(APPEAL FROM JUDGMENT OF Hon P.C Biwott SPM in SPM in Sexual Offence case no. 103 of 2024 dated 13.9.24
1. Wilcliffe Victor Onyancha the appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8 (4) of the Sexual offences Act in the lower court. The particulars s of the charge are that on diverse dates between 6th April 2024 to 10th April 2024 at Kiiru sub-location in Kenyenya Sub county within Kisiis County he intentionally and unlawfully caused his penis to penetrate the vagina of SMM a child aged 16 years .
2. Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual offences Act . The particulars of the alternative charge are that on diverse dates between 6th April 2024 to 10th April 2024 at Kiiru sub-location in Kenyenya Sub county within Kisiis County he intentionally and unlawfully touched the vagina of SMM a child aged 16 years .
3. The appellant pleaded not guilty and the case went to full trial and he was convicted of the main charge and sentenced to served 15 years imprisonment.
4. The appellant filed the instant appeal on the following grounds :
a. The learned magistrate erred in law and fact by relying on misleading evidence produced by the investigating officer on 14th June 2024 and proceeding with the matter contrary to earlier orders directing the case to start de novo.
b. The learned magistrate erred in law and fact by vacating the order of 31 st January 2023 under Section 200 of the Criminal Procedure Code and proceeding with the matter from where it had reached, against the Appellant's wishes.
c. The learned magistrate erred in law and fact by relying on uncorroborated and contradictory evidence from the victim, doctor, and investigating officer, including inconsistent dates of the alleged defilement.
d. The learned magistrate erred in law and fact by failing to summon critical witnesses, including clan elders mentioned in the testimony, whose evidence would have been crucial to the case.
e. The learned magistrate erred in law and fact by finding that the witnesses could not be traced, thus vacating the order for the case to start de novo.
5. This is an appellate court who duty is to re-evaluate the entire evidence on record bearing in mind that it neither saw nor heard the witnesses during their testimony in court. In the case of Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal held that ;
An Appellant on a first appeal 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.
The appellant submitted that the court misapplied Section 200CPC by vacation the previous orders that the matter proceeds novo and then directing that it proceeds from where it had stopped. He faulted the court for violating the rights of appellant under Article 50 (2) of the Constitution.
Counsel cited Section Section 200(3) of the Criminal Procedure Code which provides that:-
"(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of the right".
Counsel relied on the following cases , Ndegwa v Republic [19851 eKLR, the Court of Appeal held:-
"No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system ofour legal administration. "
In Abdi Adan Mohamed v. Republic [20171 eKLR, the Court of Appeal held:-
"As much as it is practically possible it is highly desirable that the trial magistrate orjudge must hear the case to conclusion and ultimately render judgment as it is important for the final arbiter to be in a position to weigh the evidence taken together with his or her observation of the demeanor of witnesses. This was succinctly explained by this Court in Ndegwa v. R (1985) KLR 535 where Madan, (as he then was) Kneller and Nyarangi, J.J.A said that:-
'It could also be argued that the statutory and time honored formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanor and credibility of witnesses. It has been and will be so in other cases that willfollow. .. . '
In other words Section 200, as was emphasized in Ndegwa (supra) will be resorted sparingly and only in cases where the exigencies of the case dictates.
It must, however be remembered that it is the demand by the accused persons to re-summon witnesses, in circumstances that make such demands impossible to grant, particularly in situations where the witnesses cannot be traced or are confirmed dead that has been the singlemost challenge to trial courts. To ameliorate this, some of the considerations developed through practice to be borne in mind before invoking Section 200 include, whether it is convenient to commence the trial de novo, how far has the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused. See Joseph Kamau Gichuki v. R CR. Appeal No. 523 of 2010, cited in Nyabutu & Another v. R, (2009) KLR 409, where the Court stressed that;
"By dint of section 200(1) (b) of the Criminal Procedure Code a succeeding judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely but will defeat the ends ofjustice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial. See Ndegwa v. R. (1985) KLR 535".
Appellant also submitted that the trial court erred in relying on contradictory uncorroborated evidence and that the court also failed to summons crucial witnesses . The court was also faulted for failure to adhere to the judiciary sentencing policy in meting out the sentence . The trial magistrate ought to have also considered the provisions of the Judiciary sentencing policy Guidelines. It would have been important for the trial magistrate to call for a pre-sentence report and get objective and reliable information about the offender and the community to assist court in reaching the most appropriate sentence (see policy 22. 12).
The sentencing policy at paragraph 22.12 states that:
"To pass a just sentence, it is pertinent to receive and consider relevant information. The court should, as a matter of course, request for pre-sentencing report where a person is convicted of a felony as well as in cases where the court is considering a non-custodial sentence. In respect to children in conflict with the law, social inquiry reports should be requestedfor as a matter of course. Whilst the recommendations of pre-sentence reports are not binding, the court should give reasons for departing from the recommendations. '
At paragraph 22.19 and 22.20 the policy notes that;
"Some offenders are not represented by advocates; many of them fail to understand what is required of them in terms of mitigation. In many cases, they fail to provide information that impact on the sentence, opting to remain silent or giving irrelevant information. The policy further proceeds and states the court should guide the offender on what is required of him or her at this stage"
Finally at 23.1 the sentencing policy provides that;
"The court should schedule a hearing in which it receives submission 's that would impact on the sentence. Whilst pertinent information id typically contained in the reports, the hearing provides the court with the opportunity to examine the information and seek clarity on all the issues.
The trial court after convicting the appellant summarily proceeded to sentence hearing and melted out the sentence of 15 years. It is clear from the above that, while he was within law to do so, the trial Magistrate did not fully consider the impact of the above sentencing policies which would have guided him to seek pre-sentence report and also allow the appellant to mitigate in a better manner. This is a clear misdirection which justifies the interference of the sentence melted out.
In the case R Vs Scott (2005) NSWCCA 152 Howle J Grove & Baar JJ then stated
"There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and then must be a reasonable proportionately between the sentence passed in the circumstance of the crime committed...one of the purpose of punishment is to ensure that the offender is adequately punished a further purpose of punishment is to denounce the conduct of the offender. "
The Appellant was unrepresented during the trial. The trial magistrate failed to sufficiently guide the Appellant on his right to legal representation, as required under Article 50(2) (h) of the Constitution. This failure resulted in procedural unfairness and a miscarriage of justice.
The sentence of fifteen (15) years is manifestly excessive, considering the Appellant's lack of representation and the deficiencies in the prosecution's case. The Court of Appeal in Dismas Wafula Kilwake v. Republic 120181 eKLR held that mandatory minimum sentences in the Sexual Offences Act are unconstitutional as they deny courts discretion in sentencing.
The appellant was not guided on a pre-sentence report prepared to his detriment and in violation to his right to fair hearing as provided for under Article 50(2) of the Constitution of kenya 2010.The trial magistrate was aware of the recent jurisprudential development brought by the decision of In Maingi & 5 others Vs Director of Public Prosecution & Another (Petition No El 17 of 2021) (2022) KEHC 13118 (KLR) and more particularly in In Maingi & 5 others Vs Director of Public Prosecution & Another (Petition No El 17 of 2021) (2022) KEHC 13 118 (KLR)
The state submitted that the trial magistrate properly applied Section 200 CPC as compliant could not be traced as evidenced by the proceedings as the complainant could not be found . Counsel cited the decision of the Court of Appeal in JOSEPH KAMAU GICHUKI VS REPUBLIC Criminal Appeal No. 523 of 2010 (2013) eKLR.
Prosecution submitted that all the ingredients of the offence had been proved beyond any reasonable doubt.
It was submitted that there were no inconsistencies in the dates of the alleged offence or material inconsistencies in the by the prosecution. Counsel cited the decision of the Court of Appeal in Richard Munene Vs
Republic [20181 eKLR
On the allegation that the trial court erred in failing to summon critical witnesses including the clan elders it was submitted that under Section 143 of Evidence Act no particular number of witnesses is required for the proof of any fact and the prosecution is not obliged to call a superfluity of witnesses. He relied on the decision of Court of Appeal in the case of Richard Munene Vs Republic [20181 eKLR
On whether the sentence was harsh , it was submitted that the appellant was charged under Section 8(4) of the Sexual Offences Act which prescribes a minimum sentence of 15 imprisonment for the offence and thus the point was not supported by the law.
The state cited the Supreme Court decision in Republic v Mwangi; Initiative for Strategic
Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [20241 KESC 34 (KLR) (12 July 2024) in which the court held that the court has a duty to impose the sentences under the sexual offences Act to the letter as per the intention of the legistlature .
On legal representation it was submitted that the appellant was well guided on his right to legal representation from the proceedings of 19th April 2022 the court clearly informed the accused of his right to legal representation under Article 50(2)(g) of the Constitution.
6. I have carefully re-evaluated the entire evidence on record and the submissions .
Issues for determination
The issues arising for determination are:
i. Whether appellant was informed on his right to counsel.
ii. Whether the trial court erred in reviewing his own directions for de novo hearing and substituting the same with directrions that hearing to procced form where it had stopped. .
iii. Whether appellant’s rights to fair trial were violated by the said review of directions under section 200 CPC and if so
iv. Whether the court should order a retrial of this case.
Analysis and Determination
7. On whether appellant was informed of his right to counsel , he pleaded that the court for not informing him of this right .Prosecution submitted that he was informed of this right. Upon perusal of the court proceedings of 19.4.22 indicate that the appellant was promptly informed of his right to counsel are required by Article 50 (2) (h) of the Constitution of Kenya. The ground therefore does not hold .
8. Appellant also faulted the court for directing that the case starts de novo and changing its mind and directing that the matter proceeds form where it had stopped . on 31.10.23 Hon Biwott noted that the trial magistrate Was on transfer and directed that the case starts de novo upon appellant being given a chance to elect how to proceed. The matter came up several y for hearing but witnesses did not attend court . Finally on 14.6.24 witnesses were absent again and the prosecutor asked the court to go back and review the orders dated 31.1.23 and proceed from where the matter has reached .The appellant on his part asked the court to close the case in the absence of the witnesses . the court allowed the application. Prosecution submitted that the court was right to review its own orders an allow the case to proceed from where it had stopped as complainant . Generally, Accused persons have a right to recall of witnesses under Section 200 CPC unless the witnesses cannot be found. Complainant’s mother appeared in court with the investigating officer on 14.6.25 and the officer sought that the mother explains the whereabouts of compliant but she was not given a chance to do so . As held in the cited In Abdi Adan Mohamed v. Republic [20171 eKLR, case Section 200 CPC should be applied sparingly to avoid miscarriage of justice . At the time the prosecution agreed to de novo hearing they must have been sure of availability of complainant and other witnesses .By 14.6.24 she was already an adult. The investigating officer did not state the efforts she made to trace her. I agree with defence counsel that appellant was prejudiced by the order to start the case de novo as it had already been directed that the matter proceeds form where it had stopped . The appellant in his mind was prepared for De novo hearing and not proceeding from where the case had stopped . In any event the court had no jurisdiction to review the said directions once made as it is a preserve of the High court , The proceedings on which the appellant was convicted are thus a nullity . The right of appellant to fair hearing under Article 50 (2) of the Constitution was thus violated. I declare the said proceedings to be a mistrial
9. On whether this court should order a retrial, in the case of Muiruri v Republic (2003) KLR, 552 the court held that a retrial would be ordered where the interests of justice dictate as much and if it is unlikely to cause injustice to the applicant. In addition, in the case of Diriye v Republic (Criminal Appeal 115 of 2020) [2022] KECA 24 (KLR) (4 February 2022) (Judgment), the Court of Appeal held that whether a retrial would be ordered will depend on whether the proceedings were illegal or defective. In that case, the plea taking process was found to be flawed and the Court of Appeal ordered for a retrial. I am guided by the said decision and find that the t case was initiated in the year 2022 and it took 3 years for the court to conclude the matter though appellant was also partly to blame for the delay but prosecution was majorly to blame due to absence of witnesses . The appellant served a sentence for defective proceedings . Even if this court orders a retrial there is no guarantee that PW1 who is the star witness will be availed given the history of the matter . Re-trial will therefore prejudice the appellant in the circumstances . I proceeded to acquit the appellant under Section 215 CPC . Appellant be set free unless otherwise lawfully held .
1. Wilcliffe Victor Onyancha the appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8 (4) of the Sexual offences Act in the lower court. The particulars s of the charge are that on diverse dates between 6th April 2024 to 10th April 2024 at Kiiru sub-location in Kenyenya Sub county within Kisiis County he intentionally and unlawfully caused his penis to penetrate the vagina of SMM a child aged 16 years .
2. Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual offences Act . The particulars of the alternative charge are that on diverse dates between 6th April 2024 to 10th April 2024 at Kiiru sub-location in Kenyenya Sub county within Kisiis County he intentionally and unlawfully touched the vagina of SMM a child aged 16 years .
3. The appellant pleaded not guilty and the case went to full trial and he was convicted of the main charge and sentenced to served 15 years imprisonment.
4. The appellant filed the instant appeal on the following grounds :
a. The learned magistrate erred in law and fact by relying on misleading evidence produced by the investigating officer on 14th June 2024 and proceeding with the matter contrary to earlier orders directing the case to start de novo.
b. The learned magistrate erred in law and fact by vacating the order of 31 st January 2023 under Section 200 of the Criminal Procedure Code and proceeding with the matter from where it had reached, against the Appellant's wishes.
c. The learned magistrate erred in law and fact by relying on uncorroborated and contradictory evidence from the victim, doctor, and investigating officer, including inconsistent dates of the alleged defilement.
d. The learned magistrate erred in law and fact by failing to summon critical witnesses, including clan elders mentioned in the testimony, whose evidence would have been crucial to the case.
e. The learned magistrate erred in law and fact by finding that the witnesses could not be traced, thus vacating the order for the case to start de novo.
5. This is an appellate court who duty is to re-evaluate the entire evidence on record bearing in mind that it neither saw nor heard the witnesses during their testimony in court. In the case of Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal held that ;
An Appellant on a first appeal 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.
The appellant submitted that the court misapplied Section 200CPC by vacation the previous orders that the matter proceeds novo and then directing that it proceeds from where it had stopped. He faulted the court for violating the rights of appellant under Article 50 (2) of the Constitution.
Counsel cited Section Section 200(3) of the Criminal Procedure Code which provides that:-
"(3) Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of the right".
Counsel relied on the following cases , Ndegwa v Republic [19851 eKLR, the Court of Appeal held:-
"No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system ofour legal administration. "
In Abdi Adan Mohamed v. Republic [20171 eKLR, the Court of Appeal held:-
"As much as it is practically possible it is highly desirable that the trial magistrate orjudge must hear the case to conclusion and ultimately render judgment as it is important for the final arbiter to be in a position to weigh the evidence taken together with his or her observation of the demeanor of witnesses. This was succinctly explained by this Court in Ndegwa v. R (1985) KLR 535 where Madan, (as he then was) Kneller and Nyarangi, J.J.A said that:-
'It could also be argued that the statutory and time honored formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanor and credibility of witnesses. It has been and will be so in other cases that willfollow. .. . '
In other words Section 200, as was emphasized in Ndegwa (supra) will be resorted sparingly and only in cases where the exigencies of the case dictates.
It must, however be remembered that it is the demand by the accused persons to re-summon witnesses, in circumstances that make such demands impossible to grant, particularly in situations where the witnesses cannot be traced or are confirmed dead that has been the singlemost challenge to trial courts. To ameliorate this, some of the considerations developed through practice to be borne in mind before invoking Section 200 include, whether it is convenient to commence the trial de novo, how far has the trial reached, availability of witnesses who had already testified, possible loss of memory by the witnesses, the time that had lapsed since the commencement of the trial and the prejudice likely to be suffered by either the prosecution or the accused. See Joseph Kamau Gichuki v. R CR. Appeal No. 523 of 2010, cited in Nyabutu & Another v. R, (2009) KLR 409, where the Court stressed that;
"By dint of section 200(1) (b) of the Criminal Procedure Code a succeeding judge may act on the evidence recorded wholly by his predecessor. However, Section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstances, not only are likely but will defeat the ends ofjustice if a succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial. See Ndegwa v. R. (1985) KLR 535".
Appellant also submitted that the trial court erred in relying on contradictory uncorroborated evidence and that the court also failed to summons crucial witnesses . The court was also faulted for failure to adhere to the judiciary sentencing policy in meting out the sentence . The trial magistrate ought to have also considered the provisions of the Judiciary sentencing policy Guidelines. It would have been important for the trial magistrate to call for a pre-sentence report and get objective and reliable information about the offender and the community to assist court in reaching the most appropriate sentence (see policy 22. 12).
The sentencing policy at paragraph 22.12 states that:
"To pass a just sentence, it is pertinent to receive and consider relevant information. The court should, as a matter of course, request for pre-sentencing report where a person is convicted of a felony as well as in cases where the court is considering a non-custodial sentence. In respect to children in conflict with the law, social inquiry reports should be requestedfor as a matter of course. Whilst the recommendations of pre-sentence reports are not binding, the court should give reasons for departing from the recommendations. '
At paragraph 22.19 and 22.20 the policy notes that;
"Some offenders are not represented by advocates; many of them fail to understand what is required of them in terms of mitigation. In many cases, they fail to provide information that impact on the sentence, opting to remain silent or giving irrelevant information. The policy further proceeds and states the court should guide the offender on what is required of him or her at this stage"
Finally at 23.1 the sentencing policy provides that;
"The court should schedule a hearing in which it receives submission 's that would impact on the sentence. Whilst pertinent information id typically contained in the reports, the hearing provides the court with the opportunity to examine the information and seek clarity on all the issues.
The trial court after convicting the appellant summarily proceeded to sentence hearing and melted out the sentence of 15 years. It is clear from the above that, while he was within law to do so, the trial Magistrate did not fully consider the impact of the above sentencing policies which would have guided him to seek pre-sentence report and also allow the appellant to mitigate in a better manner. This is a clear misdirection which justifies the interference of the sentence melted out.
In the case R Vs Scott (2005) NSWCCA 152 Howle J Grove & Baar JJ then stated
"There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and then must be a reasonable proportionately between the sentence passed in the circumstance of the crime committed...one of the purpose of punishment is to ensure that the offender is adequately punished a further purpose of punishment is to denounce the conduct of the offender. "
The Appellant was unrepresented during the trial. The trial magistrate failed to sufficiently guide the Appellant on his right to legal representation, as required under Article 50(2) (h) of the Constitution. This failure resulted in procedural unfairness and a miscarriage of justice.
The sentence of fifteen (15) years is manifestly excessive, considering the Appellant's lack of representation and the deficiencies in the prosecution's case. The Court of Appeal in Dismas Wafula Kilwake v. Republic 120181 eKLR held that mandatory minimum sentences in the Sexual Offences Act are unconstitutional as they deny courts discretion in sentencing.
The appellant was not guided on a pre-sentence report prepared to his detriment and in violation to his right to fair hearing as provided for under Article 50(2) of the Constitution of kenya 2010.The trial magistrate was aware of the recent jurisprudential development brought by the decision of In Maingi & 5 others Vs Director of Public Prosecution & Another (Petition No El 17 of 2021) (2022) KEHC 13118 (KLR) and more particularly in In Maingi & 5 others Vs Director of Public Prosecution & Another (Petition No El 17 of 2021) (2022) KEHC 13 118 (KLR)
The state submitted that the trial magistrate properly applied Section 200 CPC as compliant could not be traced as evidenced by the proceedings as the complainant could not be found . Counsel cited the decision of the Court of Appeal in JOSEPH KAMAU GICHUKI VS REPUBLIC Criminal Appeal No. 523 of 2010 (2013) eKLR.
Prosecution submitted that all the ingredients of the offence had been proved beyond any reasonable doubt.
It was submitted that there were no inconsistencies in the dates of the alleged offence or material inconsistencies in the by the prosecution. Counsel cited the decision of the Court of Appeal in Richard Munene Vs
Republic [20181 eKLR
On the allegation that the trial court erred in failing to summon critical witnesses including the clan elders it was submitted that under Section 143 of Evidence Act no particular number of witnesses is required for the proof of any fact and the prosecution is not obliged to call a superfluity of witnesses. He relied on the decision of Court of Appeal in the case of Richard Munene Vs Republic [20181 eKLR
On whether the sentence was harsh , it was submitted that the appellant was charged under Section 8(4) of the Sexual Offences Act which prescribes a minimum sentence of 15 imprisonment for the offence and thus the point was not supported by the law.
The state cited the Supreme Court decision in Republic v Mwangi; Initiative for Strategic
Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [20241 KESC 34 (KLR) (12 July 2024) in which the court held that the court has a duty to impose the sentences under the sexual offences Act to the letter as per the intention of the legistlature .
On legal representation it was submitted that the appellant was well guided on his right to legal representation from the proceedings of 19th April 2022 the court clearly informed the accused of his right to legal representation under Article 50(2)(g) of the Constitution.
6. I have carefully re-evaluated the entire evidence on record and the submissions .
Issues for determination
The issues arising for determination are:
i. Whether appellant was informed on his right to counsel.
ii. Whether the trial court erred in reviewing his own directions for de novo hearing and substituting the same with directrions that hearing to procced form where it had stopped. .
iii. Whether appellant’s rights to fair trial were violated by the said review of directions under section 200 CPC and if so
iv. Whether the court should order a retrial of this case.
Analysis and Determination
7. On whether appellant was informed of his right to counsel , he pleaded that the court for not informing him of this right .Prosecution submitted that he was informed of this right. Upon perusal of the court proceedings of 19.4.22 indicate that the appellant was promptly informed of his right to counsel are required by Article 50 (2) (h) of the Constitution of Kenya. The ground therefore does not hold .
8. Appellant also faulted the court for directing that the case starts de novo and changing its mind and directing that the matter proceeds form where it had stopped . on 31.10.23 Hon Biwott noted that the trial magistrate Was on transfer and directed that the case starts de novo upon appellant being given a chance to elect how to proceed. The matter came up several y for hearing but witnesses did not attend court . Finally on 14.6.24 witnesses were absent again and the prosecutor asked the court to go back and review the orders dated 31.1.23 and proceed from where the matter has reached .The appellant on his part asked the court to close the case in the absence of the witnesses . the court allowed the application. Prosecution submitted that the court was right to review its own orders an allow the case to proceed from where it had stopped as complainant . Generally, Accused persons have a right to recall of witnesses under Section 200 CPC unless the witnesses cannot be found. Complainant’s mother appeared in court with the investigating officer on 14.6.25 and the officer sought that the mother explains the whereabouts of compliant but she was not given a chance to do so . As held in the cited In Abdi Adan Mohamed v. Republic [20171 eKLR, case Section 200 CPC should be applied sparingly to avoid miscarriage of justice . At the time the prosecution agreed to de novo hearing they must have been sure of availability of complainant and other witnesses .By 14.6.24 she was already an adult. The investigating officer did not state the efforts she made to trace her. I agree with defence counsel that appellant was prejudiced by the order to start the case de novo as it had already been directed that the matter proceeds form where it had stopped . The appellant in his mind was prepared for De novo hearing and not proceeding from where the case had stopped . In any event the court had no jurisdiction to review the said directions once made as it is a preserve of the High court , The proceedings on which the appellant was convicted are thus a nullity . The right of appellant to fair hearing under Article 50 (2) of the Constitution was thus violated. I declare the said proceedings to be a mistrial
9. On whether this court should order a retrial, in the case of Muiruri v Republic (2003) KLR, 552 the court held that a retrial would be ordered where the interests of justice dictate as much and if it is unlikely to cause injustice to the applicant. In addition, in the case of Diriye v Republic (Criminal Appeal 115 of 2020) [2022] KECA 24 (KLR) (4 February 2022) (Judgment), the Court of Appeal held that whether a retrial would be ordered will depend on whether the proceedings were illegal or defective. In that case, the plea taking process was found to be flawed and the Court of Appeal ordered for a retrial. I am guided by the said decision and find that the t case was initiated in the year 2022 and it took 3 years for the court to conclude the matter though appellant was also partly to blame for the delay but prosecution was majorly to blame due to absence of witnesses . The appellant served a sentence for defective proceedings . Even if this court orders a retrial there is no guarantee that PW1 who is the star witness will be availed given the history of the matter . Re-trial will therefore prejudice the appellant in the circumstances . I proceeded to acquit the appellant under Section 215 CPC . Appellant be set free unless otherwise lawfully held .