigations, the doctor indicated that there was whitish per vaginal discharge, a perforated hymen and lacerations were seen on her labia majora and labia minora. Additionally, epithelial cells were present as well as pus which were a clear indication of infection. The clinical officer then formed an expert opinion that she had been defiled. In support of her opinion she produced the P3 form, as P. exhibit 2. P. exhibit 3 and P. exhibit 4 respectively.
12. PW 5, Stanley Ng’etich, investigated the case. He provided that on 14th July 2021, he was on duty at Kabaa Police Post, when the complainant, her brother Boniface Mutua Musembi and sister in law Elizabeth Wavinya came and she made a report of defilement by her step-father. She then proceeded to narrate how her father defiled and also added that it was not the first time and that it had happened twice before. Whenever
she told her mother, she would punish her by saying that she did not want to hear such things. He then took the girl to the hospital after recording her statement, where she was examined and treated. He provided her immunization card marked as P. exhibit 1 which indicated that the child was born on 20th March 2009.
ANALYSIS
13. After examining and re-evaluating the evidence tendered before the trial court, the judgement of the trial court, the grounds of appeal and the submissions by the parties. The issue for determination is:
a) Whether a retrial would be proper
14. In ground three of the Appellant’s submissions, the Appellant contended that the learned trial magistrate erred in both law and fact by failing to comply with Section 200(3) of the Criminal Procedure Code. Learned counsel for the respondent, responding to that ground submitted that:
8. “ The provisions of Section 200(3) of the Criminal Procedure Code are mandatory and a succeeding Magistrate must inform the accused directly and personally of his right to recall witnesses and failure to comply by a court renders trial a nullity. See Cyrus Muriithi Kamau and Anor V Republic, Nyeri Criminal Appeal No.87 and 88 of 2006; Kariuki v Republic (1985) KLR 504.
9. Therefore, it follows that the trial of the appellant herein was a nullity and his conviction cannot stand.
15. It is not in contention, after perusal of the records that this case commenced on 19th July 2021 before Hon. C.N. Ondieki PM where he recorded the testimony of three prosecution witnesses. Hon. P.E. Nabwana SRM took over the matter on 7th April 2025 and recorded the testimony of two prosecution witnesses following which the
prosecution’s case was closed.
16. From what is provided in the records, it is evident that the learned trial magistrate proceeded without strict compliance to Section 200(3) of the Criminal Procedure Code which provides that:
Section 200(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
17. In John Bell Kinegeni v Republic (2015) KECA 89 (KLR), the court approved the principles set out in Ndegwa V Republic (1985) KLR 534 and stressed that:
“ The duty is reposed on the court and there’s no requirement that an application be made by the accused person for such compliance, and that failure to comply with that requirement would in an appropriate case vender the trial a nullity as Section 200(3) requires in a mandatory tone that the succeeding magistrate shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate.”
18. In Cyrus Muriithi Kamau and another v Republic Nyeri Criminal Appeal No. 87 and 88 of 2006 the court provided that the use of words “Shall inform the accused person of that right” in Section 200(3) (supra) was clearly meant to protect the rights of an accused and the duty to see that the right is protected is placed on the trial magistrate and the burden to inform an accused person of the right to have the previous witnesses re-summoned and reheard is placed on the magistrate in mandatory terms.
19. Taking into account the above principles, the learned succeeding trial magistrate’s failure to inform the Appellant of his rights under Section 200(3) of the Criminal Procedure Code as was mandatorily required of him vitiated the Appellant’s trial.
20. In Republic v Peter Gitau Njuguna and Another (2014) Court of Appeal of 247 consolidated with no. 248 of 2011, the court was in agreement with the principles set out Ahmed Ali Dharamasi Sumar v Republic (1964) and restated in Fatehali Manji v Republic (1966) EA 343 upon which the court can order a retrial. The Court of Appeal offered guidance in the following terms:
“In general, a retrial will be ordered only where the original trial was illegal or defective, it will not to 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 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 an injustice to the accused person.”
21. Section 200(4) of the Criminal Procedure Code provides that:
“Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may if it is of the opinion that the accused was materially prejudiced thereby, set aside the conviction and may order a new trial.”
22. The trial magistrate erred in law by failing to discharge his mandatory duty under Section 200(3) Criminal Procedure Code, rendering the subsequent trial proceedings a nullity.
DETERMINATION
23. I am of the considered view that this is a proper case for retrial. Upon evaluating the record, the circumstancial evidence against the appellant establishes a prima facie case. Balancing the interests of justice and the gravity of the offense, it is in the public interest that the appellant be tries afresh. It is further noted that there will be no hardship occasioned due to the fact the appellant has only served eleven (11) months imprisonment.
24. I hereby quash the conviction, set aside the sentence and a order retrial de novo before a new trial magistrate.
READ AND PUBLISHED IN HE CTS THIS 20TH AUGUST 2026 IN THE PRESENCE OF:
THE APPELLANT
BEFORE HON JOYCE GANDANI JUDGE
PROSECUTOR MACHUMA
1. The Appellant herein was charged with defilement contrary to section 8(1)(2) as read with section 8(1)(4) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were that on diverse dates between the 1st day of May 2021 and the 8th day of July 2021 at Kabaa Market Kabaa sub location Mbiuni location in Mwala sub county within Machakos County intentionally and unlawfully caused his penis to penetrate the vagina of M.M.M, a child aged 12 years. He faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No.3 of 2006. It was alleged that on the same date and place, he intentionally touched the vagina of
M.M.M. a child aged 12 years with his penis.
2. The Appellant pleaded not guilty to both the main and alternative charge. After trial, the trial magistrate convicted the appellant on the alternative charge and was sentenced to serve ten (10) years imprisonment.
THE APPEAL
3. Dissatisfied with the conviction and sentence, the appellant filed an appeal on the following grounds:
1) THAT, the learned trial magistrate erred in both law and fact by failing to accord the Appellant with a fair trial pursuant to Article 50(2) (j) of the Constitution of Kenya 2010.
2) THAT, the learned trial magistrate erred in both law and fact by failing to comply with Section 200(3) of the Criminal Procedure Code.
3) THAT, the learned trial magistrate erred in both law and fact by relying on evidence by force or coercion hence unreliable.
4) THAT, the learned trial magistrate erred in both law and fact by relying on inadmissible evidence from a refractory witness
5) THAT, the learned trial magistrate failed to prove indecent act to the required standard.
6) THAT, the learned trial magistrate erred in both law and fact when he failed to properly evaluate the evidence on record and relied on insufficient, uncorroborated and incredible evidence and came to the wrong pronouncement.
SUBMISSIONS
4. The appeal was canvassed through written submissions filed by the appellant in person and respondent’s counsel.
DUTY OF THE APPELLATE COURT
5. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu v Republic (2010) Eklr where the Court of Appeal stated:
“ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same
conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
CASE BEFORE THE TRIAL COURT
6. At the trial, the prosecution called five (5) witnesses. The appellant in defence tendered unsworn evidence and did not have a witness to call.
7. The prosecution witnesses gave the following narrative. PW 1 herein referred to as M.M.M was the complainant. In her unsworn evidence, she testified that between the months of May and July 2021, she used to sleep with her brother Musila and sister Muthoki and a cousin. Kimathi called her and told her to clean where they sleep. No one resided in that house. When she entered the house, he capped her mother and lay her on the bed removing her clothes. He then did bad manners to her and when asked to state what happened, she went mute and declined to speak.
8. On 21st November 2022 when she came back to testify she stated that she could not remember what happened on the alleged date of the incident. She continued to state that what was recorded in her police statement was not true. She was unequivocal that the accused did not defile her. She admitted that she went to the police station and recorded a statement in which she had been told to record it in that manner. She denied being defiled by Jackson and that she had been forced to implicate Jackson falsely. She feared telling the truth telling the truth due to reprisals and had been forced to say so by her brother’s wife called ELIZABETH WAVINYA. That she had not been forced by the police to write her statement. That it was Elizabeth and another lady from church that had asked her to falsely implicate the accused. She was then taken to hospital anyway and treated despite not being in pain.
9. PW 2, Elizabeth Wavinya, a housewife stated that on 13th July 2021, she went to fetch water at about 0800hrs. When she returned to the house she found M.M.M. At around 6pm, she refused to go back their house and when PW 2 insisted, she told her that her uncle had defiled her. PW 2 then asked her to wait for her brother to explain the story to him. At 9pm when the brother arrived home, she repeated the same narrative. Her brother went to Kabaa Police Post and made a report. PW 2 accompanied her and the police asked PW 2 to escort her to Mwala Hospital for
examination. She was examined but was not given any medication to take. From then on PW 2 stayed with the girl but later on went to stay with her mother.
10. PW 3, Boniface Mutua Musembi, stated that on 13th July 2021, he came back from work at around 9pm, when PW 2 informed him what M.M.M. had told her. That she had been defiled by the accused. He then called his elder sister ELIZABETH WANZA, who advised him to report to the police. He did so at Kabaa Police Post where he recorded his statement.
M.M.M. who is his younger sister was born on March 20th 2009 as provided in the clinical card, also recorded her statement. Afterwards,
M.M.M. was taken to Mwala Hospital, where they spent the whole night. From then on M.M.M. stayed with him and PW 2, but later on she went to stay with her elder sister. Currently, M.M.M stays with his mother and the accused.
11. PW 4, Immaculate Mbinya Kitila, a critical care clinical officer, in a sworn statement testified that on 14th July 2021, she examined M.M.M. who had complained of defilement by the father for over one (1) week. She recounted three (3) prior episodes of the same. As per her report, the accused (hereinafter referred to as the appellant) would ensure that no one was in the compound. He would close her mouth using his hands so that she could not scream. He would even use protection. M.M.M. would report other episodes to the mother, and even after once finding them in the act, she would be beaten for misbehaving. She complained of lower abdominal pains despite the fact that she had not started her menstrual periods. On investigations, the doctor indicated that there was whitish per vaginal discharge, a perforated hymen and lacerations were seen on her labia majora and labia minora. Additionally, epithelial cells were present as well as pus which were a clear indication of infection. The clinical officer then formed an expert opinion that she had been defiled. In support of her opinion she produced the P3 form, as P. exhibit 2. P. exhibit 3 and P. exhibit 4 respectively.
12. PW 5, Stanley Ng’etich, investigated the case. He provided that on 14th July 2021, he was on duty at Kabaa Police Post, when the complainant, her brother Boniface Mutua Musembi and sister in law Elizabeth Wavinya came and she made a report of defilement by her step-father. She then proceeded to narrate how her father defiled and also added that it was not the first time and that it had happened twice before. Whenever
she told her mother, she would punish her by saying that she did not want to hear such things. He then took the girl to the hospital after recording her statement, where she was examined and treated. He provided her immunization card marked as P. exhibit 1 which indicated that the child was born on 20th March 2009.
ANALYSIS
13. After examining and re-evaluating the evidence tendered before the trial court, the judgement of the trial court, the grounds of appeal and the submissions by the parties. The issue for determination is:
a) Whether a retrial would be proper
14. In ground three of the Appellant’s submissions, the Appellant contended that the learned trial magistrate erred in both law and fact by failing to comply with Section 200(3) of the Criminal Procedure Code. Learned counsel for the respondent, responding to that ground submitted that:
8. “ The provisions of Section 200(3) of the Criminal Procedure Code are mandatory and a succeeding Magistrate must inform the accused directly and personally of his right to recall witnesses and failure to comply by a court renders trial a nullity. See Cyrus Muriithi Kamau and Anor V Republic, Nyeri Criminal Appeal No.87 and 88 of 2006; Kariuki v Republic (1985) KLR 504.
9. Therefore, it follows that the trial of the appellant herein was a nullity and his conviction cannot stand.
15. It is not in contention, after perusal of the records that this case commenced on 19th July 2021 before Hon. C.N. Ondieki PM where he recorded the testimony of three prosecution witnesses. Hon. P.E. Nabwana SRM took over the matter on 7th April 2025 and recorded the testimony of two prosecution witnesses following which the
prosecution’s case was closed.
16. From what is provided in the records, it is evident that the learned trial magistrate proceeded without strict compliance to Section 200(3) of the Criminal Procedure Code which provides that:
Section 200(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.
17. In John Bell Kinegeni v Republic (2015) KECA 89 (KLR), the court approved the principles set out in Ndegwa V Republic (1985) KLR 534 and stressed that:
“ The duty is reposed on the court and there’s no requirement that an application be made by the accused person for such compliance, and that failure to comply with that requirement would in an appropriate case vender the trial a nullity as Section 200(3) requires in a mandatory tone that the succeeding magistrate shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate.”
18. In Cyrus Muriithi Kamau and another v Republic Nyeri Criminal Appeal No. 87 and 88 of 2006 the court provided that the use of words “Shall inform the accused person of that right” in Section 200(3) (supra) was clearly meant to protect the rights of an accused and the duty to see that the right is protected is placed on the trial magistrate and the burden to inform an accused person of the right to have the previous witnesses re-summoned and reheard is placed on the magistrate in mandatory terms.
19. Taking into account the above principles, the learned succeeding trial magistrate’s failure to inform the Appellant of his rights under Section 200(3) of the Criminal Procedure Code as was mandatorily required of him vitiated the Appellant’s trial.
20. In Republic v Peter Gitau Njuguna and Another (2014) Court of Appeal of 247 consolidated with no. 248 of 2011, the court was in agreement with the principles set out Ahmed Ali Dharamasi Sumar v Republic (1964) and restated in Fatehali Manji v Republic (1966) EA 343 upon which the court can order a retrial. The Court of Appeal offered guidance in the following terms:
“In general, a retrial will be ordered only where the original trial was illegal or defective, it will not to 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 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 an injustice to the accused person.”
21. Section 200(4) of the Criminal Procedure Code provides that:
“Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may if it is of the opinion that the accused was materially prejudiced thereby, set aside the conviction and may order a new trial.”
22. The trial magistrate erred in law by failing to discharge his mandatory duty under Section 200(3) Criminal Procedure Code, rendering the subsequent trial proceedings a nullity.
DETERMINATION
23. I am of the considered view that this is a proper case for retrial. Upon evaluating the record, the circumstancial evidence against the appellant establishes a prima facie case. Balancing the interests of justice and the gravity of the offense, it is in the public interest that the appellant be tries afresh. It is further noted that there will be no hardship occasioned due to the fact the appellant has only served eleven (11) months imprisonment.
24. I hereby quash the conviction, set aside the sentence and a order retrial de novo before a new trial magistrate.
READ AND PUBLISHED IN HE CTS THIS 20TH AUGUST 2026 IN THE PRESENCE OF:
THE APPELLANT
BEFORE HON JOYCE GANDANI JUDGE
PROSECUTOR MACHUMA