REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA CORAM: D.S MAJANJA J. CRIMINAL APPEAL NO. 4 OF 2018 JUSTUS ABUGA ONDIEKI...........APPELLANT VERSUS REPUBLIC ................................... RESPONDENT (Appeal from the original conviction and sentence of Hon. A.C Towett – RM dated 21 st September 2017 at the Chief Magistrate’s Court at Nyamira in Criminal Case No. 4 of 2016) JUDGMENT 1. The appellant, JUSTUS ABUGA ONDIEKI, was charged, convicted and sentenced to life imprisonment for the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act. It was alleged that on 23rd May 2015 at [particulars withheld], Manga SubDistrict within Nyamira County he intentionally and unlawfully caused his penis to penetrate the vagina of AKM, a child aged 5 years. 2. Counsel for the respondent conceded the appeal on the grounds that when Hon. Towett, took over the proceedings from Hon. Kitangwa RM, she did not comply with section 200(3) of the Criminal Procedure Code. I agree with this concession. 3. As to whether I should order a retrial, I have looked at the testimony of the child (PW 1), it is inconsistent and when viewed in light of the other evidence, it may not sustain a conviction. I shall not order a retrial. 4. This appeal is allowed. The appellant is set free unless otherwise lawfully held on a separate warrant. Dated and delivered at Kisii this 5th day of April 2019. D.S MAJANJA JUDGE Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions. Mr. Ndege, advocate for the appellant.
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