( Being an appeal from the conviction and sentence in Migori MCSO Case No. E023 of 2023 vide a judgement delivered by Hon. M. Okuche, Senior Principal Magistrate, on 30 th July, 2025)
JUDGMENT.
Introduction
1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that the Appellant on diverse dates between the 20 th April, 2024 and the 22 nd April, 2024 at Sagero village, Sagero Location, Suna West Sub county in Migori County within the Republic of Kenya, intentionally caused his penis to penetrate the vagina of V.A.O a child aged 14 years.
2. The Appellant was further charged with an alternative count 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 offences are that on diverse dates between 20 th April, 2024 and 22 nd April, 2024 at Sagero village, Sagero Location, Suna west sub county in Migori County within the Republic of Kenya intentionally touched the vagina of V.A.O a child aged 14 years with his penis.
3. The Appellant was eventually convicted of the offence of defilement and was sentenced to Twenty (20) years imprisonment. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
1. That the trial court erred in law and in fact in failing to accord the Appellant his constitutional rights to fair trial pursuant to article 50(2) (g) (h) of the Constitution of Kenya, 2010.
2. That the trial court erred in law and fact in not ordering the Appellant’s sentence commence from the date of the arrest rather than conviction.
3. That the trial court erred in law and fact in not making a finding that it was compelling for the court to order unconstitutional and absolute discharge for the appellant to consider a non – custodial sentence in regard to the appellant’s age.
4. That the trial court erred in law and fact in not making a finding that penetration by the Appellant was not proved to the required standard.
5. That the trial court erred in law and in facts to admit the appellant’s defence .
Prosecution’s case
4. PW1 testified that on the 20/4/2024 she got out for a short call and the Appellant was near the fence. That she knew him before the incident in court. She testified that the Appellant called her and she went to him and then she was asked by the Appellant if they could become lovers. PW1 testified that she refused and the Appellant started touching her. That she was then taken to his kitchen where they had sexual intercourse with him. When she left to go home a child of the Appellant who was well known to PW1 saw her and when she asked her what had happened PW1 testifies to narrating what had happened to her. She testified that it was the Appellant’s daughter who then reported the matter to his eldest brother, who then reported to his father, who then reported to the clan elder. She further testified that the matter was later reported to the police station in the company of his father and later they went to the hospital. She stated that the incident has occurred twice. The second occasion she testified it was her who went to the Appellant’s home and they engaged in sexual activities around 9.00P.M. On cross examination she reiterated that she was called to the kitchen by the Appellant.
5. PW2 testified that on that day he was called by the clan elder and was told to go home as there was a problem. Upon arrival he was informed that the Appellant had had sexual intercourse with his daughter PW1 but the said Appellant had already been arrested. He testified that he accompanied the minor the minor to the hospital who at the time was aged 14 years of age. No cross examination was conducted
6. PW3 testified that he was called that night by a brother to the Complainant and insisted that he visits their home the very night as his sister had been found in the kitchen with the Appellant at midnight and the Kitchen belonged to the Appellant. The following day he talked to the parties involved as well as the victims’ family. No cross examination was conducted
7. PW4 testified that on the night of the incident around midnight she went out for a short call when she heard people speaking in the kitchen, and around the same time she saw PW1 walking on the road to their home. In the morning she informed her mother that she saw PW1. No cross examination conducted.
8. PW5 testified that the clan elder asked her to arbitrate on a matter and he led him to the house of PW1’s father. He testified that they interrogated PW4 who informed them that she heard two people talking in the kitchen and she was able to recognize the voice the Appellant and they later thereafter took him to the police station. On cross examination she he testified that the Appellant informed then that he was with the minor but did not partake anything.
9. PW6 testified that she went to the meeting to arbitrate where he found PW1, PW2 and the Appellant and other people there. She testified that PW1 told her that they were just story telling with the Appellant. on cross examination she testified that PW1 denied being defiled by the Appellant.
10. PW7, the clinical officer testified that on examination of the minor, there was laceration on vaginal wall showing aspect of penetration, that the hymen was broken but was not fresh. He testified that there was visible blood on the vulva but PW1 stated it was due to menses. He further testified that the Appellant also was also examined and there were no bruises seen on the genitals, that there was visible scrotum swelling, there was blood in his urine but no spermatozoa were seen. He further produced copies of treatments notes, P3 form and PRC form before the trial court.
11. PW8 testified that on the 23/4/2024 the clan elder, the appellant, PW1 & PW2 came to the police station. He testified to interrogating the parties and PW1 informed them that he had been defiled and he knew the suspects as they were neighbours. That further she informed them that it was not the first time the incident was happening and that it used to happen in the kitchen of the Appellant at night. He testified to taking both the Appellant and PW1 to the hospital where they were examined. He proceeded to produce a copy of the photographs of the scene and the birth certificate of the PW1 before court. On cross examination, he testified that there was no dispute between the Appellant and PW2 as the dispute was between him and a brother to the minor. On re-examination he testified that he came to know of the dispute after the Appellant had been charged.
Defense’s Case
12. In his Defence, he gave unsworn evidence and testified that he bought land from the Complainant’s father in the year 1994 and they have a dispute over the same. That PW2 has even cut him with a jembe and bewitched him. He testified that at some point the chief sorted out their boundary dispute but PW2 later sent his son who hit his testicles and as a result he lost his testicles and cannot partake in sexual encounters.
13. Both parties filed their written submissions. The Appellant filed the submissions under the heading of Grounds of Appeal and they are dated 11 th May 2026. The Respondents submissions are dated 15 th May 2026.
Appellant’s submissions
14. The appellant vide their submissions dated the 11 th May, 2026 he contends that the Prosecution breached his right to Article 50(2) (g) (h) of the Constitution by failing to inform him of his right to fair hearing. He further submits that the court to invoke Section 333(2) of the Criminal Procedure Code (CPC) as he was in custody from the date of arrest and the same was not taken into account during his conviction. He prayed for a non-custodial sentence and/or the finding that the Prosecution failed to prove the ingredients of the offence therein.
Respondent’s submissions
15. The Respondent filed their submissions dated the 15 th May, 2026 where the Respondent argued that 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 in its entirety.
Analysis and Determination
16. 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.
17. One of the key issues to determine is whether the appellant’s rights to a fair trial under were violated and if so, what should the court do. Article 50(2)(g) and (h) of the Constitution provides as follows:
“ 50(2). Every person has the right to a fair trial which includes the right….
(g) to choose and be represented by an advocate, and to be informed of this right promptly.
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly .”
18. I have perused the court record from the time the appellant took plea on 25/04/2024 up to the time the hearing commenced on 22/05/2024 up to the time prosecution closed its case on 24/03/2025 and the court never informed the appellant of his right to choose an advocate of his choice to defend him nor was he informed that he had a right to be represented by an advocate.
19. I also note that he was never informed of the right to being assigned counsel by the State at the State expenses if injustice would result.
20. In Chacha Mwita vs Republic CRA 33 of 2019 and Migori CR Appeal 44 of 2019 , Mrima J exhaustively dealt with allegations of breach of the right to fair hearing guaranteed under Article 50 (2)(g), as respects what that right entails. The judge stated as follows:
14. That being the record the question which now begs an answer is what entails the right as provided in Article 50(2)(g) of the Constitution. The reading of the said provision avails that an accused person must be promptly informed of the right to choose to be represented by an Advocate. Since the Constitution does not define the word ‘choose’ I will make reference to the Tenth Edition of the Black’s Law Dictionary on how the said word is defined. The said Dictionary does not expressly define the word ‘choose or choice’ but refers one to ‘Freedom of Choice’ (See page 294 thereof). At page 779 the Dictionary defines ‘freedom’ as follows: -
i. The quality, state or condition of being free or liberated esp. the right to do what one wants without being controlled or restricted by anyone .
15. The Dictionary further defines ‘Freedom of Choice’ as ‘the liberty embodied in the exercise of one’s right’. The Second Edition of the Law Dictionary has the following to say about the ‘Freedom of Choice’: -
Unfettered right to do what one wants when one wants as one wants, except where it infringes or prevents another from doing what that one wants, and do so on. Also excluded is doing something that would harm one’s self or another.
16. To choose hence connotes options and discretion. When one is called upon to make a choice it must mean that the person has been availed with options upon which he/she may exercise his/her discretion. The right to choose an Advocate of one’s choice as embodied in Article 50(2)(g) of the Constitution therefore means that for an accused person to exercise that right he/she must be certainly told of the right to legal representation by an Advocate of one’s choice and any other attendant information be availed accordingly to be able to make a choice on whether he/she requires any legal representation.
21. It is therefore trite that the right to fair hearing cannot be limited and one must be allowed the opportunity to make a choice, and to choose his own advocate.
22. Mrima J formed the view that under Article 50(2)(g) of the Constitution , it is upon the court to inform the Accused of his rights. The judge or the magistrate being the one in charge of the court is the person charged with the duty to inform the accused of his rights.
23. This was further reiterated in Joseph Kiema Philip vs Republic [2019] KEHC 7989 (KLR ) where the court stated as follows:
“…. The earliest opportunity therefore should be at the time of plea taking; the first appearance before plea is taken or at the commencement of the proceedings, that is at the first hearings… (emphasis added) .
24. I must emphasize that the accused person must be informed of this right immediately they appear before a court on the first appearance regardless of whether the plea would be taken at that point in time or later. Of importance is the emphasis that since the court speaks through the record then the record must be as clear as possible and ought to capture the entire conversation between the court and an accused person.
25. A court should therefore not be in a hurry to take the plea before ascertaining that it has fully complied with Article 50(2)(g) of the Constitution among others as required. Circumstances calling, a court should boldly postpone the plea-taking until satisfied that the court has fully complied with the law.
26. The court observed that the record of the court should indicate that an accused was informed of his right to representation. That must be the position because in the event that the accused later alleges non-compliance, the record would speak for itself however the record of the trial court in this case has not demonstrated that the right was explained to the Appellant. (See Joseph Kiema Philip v Republic [2019] KEHC 7989 (KLR )
27. I therefore find that violation of Article 50(2)(g) of the Constitution , rendered the proceedings a nullity before the trial court.
28. In respect to violation of Article 50(2)(h) of the Constitution , unlike the right under Sub Article 2 (g) the said right to legal representation at the State’s expenses is not absolute because there are instances where the same can be limited.
29. In Thomas Alugha Ndegwa vs Republic CRA 2 of 2014 case the Court of Appeal found that because the applicant faced a life sentence, substantial injustice would result unless he was represented and found that the applicant was eligible to making an application to the National Legal Aid Board in accordance with Section 41 of the Legal Aid Act.
30. It is trite to note that legal Act was established to give effect to Articles 19 (2) (general provision on the Bill of Rights); 48 (right of access to justice); 50 (2) (g) and (h) (right of fair hearing) of the Constitution; to facilitate access to justice and social justice; to establish the National Legal Aid Service; to provide for legal aid and for the funding of legal aid and for connected purposes.
31. In the instant case, I have perused the court record and it is clear that the trial court did not inform the applicant of his right to legal representation at the State expense. The appellant was charged with the offence of defilement which is a very serious offence and carries a maximum sentence of life imprisonment upon conviction and owing to the fact that substantial injustice would arise without legal representation. I find that the violation of the said right also rendered the trial a nullity.
32. 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 20 years’ 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.
33. In the case at hand the offence was allegedly committed in diverse dates between 20 th April, 2024 and 22 nd April, 2024 and he was sentenced on the 30 th of July, 2025 which is approximately 2 years 4 months ago. From the trial record, the witnesses live within the same home environment hence will not be hard to trace them and there is no evidence that the appellant will suffer any prejudice if a retrial is ordered.
34. Having considered the appeal, the circumstances and facts of this case I find this a fit case for an order of retrial. I therefore order that a retrial be held in this case.
35. I Order that the accused be released to the police at Migori Police Station to be charged afresh and presented to the Chief Magistrate’s Court Migori for taking plea and the case be allocated to any other magistrate other than Hon. M. Okuche – Senior Principal Magistrate who dealt with the case.
It is so ordered .
Dated, signed and delivered virtually via Microsoft Teams this 10 th September 2026.
HCCRA NO. E083 OF 2025 JULIUS OWALA NYAOKE VS REPUBLIC JUDGMENT Pg. 9
JUDGMENT.
Introduction
1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that the Appellant on diverse dates between the 20 th April, 2024 and the 22 nd April, 2024 at Sagero village, Sagero Location, Suna West Sub county in Migori County within the Republic of Kenya, intentionally caused his penis to penetrate the vagina of V.A.O a child aged 14 years.
2. The Appellant was further charged with an alternative count 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 offences are that on diverse dates between 20 th April, 2024 and 22 nd April, 2024 at Sagero village, Sagero Location, Suna west sub county in Migori County within the Republic of Kenya intentionally touched the vagina of V.A.O a child aged 14 years with his penis.
3. The Appellant was eventually convicted of the offence of defilement and was sentenced to Twenty (20) years imprisonment. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
1. That the trial court erred in law and in fact in failing to accord the Appellant his constitutional rights to fair trial pursuant to article 50(2) (g) (h) of the Constitution of Kenya, 2010.
2. That the trial court erred in law and fact in not ordering the Appellant’s sentence commence from the date of the arrest rather than conviction.
3. That the trial court erred in law and fact in not making a finding that it was compelling for the court to order unconstitutional and absolute discharge for the appellant to consider a non – custodial sentence in regard to the appellant’s age.
4. That the trial court erred in law and fact in not making a finding that penetration by the Appellant was not proved to the required standard.
5. That the trial court erred in law and in facts to admit the appellant’s defence .
Prosecution’s case
4. PW1 testified that on the 20/4/2024 she got out for a short call and the Appellant was near the fence. That she knew him before the incident in court. She testified that the Appellant called her and she went to him and then she was asked by the Appellant if they could become lovers. PW1 testified that she refused and the Appellant started touching her. That she was then taken to his kitchen where they had sexual intercourse with him. When she left to go home a child of the Appellant who was well known to PW1 saw her and when she asked her what had happened PW1 testifies to narrating what had happened to her. She testified that it was the Appellant’s daughter who then reported the matter to his eldest brother, who then reported to his father, who then reported to the clan elder. She further testified that the matter was later reported to the police station in the company of his father and later they went to the hospital. She stated that the incident has occurred twice. The second occasion she testified it was her who went to the Appellant’s home and they engaged in sexual activities around 9.00P.M. On cross examination she reiterated that she was called to the kitchen by the Appellant.
5. PW2 testified that on that day he was called by the clan elder and was told to go home as there was a problem. Upon arrival he was informed that the Appellant had had sexual intercourse with his daughter PW1 but the said Appellant had already been arrested. He testified that he accompanied the minor the minor to the hospital who at the time was aged 14 years of age. No cross examination was conducted
6. PW3 testified that he was called that night by a brother to the Complainant and insisted that he visits their home the very night as his sister had been found in the kitchen with the Appellant at midnight and the Kitchen belonged to the Appellant. The following day he talked to the parties involved as well as the victims’ family. No cross examination was conducted
7. PW4 testified that on the night of the incident around midnight she went out for a short call when she heard people speaking in the kitchen, and around the same time she saw PW1 walking on the road to their home. In the morning she informed her mother that she saw PW1. No cross examination conducted.
8. PW5 testified that the clan elder asked her to arbitrate on a matter and he led him to the house of PW1’s father. He testified that they interrogated PW4 who informed them that she heard two people talking in the kitchen and she was able to recognize the voice the Appellant and they later thereafter took him to the police station. On cross examination she he testified that the Appellant informed then that he was with the minor but did not partake anything.
9. PW6 testified that she went to the meeting to arbitrate where he found PW1, PW2 and the Appellant and other people there. She testified that PW1 told her that they were just story telling with the Appellant. on cross examination she testified that PW1 denied being defiled by the Appellant.
10. PW7, the clinical officer testified that on examination of the minor, there was laceration on vaginal wall showing aspect of penetration, that the hymen was broken but was not fresh. He testified that there was visible blood on the vulva but PW1 stated it was due to menses. He further testified that the Appellant also was also examined and there were no bruises seen on the genitals, that there was visible scrotum swelling, there was blood in his urine but no spermatozoa were seen. He further produced copies of treatments notes, P3 form and PRC form before the trial court.
11. PW8 testified that on the 23/4/2024 the clan elder, the appellant, PW1 & PW2 came to the police station. He testified to interrogating the parties and PW1 informed them that he had been defiled and he knew the suspects as they were neighbours. That further she informed them that it was not the first time the incident was happening and that it used to happen in the kitchen of the Appellant at night. He testified to taking both the Appellant and PW1 to the hospital where they were examined. He proceeded to produce a copy of the photographs of the scene and the birth certificate of the PW1 before court. On cross examination, he testified that there was no dispute between the Appellant and PW2 as the dispute was between him and a brother to the minor. On re-examination he testified that he came to know of the dispute after the Appellant had been charged.
Defense’s Case
12. In his Defence, he gave unsworn evidence and testified that he bought land from the Complainant’s father in the year 1994 and they have a dispute over the same. That PW2 has even cut him with a jembe and bewitched him. He testified that at some point the chief sorted out their boundary dispute but PW2 later sent his son who hit his testicles and as a result he lost his testicles and cannot partake in sexual encounters.
13. Both parties filed their written submissions. The Appellant filed the submissions under the heading of Grounds of Appeal and they are dated 11 th May 2026. The Respondents submissions are dated 15 th May 2026.
Appellant’s submissions
14. The appellant vide their submissions dated the 11 th May, 2026 he contends that the Prosecution breached his right to Article 50(2) (g) (h) of the Constitution by failing to inform him of his right to fair hearing. He further submits that the court to invoke Section 333(2) of the Criminal Procedure Code (CPC) as he was in custody from the date of arrest and the same was not taken into account during his conviction. He prayed for a non-custodial sentence and/or the finding that the Prosecution failed to prove the ingredients of the offence therein.
Respondent’s submissions
15. The Respondent filed their submissions dated the 15 th May, 2026 where the Respondent argued that 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 in its entirety.
Analysis and Determination
16. 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.
17. One of the key issues to determine is whether the appellant’s rights to a fair trial under were violated and if so, what should the court do. Article 50(2)(g) and (h) of the Constitution provides as follows:
“ 50(2). Every person has the right to a fair trial which includes the right….
(g) to choose and be represented by an advocate, and to be informed of this right promptly.
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly .”
18. I have perused the court record from the time the appellant took plea on 25/04/2024 up to the time the hearing commenced on 22/05/2024 up to the time prosecution closed its case on 24/03/2025 and the court never informed the appellant of his right to choose an advocate of his choice to defend him nor was he informed that he had a right to be represented by an advocate.
19. I also note that he was never informed of the right to being assigned counsel by the State at the State expenses if injustice would result.
20. In Chacha Mwita vs Republic CRA 33 of 2019 and Migori CR Appeal 44 of 2019 , Mrima J exhaustively dealt with allegations of breach of the right to fair hearing guaranteed under Article 50 (2)(g), as respects what that right entails. The judge stated as follows:
14. That being the record the question which now begs an answer is what entails the right as provided in Article 50(2)(g) of the Constitution. The reading of the said provision avails that an accused person must be promptly informed of the right to choose to be represented by an Advocate. Since the Constitution does not define the word ‘choose’ I will make reference to the Tenth Edition of the Black’s Law Dictionary on how the said word is defined. The said Dictionary does not expressly define the word ‘choose or choice’ but refers one to ‘Freedom of Choice’ (See page 294 thereof). At page 779 the Dictionary defines ‘freedom’ as follows: -
i. The quality, state or condition of being free or liberated esp. the right to do what one wants without being controlled or restricted by anyone .
15. The Dictionary further defines ‘Freedom of Choice’ as ‘the liberty embodied in the exercise of one’s right’. The Second Edition of the Law Dictionary has the following to say about the ‘Freedom of Choice’: -
Unfettered right to do what one wants when one wants as one wants, except where it infringes or prevents another from doing what that one wants, and do so on. Also excluded is doing something that would harm one’s self or another.
16. To choose hence connotes options and discretion. When one is called upon to make a choice it must mean that the person has been availed with options upon which he/she may exercise his/her discretion. The right to choose an Advocate of one’s choice as embodied in Article 50(2)(g) of the Constitution therefore means that for an accused person to exercise that right he/she must be certainly told of the right to legal representation by an Advocate of one’s choice and any other attendant information be availed accordingly to be able to make a choice on whether he/she requires any legal representation.
21. It is therefore trite that the right to fair hearing cannot be limited and one must be allowed the opportunity to make a choice, and to choose his own advocate.
22. Mrima J formed the view that under Article 50(2)(g) of the Constitution , it is upon the court to inform the Accused of his rights. The judge or the magistrate being the one in charge of the court is the person charged with the duty to inform the accused of his rights.
23. This was further reiterated in Joseph Kiema Philip vs Republic [2019] KEHC 7989 (KLR ) where the court stated as follows:
“…. The earliest opportunity therefore should be at the time of plea taking; the first appearance before plea is taken or at the commencement of the proceedings, that is at the first hearings… (emphasis added) .
24. I must emphasize that the accused person must be informed of this right immediately they appear before a court on the first appearance regardless of whether the plea would be taken at that point in time or later. Of importance is the emphasis that since the court speaks through the record then the record must be as clear as possible and ought to capture the entire conversation between the court and an accused person.
25. A court should therefore not be in a hurry to take the plea before ascertaining that it has fully complied with Article 50(2)(g) of the Constitution among others as required. Circumstances calling, a court should boldly postpone the plea-taking until satisfied that the court has fully complied with the law.
26. The court observed that the record of the court should indicate that an accused was informed of his right to representation. That must be the position because in the event that the accused later alleges non-compliance, the record would speak for itself however the record of the trial court in this case has not demonstrated that the right was explained to the Appellant. (See Joseph Kiema Philip v Republic [2019] KEHC 7989 (KLR )
27. I therefore find that violation of Article 50(2)(g) of the Constitution , rendered the proceedings a nullity before the trial court.
28. In respect to violation of Article 50(2)(h) of the Constitution , unlike the right under Sub Article 2 (g) the said right to legal representation at the State’s expenses is not absolute because there are instances where the same can be limited.
29. In Thomas Alugha Ndegwa vs Republic CRA 2 of 2014 case the Court of Appeal found that because the applicant faced a life sentence, substantial injustice would result unless he was represented and found that the applicant was eligible to making an application to the National Legal Aid Board in accordance with Section 41 of the Legal Aid Act.
30. It is trite to note that legal Act was established to give effect to Articles 19 (2) (general provision on the Bill of Rights); 48 (right of access to justice); 50 (2) (g) and (h) (right of fair hearing) of the Constitution; to facilitate access to justice and social justice; to establish the National Legal Aid Service; to provide for legal aid and for the funding of legal aid and for connected purposes.
31. In the instant case, I have perused the court record and it is clear that the trial court did not inform the applicant of his right to legal representation at the State expense. The appellant was charged with the offence of defilement which is a very serious offence and carries a maximum sentence of life imprisonment upon conviction and owing to the fact that substantial injustice would arise without legal representation. I find that the violation of the said right also rendered the trial a nullity.
32. 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 20 years’ 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.
33. In the case at hand the offence was allegedly committed in diverse dates between 20 th April, 2024 and 22 nd April, 2024 and he was sentenced on the 30 th of July, 2025 which is approximately 2 years 4 months ago. From the trial record, the witnesses live within the same home environment hence will not be hard to trace them and there is no evidence that the appellant will suffer any prejudice if a retrial is ordered.
34. Having considered the appeal, the circumstances and facts of this case I find this a fit case for an order of retrial. I therefore order that a retrial be held in this case.
35. I Order that the accused be released to the police at Migori Police Station to be charged afresh and presented to the Chief Magistrate’s Court Migori for taking plea and the case be allocated to any other magistrate other than Hon. M. Okuche – Senior Principal Magistrate who dealt with the case.
It is so ordered .
Dated, signed and delivered virtually via Microsoft Teams this 10 th September 2026.
HCCRA NO. E083 OF 2025 JULIUS OWALA NYAOKE VS REPUBLIC JUDGMENT Pg. 9