(Being an appeal against the Judgement of Hon. E. Tsimonjero (SRM) in Ukwala S.O CRC No. E002 of 2025 delivered on 12.08.2025)
1. The Appeal herein arises from the Judgement of Hon. E. Tsimonjero (SRM) in Ukwala SO CRC No. E11 OF 2025 dated 18.9.2025 wherein he convicted and sentenced the Appellant to life imprisonment
2. The Appellant was aggrieved and filed his Petition Appeal dated 3 rd November 2025 wherein he raised the following grounds of appeal:
I. THAT, the learned trial magistrate disregarded all the open discrepancies in the evidence of the complainant thereby occasioning an injustice on his part.
II. THAT, the learned trial magistrate misdirected himself when failed to critically analyze the entire evidence and realize that inconsistencies could not sustain a conviction.
III. THAT, the prosecution did not prove its case beyond reasonable doubt.
IV. THAT, based on the foregoing, the sentence meted herein is illegal in its entirety requesting to set aside and in its place determine appropriate sentence.
V. THAT, ingredients of defilement were not proved.
3. On 11 th March 2026, the Appellant filed Amended Grounds of Appeal as follows: -
a) THAT, the learned trial magistrate erred in law and facts when he founded his findings on the prosecution's contradicted, inconsistent, un-corroborated and unproved evidence to warrant the conviction against the appellant contrary to the law.
b) THAT, the learned trial magistrate erred in law and facts when he relied upon the prosecution's hostile evidence to form the basis of his conviction contrary to the law.
c) THAT, the learned trial magistrate erred in law and facts when he convicted the appellant in the present case and failed to note that the prosecution's case was not proved beyond reasonable doubt as was required by law.
d) THAT, the learned trial magistrate erred in law and facts when he failed to conduct a fair trial in the present matter as was expected by law.
4. This being the first Appellate Court, the Court’s duty is to consider the evidence presented to the trial court with caution that it neither heard nor saw the witnesses. In Okeno- Vs- Republic (1972) EA 32 it was held that;
‘‘"An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate's findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses".(Emphasis added)
5. The case before the lower court is that the Appellant, Joseph Otieno Aloice was arraigned before the Senior Resident Magistrate’s Court at Ukwala facing a main charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (Act No. 3 of 2006). The particulars of the charge were that on the 7th day of February 2025, at Ukwala village, Doho East Sub-Location, Ugenya Sub-County within Siaya County, the Appellant intentionally caused his penis to penetrate the vagina of E.A., a child aged 10 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act with the particulars being that on the 7 th day of February 2025 at Ukwala Village Doho East sub location, Ugenya Sub County within Siaya County, intentionally touched the vagina of E.A a child aged ten years old with his penis.
6. E.A (PW1) the minor complainant testified where she stated that she was 3 years old and in Grade 3. Due to apparent intellectual and cognitive limitations (suggestive of memory lapses and a lack of chronological clarity), the trial court rightly directed that she gives unsworn testimony. In her evidence-in-chief, she stated that the Appellant took her from her home to his house, ordered her to remove her underwear on his bed and inserted his "dudu" into her private parts. She testified that her brother, Omondi entered the house and found her naked while the Appellant was still inside. She further stated that this was not an isolated incident. Crucially, during cross-examination PW1 stated: "It is my teacher who told me to state what I have stated’’.
7. Jennifer Awuor Owino (PW2) the complainant’s mother, produced the minor's birth certificate (P. Exh 1) reflecting a date of birth as 15th March 2014 making her 10 years old at the time of the alleged incident. She testified that she was called away from her farm by a school emissary and advised by the teacher to take the minor to the hospital where a doctor confirmed defilement. On cross-examination, she explicitly stated that the incident occurred on a day to Christmas day (24th December 2024). On re-examination, she claimed her son Collins Omondi was the one who informed her of the assault because he had caught the Appellant in flagrante delicto (in the act).
8. Judith Atieno Owino (PW3) a teacher at St. Magdalene Academy testified that on 6th February 2025, the complainant arrived at school late exhibiting an altered painful gait. When asked, the minor complained of pain in her private parts. PW3 summoned the mother, who arrived on 7th February 2025 and admitted she was aware of the minor's condition but was treating her domestically with hot water applications. PW3 advised immediate medical attention
9. Emily Nyambura Kariuki (PW4) a Clinical Officer at Ukwala Sub-County Hospital examined the minor on 7th February 2025 at 1915 hours. She recorded fresh injuries to the genitalia specifically bruises and bilateral tears on the labia minora. However, she noted that the hymenal rupture was an "old case." She produced the P3 Form, treatment notes, and PRC Form (P. Exhs 2, 3, and 4).
10. No. 258895 PC Caroline Ajambo (PW5) the Investigating officer stated that the matter was reported on 7th February 2025. On 8th February 2025, while outside the police station, the minor spotted the Appellant walking down the road and pointed him out. The Appellant was subsequently apprehended by members of the public and processed for trial
11. The trial court later established that a prima facie case had been made out against the Appellant who was put on his defence and who elected to give a brief, unsworn statement and called no witnesses.
12. The Appellant Joseph Otiato Aloice ( DW1 ) raised a defence of alibi , asserting that from 6th November 2024, he had relocated to Mathiwa for agricultural casual labor and was nowhere near the scene of the alleged crime. He maintained that his arrest was malicious, orchestrated by an individual named Asimba who falsely implicated him to the police.
13. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied.
14. The Appellant states that he was charged and convicted of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (No. 3 of 2006) following a full trial featuring five (5) prosecution witnesses which resulted in a sentence of life imprisonment. While the Appellant explicitly notes that he does not deny the fact that the complainant (PW1) was defiled, he raises major concerns regarding his alleged involvement in the crime.
15. The Appellant submits that the prosecution's evidence is purely speculative. He points out that no single witness attested to seeing him defile the minor. The Appellant highlights that while the complainant's mother (PW2) testified that her son, Omondi witnessed the act, the prosecution failed to call Omondi as a witness to adduce his evidence. Consequently, the Appellant argues that the trial magistrate erroneously misapplied Section 124 of the Evidence Act (Cap 80) to convict him, thereby violating Article 50(4) of the Constitution of Kenya 2010.
16. The Appellant further contends that the prosecution's case lacked credibility due to stark discrepancies and contradictions within the trial record. He states that during the voire dire session, PW1 testified that she was a 3-year-old Standard 3 pupil at Adinga Primary School which directly contradicted PW2's subsequent testimony that PW1 attends St. Magdalene Primary School in Grade 2. The Appellant questions how the trial magistrate could trust the testimony of a witness who did not know her age, school or grade level especially after the trial court initially dismissed her as untrustworthy during the voire dire session.
17. Crucially, the Appellant contends that PW1 admitted to the court that she was merely testifying on what she was told and coached to say by her schoolteacher. The Appellant submits that the trial court completely ignored this highly persuasive admission arguing that PW1's entire testimony was a planned fabrication orchestrated by her teacher. He notes that this information is captured on page 9 of 25 (10) lines 2–3 of the trial record and asserts that Section 38 of the Sexual Offences Act ought to have been applied.
18. The Appellant also points out that the prosecution stopped the voire dire session after realizing PW1's weaknesses rendering it worthless to let her proceed. He reports further contradictions regarding the reporting of the crime: PW1 claimed her brother Omondi told her mother about the incident but PW2 testified that it was the teacher who informed her and instructed her to take the minor to the hospital. Furthermore, PW2's father stated that a person named Maglede Maglede Auma was sent by the teacher to call her which directly contradicted the statement of PW3, who claimed the person was Maureen Achieng. The Appellant relies on the cases of Willis Ochieng Odero v. Republic [2006] eKLR and Joseph Maina Mwangi v. Republic (Criminal Appeal No. 73 of 1993) to support his claims.
19. The Appellant asserts that the prosecution's record was full of hostilities due to shifting witness narratives. He notes that PW1 initially claimed teacher Judy noticed something was wrong then changed her story to say Omondi informed her mother then alleged that the Appellant had defiled her several times before finally admitting she was just repeating a narrative coached by her teacher. Similarly, the Appellant highlights that PW2 repeatedly shifted her story, alternating between claims that she was called by the teacher that she was informed by an anonymous person who saw the act that her son Collins Omondi caught the Appellant in the act and finally reverting to the claim that the teacher discovered the issue. The Appellant submits that both PW1 and PW2 were hostile witnesses whose evidence should not have formed the basis of his conviction, citing Abel Monari Nyanamba & 4 Others v. Republic [1996] eKLR and Batala v. Uganda [1974] E.A. 402 .
20. The Appellant also draws attention to a geographical contradiction concerning the scene of the crime. He notes that while PW1 claimed the incident took place on the bed inside the Appellant's home, the investigating officer (PW5) testified that the complainant led her to a corridor between two neighboring fences. The Appellant submits that these inadmissible and untruthful accounts led the trial court to violate Articles 47 and 50(4) of the Constitution by entering an unlawful conviction.
21. Turning to his third ground of appeal, the Appellant submits that the charge was not proved beyond a reasonable doubt. He reiterates that the prosecution failed to summon Collins Omondi, the individual alleged by both PW1 and PW2 to have caught them in the act and reported the matter. The Appellant cites Patrick Kathurima v. Republic (Criminal Appeal No. 131 of 2014, Nyeri) noting that without this witness, the prosecution's case consists of nothing but uncorroborated speculations under Section 124 of the Evidence Act.
22. Furthermore, the Appellant states that the medical evidence provided by PW4 of the Ukwala Sub-County Hospital failed to connect him to the crime. While PW4 testified that the minor exhibited two bruises and a tear on the labia minora with an old hymenal tear, the Appellant argues that no forensic or material evidence linked him to these injuries. The Appellant questions the physical plausibility of an energetic adult male in his late thirties or early forties penetrating a child multiple times only to leave superficial labia bruises while the vagina remained normal. He also points out that while the minor claimed there was anal penetration, the prosecution failed to produce any corresponding medical finding.
23. Citing B.N. Mwangi v. Republic (HCCR. Appeal No. 471 of 2001, Nairobi) and Republic v. Cheya & Another [1973] E.A. 500 (Tanzania) , the Appellant argues that the trial court's reliance on these medical findings was legally flawed. He further states that an absent hymen or labial bruises are not definitive proof of penetration as they can be caused by various other factors citing Quintanilla [1999] ABQB 769 (The Queen v. England) , P.K.W. v. Republic [2012] eKLR and Mohammed & 3 Others v. Republic [2005] 1 KLR 722 . He submits that this low threshold of evidence entitles him to an acquittal.
24. Finally on his fourth ground of appeal, the Appellant submits that he was denied a fair trial contrary to Article 50(2)(j) of the Constitution. He states that he was never served with a copy of the complainant's birth certificate, which the prosecution used at trial to prove the minor's age. He supports this ground with references to Thomas Patrick Gilbert Cholmondeley v. Republic [2008] eKLR , Republic v. Stinchcombe [1992] LRC (1) 68 (Canada) and Republic v. Daniel Chege Magotho [2014] eKLR .
25. Additionally, the Appellant reports that the trial court breached Section 213 of the Criminal Procedure Code by failing to grant him the opportunity to address the court by way of final submissions before judgment was drawn. Citing Robert Fanali Akhuya v. Republic [2002] eKLR and Erick Omondi Mbuya v. Republic (HCCR. Appeal No. 36 of 2017, Kisumu) , the Appellant argues that a fair trial must extend from plea-taking to the final determination of the case. He maintains that the trial magistrate deprived him of his constitutional protections under Articles 47 and 50 causing him to suffer an irreparable loss due to an illegal life sentence. Consequently, the Appellant prays that the appeal be allowed, his conviction quashed and his sentence set aside so that he may walk free.
26. Having reviewed the trial record, the grounds of appeal, and the written submissions, this Court finds that the appeal hinges upon two primary issues, firstly, whether the trial was conducted in accordance with the mandatory statutory and constitutional guarantees of a fair trial, with specific reference to the voir dire process and Section 213 of the Criminal Procedure Code and secondly, whether under the circumstances of this case, the proper remedy is an outright acquittal or an order for a retrial.
27. The Appellant has raised a serious challenge regarding the competence and handling of the minor witness, PW1. The trial record reveals that the prosecution stopped the voir dire session midway after encountering the minor's cognitive weaknesses, yet the trial court permitted her to give unsworn testimony. Where a witness is a child of tender years, a voir dire examination is a strict statutory prerequisite to the reception of their evidence. Under Section 19(1) of the Oaths and Statutory Declarations Act (Cap 15) and Section 125 of the Evidence Act (Cap 80) , a trial court is duty-bound to investigate whether a child understands the nature of an oath or alternatively possesses sufficient intelligence to justify the reception of their evidence and understands the duty of speaking the truth.
28. T he Court of Appeal in England recently in Regina v Campbell (Times, 10.12.1982):
“If the girl (ten years) had given unsworn evidence then corroboration of those issues was an essential requisite. If she gave sworn evidence, there was no requirement that her evidence had to be corroborated but the jury had to be directed that it would not be safe to convict unless there was corroboration.”
29. Dealing with the question of the girl taking the oath, it should be borne in mind that where there was an inquiry as to the understanding of a child witness of the nature and solemnity of an oath, the Court of Appeal in R. v Lal Khan (1981) 73 Cr. App. R. 190) made it quite clear that the questions put to a child must appear on the shorthand note so that the course the procedure took in the court below could be seen....
There Lord Justice Bridge said:
'The important consideration .... when a judge has to decide whether a child should property be sworn, is whether the child has sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.'
30. There were therefore two aspects when considering whether a child should properly be sworn: first that the child had sufficient appreciation of the particular nature of the case and second a realization that taking the oath did involve more than the ordinary duty of telling the truth in ordinary day-to-day life.
31. in Oloo s/o Gai v R. (1960) E.A. 86 the Court of Appeal held that it would have been better for the trial judge to record in terms that he had satisfied himself that the child understood the nature of an oath; since the judge had failed to direct himself or the assessors on the danger of relying on the uncorroborated evidence of a child of tender years and had also overlooked significant items of evidence bearing on the reliability of her evidence the conviction could not stand.
32. In Gabriel s/o Maholi v R. (1960) E.A. p. 159, Court of Appeal held that even in the absence of express statutory provision, it is always the duty of the court to ascertain the competence of a child to give evidence; it is not sufficient to ascertain that a child has enough intelligence to justify the reception of the evidence, but also that the child understands the difference between truth and falsehood.
33. In this case, the trial court recorded that PW1 had severe cognitive limitations, yet it failed to make a conclusive, reasoned determination regarding her capacity to understand the duty of speaking the truth. This failure was fully exposed during cross-examination when PW1 explicitly stated that her school teacher had instructed her on what to say. By failing to exhaustively conduct the voir dire , the trial court let in evidence that was structurally compromised by external tutoring. As established in Kibangeny Arap Kolil v. Republic [1959] EA 92 , when a child's testimony shows signs of coaching or rehearsal, it cannot safely sustain a conviction. The mishandling of this process amounts to a fatal procedural illegality.
34. Beyond the voir dire , the trial record reveals an equally fatal statutory omission: the trial court failed to grant the Appellant the opportunity to address the court by way of final submissions before drawing its judgment. Section 213 of the Criminal Procedure Code (Cap 75 ) explicitly dictates that at the close of the evidence, the accused person or their advocate must be permitted to sum up their case. it is a fundamental pillar of the right to be heard enshrined under Article 50(2) of the Constitution. Stripping an accused person of this right particularly in a trial carrying a potential sentence of life imprisonment amounts to a structural mistrial.
35. Structurally, the prosecution’s case was further destabilized by its failure to call Collins Omondi, the minor's brother. Both PW1 and PW2 explicitly identified Collins as the sole direct eyewitness who caught the Appellant in the act. While Section 143 of the Evidence Act does not demand a plurality of witnesses, the state cannot arbitrarily withhold a res gestae witness whose evidence is required to bridge severe operational gaps. Here, the timeline is deeply fractured: the charge sheet states February 2025, the teacher states the injury appeared on 6th February 2025 and the mother swears the event occurred in December 2024. Collins Omondi was the only witness who could have resolved this chronological failure. The unexplained omission of such a critical witness triggers the adverse presumption under law that his evidence would have been unfavorable to the state (Bukunya v. Kampala [1948] 15 EACA 69).
36. Having established that the conviction cannot stand due to a combination of procedural illegalities, non-disclosure and an incomplete trial process, this Court must determine the final disposition of this appeal. The Appellant asks that his appeal be allowed and that he be set free via an outright acquittal.
37. This Court has the express legal authority to order a retrial under Section 354(3)(a)(i) of the Criminal Procedure Code which provides that the High Court in an appeal from a conviction may:
"...reverse the finding and sentence, and acquit or discharge the accused or order him to be tried by a court of competent jurisdiction subordinate to it or by the High Court..."
17. The exercise of this power is guided by strict judicial principles. The locus classicus governing retrials is the East African Court of Appeal decision in Fatehali Manji v. Republic [1966] E.A. 343 , where the court laid down the definitive test:
“A retrial should be ordered when a conviction is vitiated by an error in law or procedure, but the evidence on record discloses a case a-fresh which a court could properly convict, and where such an order would not cause injustice to the accused or give the prosecution an unfair opportunity to fill up mere gaps in its case.”
18. The Court of Appeal in the case of Mwangi vs. Republic [1983] KLR 522 held as follows;
“…several factors have therefore to be considered. These include:
1. A retrial will not be ordered if the conviction was set aside because of insufficient evidence.
2. A retrial should not be ordered to enable the prosecution to fill up the gaps in its evidence at the first trial.
3. A retrial should not be ordered where it is likely to cause an injustice to the accused person.
4. A retrial should be ordered where the interest of justice so demand.
Each case should be decided on its own merits .”
38. Applying these principles to the matter at hand, this Court finds that a retrial is both possible and necessary. This is not a case where the record is entirely devoid of incriminating evidence. The medical testimony of the Clinical Officer (PW4) provides objective undisputed proof that a 10-year-old child suffered severe, physical genital injuries including fresh bruises and bilateral labial tears. A crime of a horrific and grave nature was undoubtedly committed against a vulnerable child.
39. The collapse of this trial was primarily caused by the trial magistrate’s failure to properly execute the voir dire and his direct violation of Section 213 of the Criminal Procedure Code. It is a long-standing principle of criminal jurisprudence that the state and the public should not be penalized with the outright release of a potential offender solely because of an error of procedure committed by the court.
40. Ordering a retrial here does not provide the prosecution an unfair opportunity to "fill up mere gaps" as prohibited by Fatehali Manji. Case (supra). Instead, it forces a complete reset of a mistrial. A fresh trial ensures that the state complies with Article 50 of the constitution by fully disclosing all documentary exhibits (such as the birth certificate) prior to trial, allows a proper court to conduct a legal voir dire e.t.c.
a) To grant an outright acquittal in the face of fresh, severe physical trauma on a 10-year-old minor simply because the trial court mismanaged statutory procedures would be a gross distortion of justice. The public interest, the protection of children under the Sexual Offences Act and the constitutional right of the Appellant to a fair and flawless trial can only be balanced by directing that this matter be heard afresh before a court of competent jurisdiction in line with the provisions of section 354(3)(a)(i) of the Criminal Procedure Code.
41. In view of the foregoing observations, it is my finding that the Appellant’s appeal is merited. The same is hereby allowed to the extent that the conviction of the Appellant, Joseph Otieno Aloice, for the offence of defilement is hereby quashed and the sentence of life imprisonment is set aside and is substituted with an order for a retrial. The case file is remitted back to the Principal Magistrate’s Court at Ukwala to be heard afresh on the same charge sheet. The Appellant be presented before Ukwala Law Courts on 13 th July 2026 for the purposes of retrial.
Dated and delivered at Siaya, this 10 th day of July 2026
D.KEMEI
JUDGE
In the presence of:
Joseph Otieno Aloice………………the Appellant
Soita…………………………………….for Respondent
Maurine………………………………Court Assistant
SIAYA CRIMINAL APPEAL E066 OF 2025 JUDGEMENT26SIAYA CRIMINAL APPEAL E066 OF 2025 JUDGEMENT26 SIAYA CRIMINAL APPEAL E066 OF 2025 JUDGEMENT26SIAYA CRIMINAL APPEAL E066 OF 2025 JUDGEMENT26
1. The Appeal herein arises from the Judgement of Hon. E. Tsimonjero (SRM) in Ukwala SO CRC No. E11 OF 2025 dated 18.9.2025 wherein he convicted and sentenced the Appellant to life imprisonment
2. The Appellant was aggrieved and filed his Petition Appeal dated 3 rd November 2025 wherein he raised the following grounds of appeal:
I. THAT, the learned trial magistrate disregarded all the open discrepancies in the evidence of the complainant thereby occasioning an injustice on his part.
II. THAT, the learned trial magistrate misdirected himself when failed to critically analyze the entire evidence and realize that inconsistencies could not sustain a conviction.
III. THAT, the prosecution did not prove its case beyond reasonable doubt.
IV. THAT, based on the foregoing, the sentence meted herein is illegal in its entirety requesting to set aside and in its place determine appropriate sentence.
V. THAT, ingredients of defilement were not proved.
3. On 11 th March 2026, the Appellant filed Amended Grounds of Appeal as follows: -
a) THAT, the learned trial magistrate erred in law and facts when he founded his findings on the prosecution's contradicted, inconsistent, un-corroborated and unproved evidence to warrant the conviction against the appellant contrary to the law.
b) THAT, the learned trial magistrate erred in law and facts when he relied upon the prosecution's hostile evidence to form the basis of his conviction contrary to the law.
c) THAT, the learned trial magistrate erred in law and facts when he convicted the appellant in the present case and failed to note that the prosecution's case was not proved beyond reasonable doubt as was required by law.
d) THAT, the learned trial magistrate erred in law and facts when he failed to conduct a fair trial in the present matter as was expected by law.
4. This being the first Appellate Court, the Court’s duty is to consider the evidence presented to the trial court with caution that it neither heard nor saw the witnesses. In Okeno- Vs- Republic (1972) EA 32 it was held that;
‘‘"An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate's findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses".(Emphasis added)
5. The case before the lower court is that the Appellant, Joseph Otieno Aloice was arraigned before the Senior Resident Magistrate’s Court at Ukwala facing a main charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (Act No. 3 of 2006). The particulars of the charge were that on the 7th day of February 2025, at Ukwala village, Doho East Sub-Location, Ugenya Sub-County within Siaya County, the Appellant intentionally caused his penis to penetrate the vagina of E.A., a child aged 10 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act with the particulars being that on the 7 th day of February 2025 at Ukwala Village Doho East sub location, Ugenya Sub County within Siaya County, intentionally touched the vagina of E.A a child aged ten years old with his penis.
6. E.A (PW1) the minor complainant testified where she stated that she was 3 years old and in Grade 3. Due to apparent intellectual and cognitive limitations (suggestive of memory lapses and a lack of chronological clarity), the trial court rightly directed that she gives unsworn testimony. In her evidence-in-chief, she stated that the Appellant took her from her home to his house, ordered her to remove her underwear on his bed and inserted his "dudu" into her private parts. She testified that her brother, Omondi entered the house and found her naked while the Appellant was still inside. She further stated that this was not an isolated incident. Crucially, during cross-examination PW1 stated: "It is my teacher who told me to state what I have stated’’.
7. Jennifer Awuor Owino (PW2) the complainant’s mother, produced the minor's birth certificate (P. Exh 1) reflecting a date of birth as 15th March 2014 making her 10 years old at the time of the alleged incident. She testified that she was called away from her farm by a school emissary and advised by the teacher to take the minor to the hospital where a doctor confirmed defilement. On cross-examination, she explicitly stated that the incident occurred on a day to Christmas day (24th December 2024). On re-examination, she claimed her son Collins Omondi was the one who informed her of the assault because he had caught the Appellant in flagrante delicto (in the act).
8. Judith Atieno Owino (PW3) a teacher at St. Magdalene Academy testified that on 6th February 2025, the complainant arrived at school late exhibiting an altered painful gait. When asked, the minor complained of pain in her private parts. PW3 summoned the mother, who arrived on 7th February 2025 and admitted she was aware of the minor's condition but was treating her domestically with hot water applications. PW3 advised immediate medical attention
9. Emily Nyambura Kariuki (PW4) a Clinical Officer at Ukwala Sub-County Hospital examined the minor on 7th February 2025 at 1915 hours. She recorded fresh injuries to the genitalia specifically bruises and bilateral tears on the labia minora. However, she noted that the hymenal rupture was an "old case." She produced the P3 Form, treatment notes, and PRC Form (P. Exhs 2, 3, and 4).
10. No. 258895 PC Caroline Ajambo (PW5) the Investigating officer stated that the matter was reported on 7th February 2025. On 8th February 2025, while outside the police station, the minor spotted the Appellant walking down the road and pointed him out. The Appellant was subsequently apprehended by members of the public and processed for trial
11. The trial court later established that a prima facie case had been made out against the Appellant who was put on his defence and who elected to give a brief, unsworn statement and called no witnesses.
12. The Appellant Joseph Otiato Aloice ( DW1 ) raised a defence of alibi , asserting that from 6th November 2024, he had relocated to Mathiwa for agricultural casual labor and was nowhere near the scene of the alleged crime. He maintained that his arrest was malicious, orchestrated by an individual named Asimba who falsely implicated him to the police.
13. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied.
14. The Appellant states that he was charged and convicted of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act (No. 3 of 2006) following a full trial featuring five (5) prosecution witnesses which resulted in a sentence of life imprisonment. While the Appellant explicitly notes that he does not deny the fact that the complainant (PW1) was defiled, he raises major concerns regarding his alleged involvement in the crime.
15. The Appellant submits that the prosecution's evidence is purely speculative. He points out that no single witness attested to seeing him defile the minor. The Appellant highlights that while the complainant's mother (PW2) testified that her son, Omondi witnessed the act, the prosecution failed to call Omondi as a witness to adduce his evidence. Consequently, the Appellant argues that the trial magistrate erroneously misapplied Section 124 of the Evidence Act (Cap 80) to convict him, thereby violating Article 50(4) of the Constitution of Kenya 2010.
16. The Appellant further contends that the prosecution's case lacked credibility due to stark discrepancies and contradictions within the trial record. He states that during the voire dire session, PW1 testified that she was a 3-year-old Standard 3 pupil at Adinga Primary School which directly contradicted PW2's subsequent testimony that PW1 attends St. Magdalene Primary School in Grade 2. The Appellant questions how the trial magistrate could trust the testimony of a witness who did not know her age, school or grade level especially after the trial court initially dismissed her as untrustworthy during the voire dire session.
17. Crucially, the Appellant contends that PW1 admitted to the court that she was merely testifying on what she was told and coached to say by her schoolteacher. The Appellant submits that the trial court completely ignored this highly persuasive admission arguing that PW1's entire testimony was a planned fabrication orchestrated by her teacher. He notes that this information is captured on page 9 of 25 (10) lines 2–3 of the trial record and asserts that Section 38 of the Sexual Offences Act ought to have been applied.
18. The Appellant also points out that the prosecution stopped the voire dire session after realizing PW1's weaknesses rendering it worthless to let her proceed. He reports further contradictions regarding the reporting of the crime: PW1 claimed her brother Omondi told her mother about the incident but PW2 testified that it was the teacher who informed her and instructed her to take the minor to the hospital. Furthermore, PW2's father stated that a person named Maglede Maglede Auma was sent by the teacher to call her which directly contradicted the statement of PW3, who claimed the person was Maureen Achieng. The Appellant relies on the cases of Willis Ochieng Odero v. Republic [2006] eKLR and Joseph Maina Mwangi v. Republic (Criminal Appeal No. 73 of 1993) to support his claims.
19. The Appellant asserts that the prosecution's record was full of hostilities due to shifting witness narratives. He notes that PW1 initially claimed teacher Judy noticed something was wrong then changed her story to say Omondi informed her mother then alleged that the Appellant had defiled her several times before finally admitting she was just repeating a narrative coached by her teacher. Similarly, the Appellant highlights that PW2 repeatedly shifted her story, alternating between claims that she was called by the teacher that she was informed by an anonymous person who saw the act that her son Collins Omondi caught the Appellant in the act and finally reverting to the claim that the teacher discovered the issue. The Appellant submits that both PW1 and PW2 were hostile witnesses whose evidence should not have formed the basis of his conviction, citing Abel Monari Nyanamba & 4 Others v. Republic [1996] eKLR and Batala v. Uganda [1974] E.A. 402 .
20. The Appellant also draws attention to a geographical contradiction concerning the scene of the crime. He notes that while PW1 claimed the incident took place on the bed inside the Appellant's home, the investigating officer (PW5) testified that the complainant led her to a corridor between two neighboring fences. The Appellant submits that these inadmissible and untruthful accounts led the trial court to violate Articles 47 and 50(4) of the Constitution by entering an unlawful conviction.
21. Turning to his third ground of appeal, the Appellant submits that the charge was not proved beyond a reasonable doubt. He reiterates that the prosecution failed to summon Collins Omondi, the individual alleged by both PW1 and PW2 to have caught them in the act and reported the matter. The Appellant cites Patrick Kathurima v. Republic (Criminal Appeal No. 131 of 2014, Nyeri) noting that without this witness, the prosecution's case consists of nothing but uncorroborated speculations under Section 124 of the Evidence Act.
22. Furthermore, the Appellant states that the medical evidence provided by PW4 of the Ukwala Sub-County Hospital failed to connect him to the crime. While PW4 testified that the minor exhibited two bruises and a tear on the labia minora with an old hymenal tear, the Appellant argues that no forensic or material evidence linked him to these injuries. The Appellant questions the physical plausibility of an energetic adult male in his late thirties or early forties penetrating a child multiple times only to leave superficial labia bruises while the vagina remained normal. He also points out that while the minor claimed there was anal penetration, the prosecution failed to produce any corresponding medical finding.
23. Citing B.N. Mwangi v. Republic (HCCR. Appeal No. 471 of 2001, Nairobi) and Republic v. Cheya & Another [1973] E.A. 500 (Tanzania) , the Appellant argues that the trial court's reliance on these medical findings was legally flawed. He further states that an absent hymen or labial bruises are not definitive proof of penetration as they can be caused by various other factors citing Quintanilla [1999] ABQB 769 (The Queen v. England) , P.K.W. v. Republic [2012] eKLR and Mohammed & 3 Others v. Republic [2005] 1 KLR 722 . He submits that this low threshold of evidence entitles him to an acquittal.
24. Finally on his fourth ground of appeal, the Appellant submits that he was denied a fair trial contrary to Article 50(2)(j) of the Constitution. He states that he was never served with a copy of the complainant's birth certificate, which the prosecution used at trial to prove the minor's age. He supports this ground with references to Thomas Patrick Gilbert Cholmondeley v. Republic [2008] eKLR , Republic v. Stinchcombe [1992] LRC (1) 68 (Canada) and Republic v. Daniel Chege Magotho [2014] eKLR .
25. Additionally, the Appellant reports that the trial court breached Section 213 of the Criminal Procedure Code by failing to grant him the opportunity to address the court by way of final submissions before judgment was drawn. Citing Robert Fanali Akhuya v. Republic [2002] eKLR and Erick Omondi Mbuya v. Republic (HCCR. Appeal No. 36 of 2017, Kisumu) , the Appellant argues that a fair trial must extend from plea-taking to the final determination of the case. He maintains that the trial magistrate deprived him of his constitutional protections under Articles 47 and 50 causing him to suffer an irreparable loss due to an illegal life sentence. Consequently, the Appellant prays that the appeal be allowed, his conviction quashed and his sentence set aside so that he may walk free.
26. Having reviewed the trial record, the grounds of appeal, and the written submissions, this Court finds that the appeal hinges upon two primary issues, firstly, whether the trial was conducted in accordance with the mandatory statutory and constitutional guarantees of a fair trial, with specific reference to the voir dire process and Section 213 of the Criminal Procedure Code and secondly, whether under the circumstances of this case, the proper remedy is an outright acquittal or an order for a retrial.
27. The Appellant has raised a serious challenge regarding the competence and handling of the minor witness, PW1. The trial record reveals that the prosecution stopped the voir dire session midway after encountering the minor's cognitive weaknesses, yet the trial court permitted her to give unsworn testimony. Where a witness is a child of tender years, a voir dire examination is a strict statutory prerequisite to the reception of their evidence. Under Section 19(1) of the Oaths and Statutory Declarations Act (Cap 15) and Section 125 of the Evidence Act (Cap 80) , a trial court is duty-bound to investigate whether a child understands the nature of an oath or alternatively possesses sufficient intelligence to justify the reception of their evidence and understands the duty of speaking the truth.
28. T he Court of Appeal in England recently in Regina v Campbell (Times, 10.12.1982):
“If the girl (ten years) had given unsworn evidence then corroboration of those issues was an essential requisite. If she gave sworn evidence, there was no requirement that her evidence had to be corroborated but the jury had to be directed that it would not be safe to convict unless there was corroboration.”
29. Dealing with the question of the girl taking the oath, it should be borne in mind that where there was an inquiry as to the understanding of a child witness of the nature and solemnity of an oath, the Court of Appeal in R. v Lal Khan (1981) 73 Cr. App. R. 190) made it quite clear that the questions put to a child must appear on the shorthand note so that the course the procedure took in the court below could be seen....
There Lord Justice Bridge said:
'The important consideration .... when a judge has to decide whether a child should property be sworn, is whether the child has sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct.'
30. There were therefore two aspects when considering whether a child should properly be sworn: first that the child had sufficient appreciation of the particular nature of the case and second a realization that taking the oath did involve more than the ordinary duty of telling the truth in ordinary day-to-day life.
31. in Oloo s/o Gai v R. (1960) E.A. 86 the Court of Appeal held that it would have been better for the trial judge to record in terms that he had satisfied himself that the child understood the nature of an oath; since the judge had failed to direct himself or the assessors on the danger of relying on the uncorroborated evidence of a child of tender years and had also overlooked significant items of evidence bearing on the reliability of her evidence the conviction could not stand.
32. In Gabriel s/o Maholi v R. (1960) E.A. p. 159, Court of Appeal held that even in the absence of express statutory provision, it is always the duty of the court to ascertain the competence of a child to give evidence; it is not sufficient to ascertain that a child has enough intelligence to justify the reception of the evidence, but also that the child understands the difference between truth and falsehood.
33. In this case, the trial court recorded that PW1 had severe cognitive limitations, yet it failed to make a conclusive, reasoned determination regarding her capacity to understand the duty of speaking the truth. This failure was fully exposed during cross-examination when PW1 explicitly stated that her school teacher had instructed her on what to say. By failing to exhaustively conduct the voir dire , the trial court let in evidence that was structurally compromised by external tutoring. As established in Kibangeny Arap Kolil v. Republic [1959] EA 92 , when a child's testimony shows signs of coaching or rehearsal, it cannot safely sustain a conviction. The mishandling of this process amounts to a fatal procedural illegality.
34. Beyond the voir dire , the trial record reveals an equally fatal statutory omission: the trial court failed to grant the Appellant the opportunity to address the court by way of final submissions before drawing its judgment. Section 213 of the Criminal Procedure Code (Cap 75 ) explicitly dictates that at the close of the evidence, the accused person or their advocate must be permitted to sum up their case. it is a fundamental pillar of the right to be heard enshrined under Article 50(2) of the Constitution. Stripping an accused person of this right particularly in a trial carrying a potential sentence of life imprisonment amounts to a structural mistrial.
35. Structurally, the prosecution’s case was further destabilized by its failure to call Collins Omondi, the minor's brother. Both PW1 and PW2 explicitly identified Collins as the sole direct eyewitness who caught the Appellant in the act. While Section 143 of the Evidence Act does not demand a plurality of witnesses, the state cannot arbitrarily withhold a res gestae witness whose evidence is required to bridge severe operational gaps. Here, the timeline is deeply fractured: the charge sheet states February 2025, the teacher states the injury appeared on 6th February 2025 and the mother swears the event occurred in December 2024. Collins Omondi was the only witness who could have resolved this chronological failure. The unexplained omission of such a critical witness triggers the adverse presumption under law that his evidence would have been unfavorable to the state (Bukunya v. Kampala [1948] 15 EACA 69).
36. Having established that the conviction cannot stand due to a combination of procedural illegalities, non-disclosure and an incomplete trial process, this Court must determine the final disposition of this appeal. The Appellant asks that his appeal be allowed and that he be set free via an outright acquittal.
37. This Court has the express legal authority to order a retrial under Section 354(3)(a)(i) of the Criminal Procedure Code which provides that the High Court in an appeal from a conviction may:
"...reverse the finding and sentence, and acquit or discharge the accused or order him to be tried by a court of competent jurisdiction subordinate to it or by the High Court..."
17. The exercise of this power is guided by strict judicial principles. The locus classicus governing retrials is the East African Court of Appeal decision in Fatehali Manji v. Republic [1966] E.A. 343 , where the court laid down the definitive test:
“A retrial should be ordered when a conviction is vitiated by an error in law or procedure, but the evidence on record discloses a case a-fresh which a court could properly convict, and where such an order would not cause injustice to the accused or give the prosecution an unfair opportunity to fill up mere gaps in its case.”
18. The Court of Appeal in the case of Mwangi vs. Republic [1983] KLR 522 held as follows;
“…several factors have therefore to be considered. These include:
1. A retrial will not be ordered if the conviction was set aside because of insufficient evidence.
2. A retrial should not be ordered to enable the prosecution to fill up the gaps in its evidence at the first trial.
3. A retrial should not be ordered where it is likely to cause an injustice to the accused person.
4. A retrial should be ordered where the interest of justice so demand.
Each case should be decided on its own merits .”
38. Applying these principles to the matter at hand, this Court finds that a retrial is both possible and necessary. This is not a case where the record is entirely devoid of incriminating evidence. The medical testimony of the Clinical Officer (PW4) provides objective undisputed proof that a 10-year-old child suffered severe, physical genital injuries including fresh bruises and bilateral labial tears. A crime of a horrific and grave nature was undoubtedly committed against a vulnerable child.
39. The collapse of this trial was primarily caused by the trial magistrate’s failure to properly execute the voir dire and his direct violation of Section 213 of the Criminal Procedure Code. It is a long-standing principle of criminal jurisprudence that the state and the public should not be penalized with the outright release of a potential offender solely because of an error of procedure committed by the court.
40. Ordering a retrial here does not provide the prosecution an unfair opportunity to "fill up mere gaps" as prohibited by Fatehali Manji. Case (supra). Instead, it forces a complete reset of a mistrial. A fresh trial ensures that the state complies with Article 50 of the constitution by fully disclosing all documentary exhibits (such as the birth certificate) prior to trial, allows a proper court to conduct a legal voir dire e.t.c.
a) To grant an outright acquittal in the face of fresh, severe physical trauma on a 10-year-old minor simply because the trial court mismanaged statutory procedures would be a gross distortion of justice. The public interest, the protection of children under the Sexual Offences Act and the constitutional right of the Appellant to a fair and flawless trial can only be balanced by directing that this matter be heard afresh before a court of competent jurisdiction in line with the provisions of section 354(3)(a)(i) of the Criminal Procedure Code.
41. In view of the foregoing observations, it is my finding that the Appellant’s appeal is merited. The same is hereby allowed to the extent that the conviction of the Appellant, Joseph Otieno Aloice, for the offence of defilement is hereby quashed and the sentence of life imprisonment is set aside and is substituted with an order for a retrial. The case file is remitted back to the Principal Magistrate’s Court at Ukwala to be heard afresh on the same charge sheet. The Appellant be presented before Ukwala Law Courts on 13 th July 2026 for the purposes of retrial.
Dated and delivered at Siaya, this 10 th day of July 2026
D.KEMEI
JUDGE
In the presence of:
Joseph Otieno Aloice………………the Appellant
Soita…………………………………….for Respondent
Maurine………………………………Court Assistant
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