REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO CRIMINAL APPEAL NO.58 OF 2013 WILLIAM MITEI ALIAS TEACHER ………APPELLANT -VERSUSREPUBLIC………………..………..……..RESPONDENT (Being an appeal from the conviction and sentence in criminal case No. Sexual Offences 3 of 2013 Senior Principal Magistrate’s Court Kericho, Hon. Ndururi(Principal Magistrate). JUDGMENT The appellant herein was convicted and sentenced to life imprisonment 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 are that on the 22nd day of January 2013 at about 2.00p.m in Kericho County intentionally caused his penis to penetrate the vagina of F C C a child aged 7 years. Before the trial of this case commenced on 27/6/2013 a voire dire examination was done in respect of the complainant, a girl aged 8 years at the time. At page 7, 2nd paragraph the learned trial magistrate observed “witness is intelligent enough to testify. She also understands the importance of telling the truth. However, she is too young to understand the meaning of an oath. She will give unsworn evidence.” The learned trial magistrate proceeded to receive her unsworn statement. After she testified the learned trial magistrate did not give an opportunity to the appellant to cross-examine her. The prosecution concedes on that ground and prays for a re-trial. I find the cencession to be meritorious on the issue of re-trial. The appellant had been convicted and sentenced to life imprisonment for the offence of defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. He was convicted on 5/12/2013. He has served three years and a couple of months. The mistake of not allowing the crossexamination of the complainant was not by the prosecution. I find that this is a good case for re-trial. I find the conviction and sentence were not safe and they are quashed and set aside accordingly. The appellant to be produced before the Chief Magistrate on 27th July, 20127 for taking of plea. Judgment delivered, dated and signed this 20th July, 2017 in open court and in the presence of learned Counsel for the Prosecution, learned Counsel for the Defence absent, Court Assistant, Hillary. HON. M. MUYA JUDGE 20/7/2017
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