1. Nicholas Okoth Ogutu, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on the 8th day of August 2021, at Nyang’aya village, Awendo sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of M.A.O, a child aged thirteen years.
3. The appellant was sentenced to serve twenty years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) The offence of herein was not proved.
b) The learned trial magistrate disregarded all the open discrepancies in the evidence of the complainant, thereby occasioning an injustice on my part.
c) The trial court misdirected itself when it failed to critically analyze the entire evidence and realize that the inconsistencies could not sustain a conviction.
d) The sentence meted out here is illegal in its entirety.
4. The state opposed the appeal through M/s Elizabeth Kogos, learned counsel. She contended that the appeal lacked merit.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. The Constitution of Kenya is very clear on representation. Article 50 (2) (g) provides as follows:
Every accused 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;
7. On the 30th day of May 2022, the appellant applied to have the matter start de novo, for he had no advocate. Mr Akello, the prosecution counsel, opposed the application and informed the court as follows:
I oppose the application. No need to have an advocate. It will serve no difference. The application is an afterthought.
8. The objection was upheld.
9. It appears the prosecution counsel understood the appellant to be making an application to engage an advocate. The court however dwelt on the issue of starting the case de novo. If, however, it was unclear what he was seeking, the trial court had an obligation to elicit from him whether he was seeking her representation by an advocate. Unfortunately, he left it to the prosecution counsel to decide whether it was necessary. No party can abridge the Constitutional provision for any other party.
10. This conduct amounted to a mistrial. The proceedings are therefore a nullity. The conviction and the sentence are set aside. The appellant to be escorted to Rongo Magistrate’s Court within 14 days of this judgment for a retrial before another magistrate other than Hon. Oruo and R.K Langat. Should he be convicted on retrial, the time already served must be factored into the sentence.
Delivered and signed at Migori on this 23rd day of February 2026
2. The particulars of the offence are that on the 8th day of August 2021, at Nyang’aya village, Awendo sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of M.A.O, a child aged thirteen years.
3. The appellant was sentenced to serve twenty years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) The offence of herein was not proved.
b) The learned trial magistrate disregarded all the open discrepancies in the evidence of the complainant, thereby occasioning an injustice on my part.
c) The trial court misdirected itself when it failed to critically analyze the entire evidence and realize that the inconsistencies could not sustain a conviction.
d) The sentence meted out here is illegal in its entirety.
4. The state opposed the appeal through M/s Elizabeth Kogos, learned counsel. She contended that the appeal lacked merit.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. The Constitution of Kenya is very clear on representation. Article 50 (2) (g) provides as follows:
Every accused 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;
7. On the 30th day of May 2022, the appellant applied to have the matter start de novo, for he had no advocate. Mr Akello, the prosecution counsel, opposed the application and informed the court as follows:
I oppose the application. No need to have an advocate. It will serve no difference. The application is an afterthought.
8. The objection was upheld.
9. It appears the prosecution counsel understood the appellant to be making an application to engage an advocate. The court however dwelt on the issue of starting the case de novo. If, however, it was unclear what he was seeking, the trial court had an obligation to elicit from him whether he was seeking her representation by an advocate. Unfortunately, he left it to the prosecution counsel to decide whether it was necessary. No party can abridge the Constitutional provision for any other party.
10. This conduct amounted to a mistrial. The proceedings are therefore a nullity. The conviction and the sentence are set aside. The appellant to be escorted to Rongo Magistrate’s Court within 14 days of this judgment for a retrial before another magistrate other than Hon. Oruo and R.K Langat. Should he be convicted on retrial, the time already served must be factored into the sentence.
Delivered and signed at Migori on this 23rd day of February 2026