(Being an appeal from the original conviction and sentence by Hon.Ivy Wasike, Principal Magistrate, in Kilifi Chief Principal Magistrate’s Court Sexual Offence Case No. E108 of 2021 delivered on 8/1/2025)
1. The Appellant herein was convicted for 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 offence were that on diverse dates between 1 st January and 21 st November 2021 at (name withheld) area within Kilifi county he intentionally and unlawfully caused his penis to penetrate the vagina of P.S.R (herein referred to as the complainant), a child aged 12 years.
2. The Appellant was sentenced to serve 30 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal.
3. The grounds of appeal as per the Appellant`s amended grounds of appeal dated 21 st November 2024 are that:
(1) That the trial magistrate erred in law and fact in allowing the prosecution to deny him witness statements.
(2) That the trial magistrate erred in law and fact by denying the appellant legal representation.
(3) That the trial magistrate erred in law and fact in failing to find that the charge sheet was fatally defective.
(4) That the trial magistrate erred in law and fact in failing to find that the case was not proved beyond reasonable doubt.
(5) That the trial magistrate erred in law and fact by imposing a sentence that was beyond the maximum limit stipulated by the law.
Case for prosecution
4. The case for the prosecution was that the complainant was in 2021 aged 11 years. She was living with her mother PW1 and her step father, the appellant. They were sleeping in the same room. The complainant and her siblings were sleeping in one bed while her parents were sleeping on a separate bed in the room.
5. It was the evidence of the complainant (PW1) that sometimes in the month of October 2021 she was sleeping on her bed at night when the appellant went to her bed and threatened her with a knife. He then inserted his penis into her vagina. From that day he started to have sex with her at night at 3 am when her mother was asleep. He did so for two weeks. That on the third week he went to her bed and had sex with her. While he was moving away, he hit a bucket and her mother woke up. Her mother asked him what he was doing and he answered her rudely. Her mother went to her bed and checked her vagina. She asked her why it had cuts but she refused to tell her. She later disclosed to a friend that her father was defiling her. She then informed her mother about it. They reported the matter to the village elder and to the police. She was taken to hospital and examined.
6. The mother to the complainant PW2 testified that sometimes in 2021 she noted that the vagina of the complainant had cuts and bruises. She asked her the source but she refused to tell her. That one day in the month of October 2021 she was asleep at night when she heard something falling in the house. She woke up and saw the appellant standing beside the children`s bed. He was wiping his penis with a pair of pants. She asked him where he was coming from. He answered outside. She noted that the complainant was sleeping with her legs wide apart. She checked her vagina and saw it with a discharge of sperms. She asked the complainant about it and she answered that it was normal for her to have the discharge. She asked the appellant about it and he said that he had been masturbating. Later the complainant disclosed to her that the appellant had been penetrating her. She took her to hospital.
7. The complainant was seen at Kilifi county hospital and examined by one doctor Bernard Otieno who found her with a broken hymen but there were no injuries. The said doctor completed her P3 form and Post Rape Care form. Another doctor at the hospital examined her and assessed her age at 12 years.
8. The case was investigated by PC Tanui of Kijipwa police station who went on transfer and the police file was taken over by PC Jedidah Wanja PW4. During the hearing of the case in court, PC Wanja PW4 produced the statement of PC Tanui as exhibit, P.Exh.4. A doctor at Kilifi county hospital, Dr. Anderson Kaingu PW3 produced the Post Rape Care form, the P3 form and the age assessment report as exhibits, PExh.1 – 3 respectively.
Defence case
9. The appellant when placed to his defence stated in an unsworn statement that he left remand and his wife took him to the children`s office while claiming maintenance money. She later told him that the child had been taken to a rescue home. He later came to hear that the minor had been defiled. He looked for the minor and got her. The accused was jailed and the minor died. He was earlier on charged that he defiled the child. He denied doing so.
10. The appeal was disposed of by way of written submissions.
Appellant`s submissions
11. The Appellant submitted on the five grounds of appeal. On the first issue he submitted that the trial court failed to ensure that he was supplied with copies of witness statements during the hearing of the case. That when the matter came up for mention in court on 28/4/2022, the prosecution stated that they will supply him with copies of witness statements but they did not do so. It was submitted that the right to be provided with witness statements is one of the underogable rights to fair trial under Article 25(c) of the Constitution. That an accused person who is denied such a right is disadvantaged during the trial. That the trial court was aware that he was nor represented by an advocate yet the court did not ensure that he was served with the same. Reliance was placed in the case of Thomas Patrick Gilbert Cholmondeley v Republic (2008) eKLR where the court stated that for the purposes of a fair trial the prosecution is under duty to provide an accused person with copies of witness statements and other relevant documents.
12. The second ground of appeal is that the appellant was denied legal representation contrary to the provisions of Article 50(2) (g) of the Constitution. The Appellant faulted the trial court for failing to consider the severity of the charge and the sentence, the complexity of the case and the capacity of the Appellant to defend himself in the case. The Appellant in this respect relied on the holding in the case of David Njoroge Macharia v Republic, C.A CR. APP No. 497 of 2007 Nrb and Thomas Alugha Ndegwa v Republic C.A CR.App. No. 2 of 2014 at Nairobi.
13. The third ground of appeal is that the charge was defective as he was convicted for defilement under section 8(2) of the Sexual Offences Act which deals with defilement of children under the age of 11 years yet the particulars of the charge in his case stated that the victim was aged 12 years. That the offence of defiling a child of the age of 12 years is triable under section 8(1) as read with section 8(3) of the stated Act. That the two offences attract different sentences with the latter attracting a minimum sentence of 20 years. Therefore, that the trial court erred in convicting him under section 8(2) when the offence committed was under section 8(3) and there was no amendment of the charge.
14. It was further submitted that the sentence imposed on the Appellant was not compatible with the law.
Respondent`s submissions
15. The Respondent on the other hand submitted that the offence charged was proved beyond reasonable doubt. That the evidence of the complainant that the appellant penetrated her vagina was corroborated by the evidence of her mother and that of the medical officer who found the minor`s hymen broken. That the appellant was well known to the minor and he was identified as the perpetrator.
Analysis and determination
16. This being a first appeal, this court has a duty to revisit the evidence that was adduced before the trial court, re-evaluate and analyze it and come to its own conclusion while at the same time bearing in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record, See Okeno v R (1972) EA 32.
17. I have considered the grounds of appeal, the record of the trial court and the submissions tendered by the parties. The issues for determination are, first, whether the rights of the Appellant to fair trial were violated and if not, whether the charge against the Appellant was proved beyond reasonable doubt.
18. The Appellant submitted that the trial court violated his right to fair trial in that he was not provided with the prosecution witness statements in advance so as to enable him know the evidence the prosecution had against him so as to enable him prepare for his defence.
19. It was the submission by the Appellant that the prosecutor during plea taking informed the court that they were going to supply him with witness statements but they never did so. That he conducted the case without witness statements.
20. It was submitted that the right to be supplied with witness statements is an entitlement falling within the underogable right to a fair trial under Article 25(c) of the Constitution which is required to be enforced by the trial court.
21. Article 50(2)(c) and (j) of the Constitution of Kenya, 2010 provide as follows:
(2) Every accused person has the right to a fair trial, which includes the right-
(c) to have adequate time and facilities to prepare a defence;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.
22.I have perused the record of the trial court and noted that when the case came up for hearing on 28/4/2022 the court prosecutor indicated to the court that they would supply the appellant with witness statements. The appellant remarked that he did not have copies of witness statements and the case was adjourned to 21/7/2022. The issue in respect to the witness statements was not raised in the subsequent hearings by any of the parties.
23. It is the duty of the trial court in a criminal case to ensure that the stipulations of Article 50 (2) (c) and (j) of the constitution are complied with. In the case of Thomas Patrick Gilbert Cholmondeley v Republic (supra) the Court of Appeal was categorical that the prosecution is under duty to provide an accused person with copies of witness statements and other relevant documents. This is meant to enable the accused prepare for his defence. In the same vein, the same court in Munene v Republic [2018] KECA 186 (KLR) emphasized the right to be supplied with copies of witness statements and observed that:
“Dealing with the right to a fair trial under Article 50(2) (c) and (j) this Court said in Simon Githaka Malombe v R , Criminal Appeal No. 314 of 2010 that;
“…. Indeed, the availability of witnesses statements to the defense has always been a fundamental facet of this guarantee and avoids the spectre of trial by ambush especially in a criminal case. The High Court, sitting as a Constitutional Court had in the case of Juma v Republic [2007] EA 461 reasoned as follows, and we agree;
‘We hold that the state is obliged to provide an accused person with copies of witness statements and relevant documents. This is included in the package of giving and affording adequate facilities to a person charged with a criminal offence…’ ”
24. It is now established that once the issue of supply of witness statements has been brought to the attention of an accused person, the accused has an obligation to bring it to the attention of the court that he has not been supplied with the witness statements. The Court of Appeal in Manyeso v Republic [2023] KECA 827 (KLR) where the appellant was not supplied with witness statements as in this cased held that:
…. contrary to the appellant’s assertions, the record shows that the prosecution indicated that they would avail the witnessed statements and the appellant thereafter did not raise any concerns about not to being availed the said statement and participated in the trial and cross- examined the prosecution witnesses. We also note that this issue was not raised in his first appeal to the High Court.
25. The Supreme Court in the case of Khalid & 16 others v Attorney General & 2 others [2019] KESC 93 (KLR) affirmed the proposition that an accused person has an obligation to bring it to the attention of the court that he has not been supplied with the witness statements. Said the court:
90. Indeed, it is salutary practice for the trial court to satisfy itself that an accused person has all the reasonable facilities for his defence and the prosecution discloses all documents before commencement of trial. However, an accused person has an obligation to bring it to the attention of the court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. This minimum obligation on the accused person triggers the court’s duty to ensure the documents are supplied before commencement of the trial. We are persuaded by the holding of Ngugi J , in Republic v Francis Muniu Kariuki [2017] eKLR), where he aptly captured these duties and obligations. The Judge, inter alia stated:
“18, Our case law has now established without a doubt that it is the Prosecution’s duty to provide the witness statements to an accused person and the Trial Court’s duty to ensure compliance with the constitutional requirement. article 50(2)(c) and (j) are quite clear and the Courts have said as much: the right to adequate time and facilities for the preparation of one’s defence includes the right to receive beforehand the evidence that the prosecution intends to adduce against the accused. At a minimum, this right includes the right to receive a copy of the charge sheet, witness’ statements and copies of any documents which will be relied on at the trial..
23.However, an accused person has an obligation to bring it to the attention of the court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. This minimum obligation on the accused person triggers the court’s duty to ensure the documents are supplied before commencement of the trial.”
26. The Court of Appeal in Ogunda v Republic [2024] KECA 131 (KLR) , similarly said that:
…an accused person has a minimal obligation to bring it to the attention of the court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. It is this minimum duty on the part of an accused person which triggers the court’s duty to ensure that the documents are supplied before the trial commences. An accused person cannot fold his hands, string the court along only for him to strategically raise as a point on appeal that he was not supplied with witness statements.
27. In the present case, the prosecution indicated that they were going to supply the appellant with copies of witness statements. The appellant did not raise the issue in the subsequent hearings but instead proceeded with the hearing without any complaint. The fact that he did not raise the issue led to the conclusion that he either received the witness statements or failed to fulfill his minimal obligation to inform the court that he had not been given the statements. In the circumstances, there was no violation of his right to fair trial.
28. The other preliminary issue is that the trial court violated the rights of the appellant by denying him legal representation as stipulated under Article 50(2)(g) of the constitution that provides that:
(2) 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.
(h) to have an advocate assigned to the accused person by the state at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.
29. The record of the trial court does not indicate whether the appellant was informed of his right to be represented by an advocate. In the case of JOO V Republic (2021) eKLR , Wendoh J. stated that it is the trial court which is required to inform the accused of that right. The court further held that violation of Article 50(2)(g) rendered the trial a nullity.
30. Article 50(2) (h) of the Constitution requires an accused person to be assigned an advocate if substantial injustice would otherwise occur. The appellant submitted that having regard to severity of the charge that he was facing, the attendant penalty and his capacity to defend himself, the trial court had an onus to direct that he be represented by an advocate at state expense.
31. The right to legal representation is one of those rights that cannot be limited as provided by Article 25 of the Constitution of Kenya 2010. The Supreme Court in Petition No. 5 of 2015 Republic -vs- Karisa Chengo & 2 Others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows: -
the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more.
32. The Legal Aid Act, No. 6 of 2016 provides at section 43 that:
43. Duties of the court
(1) A court before which an unrepresented accused person is presented shall—
(a) promptly inform the accused of his or her right to legal representation;
(b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and
(c) inform the Service to provide legal aid to the accused person.
(1A) In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—
(a) the severity of the charge and sentence;
(b) the complexity of the case; and
(c) the capacity of the accused to defend themselves.
33. The Court of Appeal in the case of Manyeso v Republic [2023] KECA 827 (KLR) emphasize the right to legal representation and stated as follows:
This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it.
34. I have perused the proceedings of the trial court and noted that the trial court did not inform the Appellant of his right to have an advocate assigned to him in view of the serious charge that he was facing. Neither did the court consider assigning him an advocate.
35. The Appellant was facing a serious charge that could lead to him being sentenced to not less than 20 years in prison if he was found guilty. Considering the severity of the charge and the sentence that the appellant was facing, he was likely to suffer substantial injustice by failure of the court to consider assigning him legal representation at the expense of the state.
36. Consequently, it is my finding that the trial court violated the Appellant`s rights to fair hearing in failing to inform him of his right legal representation and failing to consider assigning him an advocate to represent him in the case at the expense of the state. This amounted to a miscarriage of justice. The failure to comply with the dictates of the constitution rendered the trial a nullity. There is no need to me to consider the other grounds of appeal in view of my finding that the trial was a nullity.
37. Having come to the above conclusion, the question is whether I should order a re-trial. The guiding principles on whether or not to order a retrial were stated by the East Africa Court of Appeal in the case of Manji v Republic [1966] EA 343 to be as follows:
“In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person.”
38. In Mwangi v Republic [1983] KLR 522 the Court of Appeal held that:
“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”
39. I have reviewed the evidence that was adduced before the trial Court and it is my view that it raises the possibility of a conviction. The prosecution witnesses are family members and the other witnesses are public officers who may not be difficult to secure. The interests of justice in the case calls for a retrial.
40. I accordingly allow the appeal, quash the conviction and sentence of the Appellant by the trial Court and order that the Appellant be retried of the offence by any other magistrate of competent jurisdiction other than Hon. Ivy Wasike. The trial court to consider assigning the appellant an advocate to represent him in the case.
41. In view of the foregoing, I direct that the appellant be presented before the Kilifi Chief Magistrate`s Court for fresh plea in a week`s time. The appellant shall in the time being remain in prison remand custody.
Orders accordingly.
Delivered, dated and signed in open court at GARSEN this 18 th September 2026
In the presence of:
Mr. Oluoch HB for Republic
Appellant – Appearing virtually at GK Prison Shimo-la-Tewa
Court Assistant – Ms Rahma
1. The Appellant herein was convicted for 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 offence were that on diverse dates between 1 st January and 21 st November 2021 at (name withheld) area within Kilifi county he intentionally and unlawfully caused his penis to penetrate the vagina of P.S.R (herein referred to as the complainant), a child aged 12 years.
2. The Appellant was sentenced to serve 30 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal.
3. The grounds of appeal as per the Appellant`s amended grounds of appeal dated 21 st November 2024 are that:
(1) That the trial magistrate erred in law and fact in allowing the prosecution to deny him witness statements.
(2) That the trial magistrate erred in law and fact by denying the appellant legal representation.
(3) That the trial magistrate erred in law and fact in failing to find that the charge sheet was fatally defective.
(4) That the trial magistrate erred in law and fact in failing to find that the case was not proved beyond reasonable doubt.
(5) That the trial magistrate erred in law and fact by imposing a sentence that was beyond the maximum limit stipulated by the law.
Case for prosecution
4. The case for the prosecution was that the complainant was in 2021 aged 11 years. She was living with her mother PW1 and her step father, the appellant. They were sleeping in the same room. The complainant and her siblings were sleeping in one bed while her parents were sleeping on a separate bed in the room.
5. It was the evidence of the complainant (PW1) that sometimes in the month of October 2021 she was sleeping on her bed at night when the appellant went to her bed and threatened her with a knife. He then inserted his penis into her vagina. From that day he started to have sex with her at night at 3 am when her mother was asleep. He did so for two weeks. That on the third week he went to her bed and had sex with her. While he was moving away, he hit a bucket and her mother woke up. Her mother asked him what he was doing and he answered her rudely. Her mother went to her bed and checked her vagina. She asked her why it had cuts but she refused to tell her. She later disclosed to a friend that her father was defiling her. She then informed her mother about it. They reported the matter to the village elder and to the police. She was taken to hospital and examined.
6. The mother to the complainant PW2 testified that sometimes in 2021 she noted that the vagina of the complainant had cuts and bruises. She asked her the source but she refused to tell her. That one day in the month of October 2021 she was asleep at night when she heard something falling in the house. She woke up and saw the appellant standing beside the children`s bed. He was wiping his penis with a pair of pants. She asked him where he was coming from. He answered outside. She noted that the complainant was sleeping with her legs wide apart. She checked her vagina and saw it with a discharge of sperms. She asked the complainant about it and she answered that it was normal for her to have the discharge. She asked the appellant about it and he said that he had been masturbating. Later the complainant disclosed to her that the appellant had been penetrating her. She took her to hospital.
7. The complainant was seen at Kilifi county hospital and examined by one doctor Bernard Otieno who found her with a broken hymen but there were no injuries. The said doctor completed her P3 form and Post Rape Care form. Another doctor at the hospital examined her and assessed her age at 12 years.
8. The case was investigated by PC Tanui of Kijipwa police station who went on transfer and the police file was taken over by PC Jedidah Wanja PW4. During the hearing of the case in court, PC Wanja PW4 produced the statement of PC Tanui as exhibit, P.Exh.4. A doctor at Kilifi county hospital, Dr. Anderson Kaingu PW3 produced the Post Rape Care form, the P3 form and the age assessment report as exhibits, PExh.1 – 3 respectively.
Defence case
9. The appellant when placed to his defence stated in an unsworn statement that he left remand and his wife took him to the children`s office while claiming maintenance money. She later told him that the child had been taken to a rescue home. He later came to hear that the minor had been defiled. He looked for the minor and got her. The accused was jailed and the minor died. He was earlier on charged that he defiled the child. He denied doing so.
10. The appeal was disposed of by way of written submissions.
Appellant`s submissions
11. The Appellant submitted on the five grounds of appeal. On the first issue he submitted that the trial court failed to ensure that he was supplied with copies of witness statements during the hearing of the case. That when the matter came up for mention in court on 28/4/2022, the prosecution stated that they will supply him with copies of witness statements but they did not do so. It was submitted that the right to be provided with witness statements is one of the underogable rights to fair trial under Article 25(c) of the Constitution. That an accused person who is denied such a right is disadvantaged during the trial. That the trial court was aware that he was nor represented by an advocate yet the court did not ensure that he was served with the same. Reliance was placed in the case of Thomas Patrick Gilbert Cholmondeley v Republic (2008) eKLR where the court stated that for the purposes of a fair trial the prosecution is under duty to provide an accused person with copies of witness statements and other relevant documents.
12. The second ground of appeal is that the appellant was denied legal representation contrary to the provisions of Article 50(2) (g) of the Constitution. The Appellant faulted the trial court for failing to consider the severity of the charge and the sentence, the complexity of the case and the capacity of the Appellant to defend himself in the case. The Appellant in this respect relied on the holding in the case of David Njoroge Macharia v Republic, C.A CR. APP No. 497 of 2007 Nrb and Thomas Alugha Ndegwa v Republic C.A CR.App. No. 2 of 2014 at Nairobi.
13. The third ground of appeal is that the charge was defective as he was convicted for defilement under section 8(2) of the Sexual Offences Act which deals with defilement of children under the age of 11 years yet the particulars of the charge in his case stated that the victim was aged 12 years. That the offence of defiling a child of the age of 12 years is triable under section 8(1) as read with section 8(3) of the stated Act. That the two offences attract different sentences with the latter attracting a minimum sentence of 20 years. Therefore, that the trial court erred in convicting him under section 8(2) when the offence committed was under section 8(3) and there was no amendment of the charge.
14. It was further submitted that the sentence imposed on the Appellant was not compatible with the law.
Respondent`s submissions
15. The Respondent on the other hand submitted that the offence charged was proved beyond reasonable doubt. That the evidence of the complainant that the appellant penetrated her vagina was corroborated by the evidence of her mother and that of the medical officer who found the minor`s hymen broken. That the appellant was well known to the minor and he was identified as the perpetrator.
Analysis and determination
16. This being a first appeal, this court has a duty to revisit the evidence that was adduced before the trial court, re-evaluate and analyze it and come to its own conclusion while at the same time bearing in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record, See Okeno v R (1972) EA 32.
17. I have considered the grounds of appeal, the record of the trial court and the submissions tendered by the parties. The issues for determination are, first, whether the rights of the Appellant to fair trial were violated and if not, whether the charge against the Appellant was proved beyond reasonable doubt.
18. The Appellant submitted that the trial court violated his right to fair trial in that he was not provided with the prosecution witness statements in advance so as to enable him know the evidence the prosecution had against him so as to enable him prepare for his defence.
19. It was the submission by the Appellant that the prosecutor during plea taking informed the court that they were going to supply him with witness statements but they never did so. That he conducted the case without witness statements.
20. It was submitted that the right to be supplied with witness statements is an entitlement falling within the underogable right to a fair trial under Article 25(c) of the Constitution which is required to be enforced by the trial court.
21. Article 50(2)(c) and (j) of the Constitution of Kenya, 2010 provide as follows:
(2) Every accused person has the right to a fair trial, which includes the right-
(c) to have adequate time and facilities to prepare a defence;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.
22.I have perused the record of the trial court and noted that when the case came up for hearing on 28/4/2022 the court prosecutor indicated to the court that they would supply the appellant with witness statements. The appellant remarked that he did not have copies of witness statements and the case was adjourned to 21/7/2022. The issue in respect to the witness statements was not raised in the subsequent hearings by any of the parties.
23. It is the duty of the trial court in a criminal case to ensure that the stipulations of Article 50 (2) (c) and (j) of the constitution are complied with. In the case of Thomas Patrick Gilbert Cholmondeley v Republic (supra) the Court of Appeal was categorical that the prosecution is under duty to provide an accused person with copies of witness statements and other relevant documents. This is meant to enable the accused prepare for his defence. In the same vein, the same court in Munene v Republic [2018] KECA 186 (KLR) emphasized the right to be supplied with copies of witness statements and observed that:
“Dealing with the right to a fair trial under Article 50(2) (c) and (j) this Court said in Simon Githaka Malombe v R , Criminal Appeal No. 314 of 2010 that;
“…. Indeed, the availability of witnesses statements to the defense has always been a fundamental facet of this guarantee and avoids the spectre of trial by ambush especially in a criminal case. The High Court, sitting as a Constitutional Court had in the case of Juma v Republic [2007] EA 461 reasoned as follows, and we agree;
‘We hold that the state is obliged to provide an accused person with copies of witness statements and relevant documents. This is included in the package of giving and affording adequate facilities to a person charged with a criminal offence…’ ”
24. It is now established that once the issue of supply of witness statements has been brought to the attention of an accused person, the accused has an obligation to bring it to the attention of the court that he has not been supplied with the witness statements. The Court of Appeal in Manyeso v Republic [2023] KECA 827 (KLR) where the appellant was not supplied with witness statements as in this cased held that:
…. contrary to the appellant’s assertions, the record shows that the prosecution indicated that they would avail the witnessed statements and the appellant thereafter did not raise any concerns about not to being availed the said statement and participated in the trial and cross- examined the prosecution witnesses. We also note that this issue was not raised in his first appeal to the High Court.
25. The Supreme Court in the case of Khalid & 16 others v Attorney General & 2 others [2019] KESC 93 (KLR) affirmed the proposition that an accused person has an obligation to bring it to the attention of the court that he has not been supplied with the witness statements. Said the court:
90. Indeed, it is salutary practice for the trial court to satisfy itself that an accused person has all the reasonable facilities for his defence and the prosecution discloses all documents before commencement of trial. However, an accused person has an obligation to bring it to the attention of the court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. This minimum obligation on the accused person triggers the court’s duty to ensure the documents are supplied before commencement of the trial. We are persuaded by the holding of Ngugi J , in Republic v Francis Muniu Kariuki [2017] eKLR), where he aptly captured these duties and obligations. The Judge, inter alia stated:
“18, Our case law has now established without a doubt that it is the Prosecution’s duty to provide the witness statements to an accused person and the Trial Court’s duty to ensure compliance with the constitutional requirement. article 50(2)(c) and (j) are quite clear and the Courts have said as much: the right to adequate time and facilities for the preparation of one’s defence includes the right to receive beforehand the evidence that the prosecution intends to adduce against the accused. At a minimum, this right includes the right to receive a copy of the charge sheet, witness’ statements and copies of any documents which will be relied on at the trial..
23.However, an accused person has an obligation to bring it to the attention of the court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. This minimum obligation on the accused person triggers the court’s duty to ensure the documents are supplied before commencement of the trial.”
26. The Court of Appeal in Ogunda v Republic [2024] KECA 131 (KLR) , similarly said that:
…an accused person has a minimal obligation to bring it to the attention of the court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. It is this minimum duty on the part of an accused person which triggers the court’s duty to ensure that the documents are supplied before the trial commences. An accused person cannot fold his hands, string the court along only for him to strategically raise as a point on appeal that he was not supplied with witness statements.
27. In the present case, the prosecution indicated that they were going to supply the appellant with copies of witness statements. The appellant did not raise the issue in the subsequent hearings but instead proceeded with the hearing without any complaint. The fact that he did not raise the issue led to the conclusion that he either received the witness statements or failed to fulfill his minimal obligation to inform the court that he had not been given the statements. In the circumstances, there was no violation of his right to fair trial.
28. The other preliminary issue is that the trial court violated the rights of the appellant by denying him legal representation as stipulated under Article 50(2)(g) of the constitution that provides that:
(2) 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.
(h) to have an advocate assigned to the accused person by the state at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.
29. The record of the trial court does not indicate whether the appellant was informed of his right to be represented by an advocate. In the case of JOO V Republic (2021) eKLR , Wendoh J. stated that it is the trial court which is required to inform the accused of that right. The court further held that violation of Article 50(2)(g) rendered the trial a nullity.
30. Article 50(2) (h) of the Constitution requires an accused person to be assigned an advocate if substantial injustice would otherwise occur. The appellant submitted that having regard to severity of the charge that he was facing, the attendant penalty and his capacity to defend himself, the trial court had an onus to direct that he be represented by an advocate at state expense.
31. The right to legal representation is one of those rights that cannot be limited as provided by Article 25 of the Constitution of Kenya 2010. The Supreme Court in Petition No. 5 of 2015 Republic -vs- Karisa Chengo & 2 Others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows: -
the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more.
32. The Legal Aid Act, No. 6 of 2016 provides at section 43 that:
43. Duties of the court
(1) A court before which an unrepresented accused person is presented shall—
(a) promptly inform the accused of his or her right to legal representation;
(b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and
(c) inform the Service to provide legal aid to the accused person.
(1A) In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—
(a) the severity of the charge and sentence;
(b) the complexity of the case; and
(c) the capacity of the accused to defend themselves.
33. The Court of Appeal in the case of Manyeso v Republic [2023] KECA 827 (KLR) emphasize the right to legal representation and stated as follows:
This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it.
34. I have perused the proceedings of the trial court and noted that the trial court did not inform the Appellant of his right to have an advocate assigned to him in view of the serious charge that he was facing. Neither did the court consider assigning him an advocate.
35. The Appellant was facing a serious charge that could lead to him being sentenced to not less than 20 years in prison if he was found guilty. Considering the severity of the charge and the sentence that the appellant was facing, he was likely to suffer substantial injustice by failure of the court to consider assigning him legal representation at the expense of the state.
36. Consequently, it is my finding that the trial court violated the Appellant`s rights to fair hearing in failing to inform him of his right legal representation and failing to consider assigning him an advocate to represent him in the case at the expense of the state. This amounted to a miscarriage of justice. The failure to comply with the dictates of the constitution rendered the trial a nullity. There is no need to me to consider the other grounds of appeal in view of my finding that the trial was a nullity.
37. Having come to the above conclusion, the question is whether I should order a re-trial. The guiding principles on whether or not to order a retrial were stated by the East Africa Court of Appeal in the case of Manji v Republic [1966] EA 343 to be as follows:
“In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person.”
38. In Mwangi v Republic [1983] KLR 522 the Court of Appeal held that:
“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.”
39. I have reviewed the evidence that was adduced before the trial Court and it is my view that it raises the possibility of a conviction. The prosecution witnesses are family members and the other witnesses are public officers who may not be difficult to secure. The interests of justice in the case calls for a retrial.
40. I accordingly allow the appeal, quash the conviction and sentence of the Appellant by the trial Court and order that the Appellant be retried of the offence by any other magistrate of competent jurisdiction other than Hon. Ivy Wasike. The trial court to consider assigning the appellant an advocate to represent him in the case.
41. In view of the foregoing, I direct that the appellant be presented before the Kilifi Chief Magistrate`s Court for fresh plea in a week`s time. The appellant shall in the time being remain in prison remand custody.
Orders accordingly.
Delivered, dated and signed in open court at GARSEN this 18 th September 2026
In the presence of:
Mr. Oluoch HB for Republic
Appellant – Appearing virtually at GK Prison Shimo-la-Tewa
Court Assistant – Ms Rahma