(from the conviction and sentence in SPMCR NO E030 OF 2023 DELIVERED BY HON N.W KARIUKI SPM on 23/2/2023)
1. The Appellant was charged, tried and convicted for offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and convicted and sentenced to 25 years imprisonment vide S.O. Case No. E134 of 2019 at PM’s Court at Mariakani (Hon. N. W. KARIUKI PM) on 23/2/2023.
2.Being aggrieved he lodged the present appeal on the following amended grounds;
THAT the learned Trial Magistrate erred in law and facts for not considering that Section 200(3) of the Criminal Procedure Code was not fully complied with, that there was no medical evidence to corroborate the victims evidence , the case was not proved beyond reasonable doubt and the sentence was excessive.
2. It would appear that the state did not see these amended grounds as their submissions were on the evidence.
3. The Appellant submitted that section 200 (3) is couched in mandatory terms by the words “and the succeeding magistrate shall inform the accused person of that right and the trial court in the subject matter must be faulted for the flagrant omission to enforce that right.
4. That what happened in the subject trial is a blatant denial of his right to fair trial because the trial court actually handled his case with total disregard of the said provision of the Criminal Procedure Code.
5. He cited the Court of Appeal in the case of OMUOMBO VS REPUBLIC which held thus;
“The judge erred in law when he took over the case in unexplained circumstances and handled it to the end. It is apparent that in taking over the case from the previous magistrates the incoming magistrates was oblivious of the mandatory provisions of Section 200 (3) of the Criminal Procedure Code. It would appear that the incoming magistrate simply walked into the proceedings and without informing the appellant of his right under Section 200(3) of the Criminal Procedure Code proceeded with the case. As a result of the appellant’s right to determine how the trial should proceed before the incoming magistrate was breached. In the case of KARIUKI VS REPUBLIC [1985] 504 the court held inter alia”,
Under section 200(3) of the Criminal Procedure Code (Cap 75), an accused person is entitled to demand that any witness should be re-summoned and re-heard and a duty is imposed on a succeeding magistrate to inform the accused person of that right. The assumption of jurisdiction by the succeeding magistrate without informing the accused person of his right was wrong and the trial of the succeeding magistrate was a nullity”.
6. It was his argument that it is apparent that the succeeding magistrate in the subject matter assumed jurisdiction of continuing with the matter and proceeded to receive the evidence of the remaining witnesses without informing him of his right to recall any of the witnesses who had testified before he took over the hearing of the said remaining witnesses evidence.
7. It was further submitted that it may have been on the erroneous understanding that he indicated that he was ready to proceed with the reception of the other witnesses’ testimonies.
8. The relevant extract of the proceedings was reproduced thus from page 30;
“Accused present
Interpretation – Kiswahili/English
Prosecution
I have the IO and the Doctor
I am ready to proceed.
Accused
I am ready
Court
Hearing to proceed
Examination in Chief
PW 3 – Dr. Abdulaziz Mohamed Duly Sworn Adult Muslim States in Swahili
I am doctor Abdulaziz Mohamed from Coast general hospital”
9. The Appellant suggested that the trial court could have proceeded on the understanding that when he indicated that he was ready to proceed, he implied that he was fully aware of the right to recall the witnesses who had not testified, which was not the case.
10. From the above extract and a close scrutiny of the record, section 200 0f the CPC was not complied with. I have noted that there were several mentions between the new court taking over and when the hearing took off. This can be a possible explanation for the lapse.
11. All in all, there is a wealth of authorities on this aspect and I agree with the Appellant that it is a mandatory provision. Failure to do so was an error on the part of the court. It was a fatal error and at this point we need not delve at the other grounds.
12. Whenever such an error occurs, The court has to balance the interest of justice and technical compliance. There are several authorities to this effect. One is R VS YOHANA 2024 259 KLR in which Justice Mrima cited THE COURT OF APPEAL IN SAMWEL WAHINI VS R and also LOLIMO EKIMAT VS R. Taking a cue from these decisions and considering all the factors including that not so much time has lapsed , I direct that the case goes back for a re trial to commence from where Hon. Odhiombo had left.
13. I order and the original file be placed before the Head of Station Shazu Law courts to allocate the matter to a new court for hearing and determination on priority basis
14. To the extent mentioned above, this appeal succeeds.
15. It is so ordered.
DATED SIGNED AND DELIVERED THIS 31ST DAY OF JULY 2024
WENDY KAGENDO
JUDGE
APPELLANT PRESENT IN PERSON
MS MAINA FOR THE STATE
BEBORA COURT ASSISTANT 1