( Being an appeal from the conviction and sentence in Migori MCSO Case No. E025 of 2023 by Hon. M. Okuche Senior Principal Magistrate, on a Judgement dated 21 st May, 2025 )
JUDGMENT
Introduction
1. The Appellant in this case was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 . The Particulars of the charge were that on the 10 th day of March, 2023 at Lichota area in Suna East Sub County within Migori County in the Republic of Kenya, intentionally and unlawfully caused his male genital organ, namely penis to penetrate the female genital organ namely vagina of P.A a child aged 11 years.
2. In the alternative count he was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006 . The particulars of the charge were that on the 10 th day of March, 2023 at Lichota area in Suna East Sub County within Migori County in the Republic of Kenya intentionally and unlawfully touched the female genital organs namely vagina of P.A a child aged 11 years with your male genital organ namely penis.
1. He was convicted accordingly for the offence of defilement. He was subsequently sentenced to serve life imprisonment.
2. He has appealed against both the conviction and sentence. He has raised the following grounds of appeal:
1. That I pleaded not guilty to the charge herein.
2. That no prima facie case was established against me.
3. That the ingredients of defilement were not proved to the required standard of law.
4. That the witness testimonies were full of inconsistencies and discrepancies thus could not sustain a conviction.
5. That the sentence pronounced by the trial court is harsh, excessive and unreasonable as it goes against the tenets of fair trial under Article 50 (2) of the Constitution.
3. The Appellant further filed a supplementary ground of appeal dated the 17 th day of November, 2025 in which he relied on the following grounds:
1. That the trial court erred in law and in fact in not conducting the voire dire examination on the child of tender years hence rejection of PW1’s evidence.
2. The prosecution did not prove the ingredients forming the offence beyond a reasonable doubt.
3. That the trial court erred in law and in fact in not making a finding that penetration was not proved beyond a reasonable doubt standard.
4. That the trial court erred in law and in fact in not making a finding that the trial court did not comply with Section 200 of the Criminal Procedure Code hence unfair trial.
5. That the age of the victim was not proved beyond a reasonable doubt standard and the benefit of doubt ought to be resolved in favour of the Appellant.
6. That the trial court erred in law and in fact in not making a finding that life sentence is unconstitutional, discriminative and the court can discrete it without offending the legislature and the court of appeal pronouncement in (ISLA) case Republic vs Mwangi.
4. Being a first appeal, the court is duty bound to evaluate the evidence on record and to draw its own conclusions and inferences, taking into account the fact that the appeal court has not had the opportunity of seeing the witnesses testify (see Okeno vs Republic (1972) EA 32 and Mark Oiruri Mose vs. Republic (2013) eKLR )
5. The prosecution called 4 witnesses to support its case. PW1, the Complainant informed the trial Court that she was going home from school on the date the incident happened. That it was around 4.00 P.M and it was raining so she decided to take a short cut to get home faster. On the way she met with the Appellant who is a brother to his father and he pulled her into the bush while covering her mouth. She stated that he then pushed her to the ground, lowered his trouser to the knee level, tore her clothes, and inserted his penis into her private parts while still covering her mouth with one hand. She further stated that the Appellant threatened to kill her if she told anyone. She stated that she slept early that day as she was feeling pain in her lower abdomen. She went to the hospital on the third day. On cross examination she reiterated the same. She added that she did not tell her mother on the same day because the Appellant had threatened her.
6. PW2, the mother of the complainant in her evidence in chief explained that she realized what had happened after the victim complained of pain in her lower abdomen. She stated that the minor was born on the 12/09/2011. She further stated that they knew the Appellant as he was her brother-in-law.
7. PW3 a clinical officer produced a copy of the P3 form, Treatment Notes and PRC form. In his testimony he informed the trial court that there were epithelial cells in the vaginal swab which showed that she had sexual intercourse with a male a few days earlier. He also stated that her hymen was broken but it was however not fresh, he also stated that there was white discharge and he conducted the examination of the complainant after 6 days.
8. PW4 PC Paul Malienga testified before court that on the 10/3/2023 the minor reported to have been defiled. This information was confirmed by both the minor and the mother. He further stated that the minor had a referral letter from Mabera Health Centre and she was issued with a P3 Form. PW4 further stated that the minor went to Migori Health Hospital whereupon examination the P3 Form of the minor was filled. It was further his evidence that the Appellant was later arrested after he had gone underground.
9. Upon being placed in his Defence the Appellant merely denied the charges before court and stated that in the morning he goes to the farm and after that he looks after the cattle. He later recedes to the house at 7.00 P.M
10. Both parties filed their written submissions and in the submission of the appellant he contends that the Prosecution failed to conduct voire dire on a minor of tender age making the evidence tendered by the Complainant a nullity. He further contends that the elements of defilement were not proved beyond reasonable doubt, that the prosecution failed to comply with section 200 of the Criminal Procedure Code and that lastly the sentence was unconstitutional and discriminative.
11. It was the Respondent’s submissions that the all the elements of the offence herein were proved to the required standard and that the sentence meted was proper and it was their prayer that the appeal lacks merit and the Court is urged to dismiss the Appeal and uphold the trial court’s decision on both the conviction and sentence.
12. To this end it is my conclusion that the issues for determination are as follows:
7. Whether the ingredients for the offence of defilement were proved by the prosecution?
8. Whether failure to conduct voire dire is prejudicial to the suit?
9. Whether Section 200 of the Criminal Procedure Code was complied with?
Analysis and Determination
13. I have considered the submissions made by the parties herein. This is a first appellate court, as expected, this court is obliged to analyze and evaluate afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses.
14. The key ingredients for the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of that offence.
15. The age of a person can be proved in various ways. In the case of JOA v Republic [2019] eKLR it was held as follows regarding the issue of age:
“Whereas proof of age of a complainant in defilement cases is a duty of the prosecution, to establish the age of the victim of defilement, it is equally trite law that proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certificate, birth notification, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation of the court, or testimony by the parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim”
16. PW1 testified that she was 11 years of age. PW2, her mother testified that the minor was born on the 12/09/2011. PW4 the investigating officer produced a copy of the birth certificate as PEH.5 showing that minor herein was approximately 11 years at the time of the incident herein. This clearly demonstrate the age of the minor and I am satisfied that the age of the Complainant was proved.
17. Having been able to determine the age of the complainant, this court wishes to consider whether failure to conduct the voir dire examination on the complaint was fatal to the prosecution case before delving into the other elements of defilement.
18. Consequently, on the second issue, this court notes that the law is that absence of voire dire examination is not automatically fatal to the evidence of a witness. This was the observation made by the Court of Appeal in Maripett Loonkomok v Republic (2016) eKLR where it was held that:
“We turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case.
See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014.
19. This position was echoed by the Court of Appeal in Athumani Ali Mwinyi v Republic, Criminal Appeal No.11 of 2015 where the court stated 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.”
20. In Sammy Ngetich v Republic [2018] eKLR where the trial court took the evidence of a complainant in the case who was aged 13 years without conducting a voir dire examination, Mrima J. quashed the conviction and said that:
“The Court of Appeal has also through a long line of cases held that voir dire examination of children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. However, 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 unless there is sufficient independent evidence to support the charge.
21. 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.
22. Lastly in Samuel Warui Karimi v Republic [2016] eKLR where the trial court failed to conduct a voire dire examination on a complainant aged 12 years, the Court of Appeal held that her evidence was not properly received and the conviction of the appellant was unsafe.
23. The record of the trial Court does not disclose that a voire dire examination or any inquiry contemplated under Section 19 of the Oaths and Statutory Declarations Act was conducted before the complainant testified. Equally, the learned Trial Magistrate did not record any reasons demonstrating that the Court had satisfied itself that the complainant understood the duty to tell the truth. This omission is particularly significant in the present case because the conviction was founded substantially on the complainant's evidence.
24. In the absence of a recorded inquiry and without reasons for receiving the complainant's testimony in the manner it was, this Court is unable to ascertain whether the requisite statutory safeguards were observed. The omission, coupled with the absence of recorded reasons under the proviso to Section 124 of the Evidence Act for believing the complainant where the evidence stood substantially uncorroborated, casts doubt on the safety of the conviction. While failure to conduct a voire dire examination is not, of itself, invariably fatal to a conviction, the failure to demonstrate compliance with the statutory requirements on the face of the record constitutes a material irregularity which, in the circumstances of this case, undermines the reliability of the evidence and the fairness of the proceedings.
25. The Court has taken into account that the Appellant was not a stranger to the complainant but a person well known to her. Consequently, the evidence tendered by the complainant was one of recognition, which is generally regarded as more reliable than the identification of a stranger. Nevertheless, the reliability of the recognition evidence does not dispense with the Trial Court's obligation to comply with the procedural safeguards governing the reception of the evidence of a child witness.
26. In the circumstance, it is my considered view that the proceedings were therefore irregular and should not have formed the basis for conviction of the Appellant.
27. On the third issue, I have perused the record of the proceedings of the lower court. It is true that the 1 st and 2 nd Witnesses were heard by a different Judicial Officer and the matter was re-allocated to court 5. That on the 13/5/2024 the court record reads thus: -
“ 13/5/2024
Before Hon. M. Okuche, SPM
Court Assistant: Yudis
Prosecutor: Wainaina
Court: The matter to proceed from where it had reached. Provisions of Section 200 and 200 (3) of the Complied with. Hearing on 27/5/2024
Accused: present ”
28. From the record it is not clear whether the Appellant was ever informed of the new development of his case under Section 200 of the Criminal Procedure Code . Section 200 itself has several provisions and the only relevant to this case being Section 200(1) (b) and (3) which provides: -
“ (1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may –
(b) where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.
(3) Where a succeeding magistrate commences the hearing of the 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 .”
29. Section 200 (1) (b) of the CPC is quite clear that where a case is partly heard by one Magistrate a succeeding magistrate may re-summon the witnesses heard by the preceding magistrate and recommence the trial. Under subsection (3), the court is enjoined to inform the accused person of his right to re-summon witnesses for hearing. The succeeding learned trial magistrate does not seem to have attempted to comply with the provisions of Section 200 of the CPC or to have explained the Appellant his rights under that Section. On this ground alone, the conviction was rendered unsafe.
30. The last issue this Court has to determine is whether to order for retrial. I have on my part considered the principles applicable in determining the question whether to order a retrial or not. The seriousness of the offence, the strength of the evidence and the severity of the sentence are all very relevant issues to consider. The seriousness of the offence cannot be underrated. The evidence adduced by the prosecution was equally strong and may result in a conviction if a retrial were ordered. The maximum sentence for this offence is life imprisonment and in that context the period the Appellant has been imprisoned in comparison cannot be termed a substantive part of sentence by any stretch of imagination or definition.
31. I find guidance in the decision of the court in HCRA No. 135/2004 Plole -vs- Republic (Supra ), the court held that:
“Failure to comply with the provisions of Section 200 CPC would in appropriate case render the trial a nullity. ”
I note in the present case, the offence occurred in 2023. The witnesses who testified were the victim, the mother to the victim, the clinical officer and the police officer. They are witnesses who can be easily found.
32. A similar finding was made in Nahashon Njiru Ireri V Republic [2008] KEHC 949 (KLR ), where the state conceded the appeal on the grounds that section 200 of the CPC had not been complied with and the court in its determination stated:
“ Upon consideration of the submissions by State Counsel and perusing the record, I agree with State Counsel failure to comply with any provisions of law in Criminal prosecution is fatal. I therefore allow the appeal and order that the Appellant be set at liberty forthwith, unless otherwise lawfully held ”.
33. On the basis of these finding, I set aside both the conviction and sentence in this case.
34. Having considered the appeal, the circumstances and facts of this case I find this an appropriate case for an order of retrial. I therefore order that a retrial be held in this case. The same to be heard before any other court except before Hon. Okuche.
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 23 rd of July 2026.
HCCRA NO. E056 OF 2025 JACOB MWITA MARWA Alias WANGENGI VS R JUDGMENT Pg.11
JUDGMENT
Introduction
1. The Appellant in this case was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 . The Particulars of the charge were that on the 10 th day of March, 2023 at Lichota area in Suna East Sub County within Migori County in the Republic of Kenya, intentionally and unlawfully caused his male genital organ, namely penis to penetrate the female genital organ namely vagina of P.A a child aged 11 years.
2. In the alternative count he was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006 . The particulars of the charge were that on the 10 th day of March, 2023 at Lichota area in Suna East Sub County within Migori County in the Republic of Kenya intentionally and unlawfully touched the female genital organs namely vagina of P.A a child aged 11 years with your male genital organ namely penis.
1. He was convicted accordingly for the offence of defilement. He was subsequently sentenced to serve life imprisonment.
2. He has appealed against both the conviction and sentence. He has raised the following grounds of appeal:
1. That I pleaded not guilty to the charge herein.
2. That no prima facie case was established against me.
3. That the ingredients of defilement were not proved to the required standard of law.
4. That the witness testimonies were full of inconsistencies and discrepancies thus could not sustain a conviction.
5. That the sentence pronounced by the trial court is harsh, excessive and unreasonable as it goes against the tenets of fair trial under Article 50 (2) of the Constitution.
3. The Appellant further filed a supplementary ground of appeal dated the 17 th day of November, 2025 in which he relied on the following grounds:
1. That the trial court erred in law and in fact in not conducting the voire dire examination on the child of tender years hence rejection of PW1’s evidence.
2. The prosecution did not prove the ingredients forming the offence beyond a reasonable doubt.
3. That the trial court erred in law and in fact in not making a finding that penetration was not proved beyond a reasonable doubt standard.
4. That the trial court erred in law and in fact in not making a finding that the trial court did not comply with Section 200 of the Criminal Procedure Code hence unfair trial.
5. That the age of the victim was not proved beyond a reasonable doubt standard and the benefit of doubt ought to be resolved in favour of the Appellant.
6. That the trial court erred in law and in fact in not making a finding that life sentence is unconstitutional, discriminative and the court can discrete it without offending the legislature and the court of appeal pronouncement in (ISLA) case Republic vs Mwangi.
4. Being a first appeal, the court is duty bound to evaluate the evidence on record and to draw its own conclusions and inferences, taking into account the fact that the appeal court has not had the opportunity of seeing the witnesses testify (see Okeno vs Republic (1972) EA 32 and Mark Oiruri Mose vs. Republic (2013) eKLR )
5. The prosecution called 4 witnesses to support its case. PW1, the Complainant informed the trial Court that she was going home from school on the date the incident happened. That it was around 4.00 P.M and it was raining so she decided to take a short cut to get home faster. On the way she met with the Appellant who is a brother to his father and he pulled her into the bush while covering her mouth. She stated that he then pushed her to the ground, lowered his trouser to the knee level, tore her clothes, and inserted his penis into her private parts while still covering her mouth with one hand. She further stated that the Appellant threatened to kill her if she told anyone. She stated that she slept early that day as she was feeling pain in her lower abdomen. She went to the hospital on the third day. On cross examination she reiterated the same. She added that she did not tell her mother on the same day because the Appellant had threatened her.
6. PW2, the mother of the complainant in her evidence in chief explained that she realized what had happened after the victim complained of pain in her lower abdomen. She stated that the minor was born on the 12/09/2011. She further stated that they knew the Appellant as he was her brother-in-law.
7. PW3 a clinical officer produced a copy of the P3 form, Treatment Notes and PRC form. In his testimony he informed the trial court that there were epithelial cells in the vaginal swab which showed that she had sexual intercourse with a male a few days earlier. He also stated that her hymen was broken but it was however not fresh, he also stated that there was white discharge and he conducted the examination of the complainant after 6 days.
8. PW4 PC Paul Malienga testified before court that on the 10/3/2023 the minor reported to have been defiled. This information was confirmed by both the minor and the mother. He further stated that the minor had a referral letter from Mabera Health Centre and she was issued with a P3 Form. PW4 further stated that the minor went to Migori Health Hospital whereupon examination the P3 Form of the minor was filled. It was further his evidence that the Appellant was later arrested after he had gone underground.
9. Upon being placed in his Defence the Appellant merely denied the charges before court and stated that in the morning he goes to the farm and after that he looks after the cattle. He later recedes to the house at 7.00 P.M
10. Both parties filed their written submissions and in the submission of the appellant he contends that the Prosecution failed to conduct voire dire on a minor of tender age making the evidence tendered by the Complainant a nullity. He further contends that the elements of defilement were not proved beyond reasonable doubt, that the prosecution failed to comply with section 200 of the Criminal Procedure Code and that lastly the sentence was unconstitutional and discriminative.
11. It was the Respondent’s submissions that the all the elements of the offence herein were proved to the required standard and that the sentence meted was proper and it was their prayer that the appeal lacks merit and the Court is urged to dismiss the Appeal and uphold the trial court’s decision on both the conviction and sentence.
12. To this end it is my conclusion that the issues for determination are as follows:
7. Whether the ingredients for the offence of defilement were proved by the prosecution?
8. Whether failure to conduct voire dire is prejudicial to the suit?
9. Whether Section 200 of the Criminal Procedure Code was complied with?
Analysis and Determination
13. I have considered the submissions made by the parties herein. This is a first appellate court, as expected, this court is obliged to analyze and evaluate afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses.
14. The key ingredients for the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of that offence.
15. The age of a person can be proved in various ways. In the case of JOA v Republic [2019] eKLR it was held as follows regarding the issue of age:
“Whereas proof of age of a complainant in defilement cases is a duty of the prosecution, to establish the age of the victim of defilement, it is equally trite law that proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certificate, birth notification, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation of the court, or testimony by the parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim”
16. PW1 testified that she was 11 years of age. PW2, her mother testified that the minor was born on the 12/09/2011. PW4 the investigating officer produced a copy of the birth certificate as PEH.5 showing that minor herein was approximately 11 years at the time of the incident herein. This clearly demonstrate the age of the minor and I am satisfied that the age of the Complainant was proved.
17. Having been able to determine the age of the complainant, this court wishes to consider whether failure to conduct the voir dire examination on the complaint was fatal to the prosecution case before delving into the other elements of defilement.
18. Consequently, on the second issue, this court notes that the law is that absence of voire dire examination is not automatically fatal to the evidence of a witness. This was the observation made by the Court of Appeal in Maripett Loonkomok v Republic (2016) eKLR where it was held that:
“We turn to consider the effect of failure by the trial court to administer voir dire on the complainant. It is firmly settled that not in all cases that voir dire is not administered or is not administered properly the entire trial would be vitiated. This Court sitting at Nyeri has recently reiterated what has been said many times before that that question will depend on the peculiar circumstances and particular facts of each case.
See James Mwangi Muriithi v R, Criminal Appeal No.10 of 2014.
19. This position was echoed by the Court of Appeal in Athumani Ali Mwinyi v Republic, Criminal Appeal No.11 of 2015 where the court stated 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.”
20. In Sammy Ngetich v Republic [2018] eKLR where the trial court took the evidence of a complainant in the case who was aged 13 years without conducting a voir dire examination, Mrima J. quashed the conviction and said that:
“The Court of Appeal has also through a long line of cases held that voir dire examination of children of tender years must be conducted and that failure to do so does not per se vitiate the entire prosecution case. However, 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 unless there is sufficient independent evidence to support the charge.
21. 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.
22. Lastly in Samuel Warui Karimi v Republic [2016] eKLR where the trial court failed to conduct a voire dire examination on a complainant aged 12 years, the Court of Appeal held that her evidence was not properly received and the conviction of the appellant was unsafe.
23. The record of the trial Court does not disclose that a voire dire examination or any inquiry contemplated under Section 19 of the Oaths and Statutory Declarations Act was conducted before the complainant testified. Equally, the learned Trial Magistrate did not record any reasons demonstrating that the Court had satisfied itself that the complainant understood the duty to tell the truth. This omission is particularly significant in the present case because the conviction was founded substantially on the complainant's evidence.
24. In the absence of a recorded inquiry and without reasons for receiving the complainant's testimony in the manner it was, this Court is unable to ascertain whether the requisite statutory safeguards were observed. The omission, coupled with the absence of recorded reasons under the proviso to Section 124 of the Evidence Act for believing the complainant where the evidence stood substantially uncorroborated, casts doubt on the safety of the conviction. While failure to conduct a voire dire examination is not, of itself, invariably fatal to a conviction, the failure to demonstrate compliance with the statutory requirements on the face of the record constitutes a material irregularity which, in the circumstances of this case, undermines the reliability of the evidence and the fairness of the proceedings.
25. The Court has taken into account that the Appellant was not a stranger to the complainant but a person well known to her. Consequently, the evidence tendered by the complainant was one of recognition, which is generally regarded as more reliable than the identification of a stranger. Nevertheless, the reliability of the recognition evidence does not dispense with the Trial Court's obligation to comply with the procedural safeguards governing the reception of the evidence of a child witness.
26. In the circumstance, it is my considered view that the proceedings were therefore irregular and should not have formed the basis for conviction of the Appellant.
27. On the third issue, I have perused the record of the proceedings of the lower court. It is true that the 1 st and 2 nd Witnesses were heard by a different Judicial Officer and the matter was re-allocated to court 5. That on the 13/5/2024 the court record reads thus: -
“ 13/5/2024
Before Hon. M. Okuche, SPM
Court Assistant: Yudis
Prosecutor: Wainaina
Court: The matter to proceed from where it had reached. Provisions of Section 200 and 200 (3) of the Complied with. Hearing on 27/5/2024
Accused: present ”
28. From the record it is not clear whether the Appellant was ever informed of the new development of his case under Section 200 of the Criminal Procedure Code . Section 200 itself has several provisions and the only relevant to this case being Section 200(1) (b) and (3) which provides: -
“ (1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may –
(b) where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or resummon the witnesses and recommence the trial.
(3) Where a succeeding magistrate commences the hearing of the 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 .”
29. Section 200 (1) (b) of the CPC is quite clear that where a case is partly heard by one Magistrate a succeeding magistrate may re-summon the witnesses heard by the preceding magistrate and recommence the trial. Under subsection (3), the court is enjoined to inform the accused person of his right to re-summon witnesses for hearing. The succeeding learned trial magistrate does not seem to have attempted to comply with the provisions of Section 200 of the CPC or to have explained the Appellant his rights under that Section. On this ground alone, the conviction was rendered unsafe.
30. The last issue this Court has to determine is whether to order for retrial. I have on my part considered the principles applicable in determining the question whether to order a retrial or not. The seriousness of the offence, the strength of the evidence and the severity of the sentence are all very relevant issues to consider. The seriousness of the offence cannot be underrated. The evidence adduced by the prosecution was equally strong and may result in a conviction if a retrial were ordered. The maximum sentence for this offence is life imprisonment and in that context the period the Appellant has been imprisoned in comparison cannot be termed a substantive part of sentence by any stretch of imagination or definition.
31. I find guidance in the decision of the court in HCRA No. 135/2004 Plole -vs- Republic (Supra ), the court held that:
“Failure to comply with the provisions of Section 200 CPC would in appropriate case render the trial a nullity. ”
I note in the present case, the offence occurred in 2023. The witnesses who testified were the victim, the mother to the victim, the clinical officer and the police officer. They are witnesses who can be easily found.
32. A similar finding was made in Nahashon Njiru Ireri V Republic [2008] KEHC 949 (KLR ), where the state conceded the appeal on the grounds that section 200 of the CPC had not been complied with and the court in its determination stated:
“ Upon consideration of the submissions by State Counsel and perusing the record, I agree with State Counsel failure to comply with any provisions of law in Criminal prosecution is fatal. I therefore allow the appeal and order that the Appellant be set at liberty forthwith, unless otherwise lawfully held ”.
33. On the basis of these finding, I set aside both the conviction and sentence in this case.
34. Having considered the appeal, the circumstances and facts of this case I find this an appropriate case for an order of retrial. I therefore order that a retrial be held in this case. The same to be heard before any other court except before Hon. Okuche.
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 23 rd of July 2026.
HCCRA NO. E056 OF 2025 JACOB MWITA MARWA Alias WANGENGI VS R JUDGMENT Pg.11