Caleb Otieno Mwalo v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT SIAYA CRIMINAL APPEAL NO. 29 OF 2019[SO] CALEB OTIENO MWALO............................................................APPELLANT VERSUS REPUBLIC...................................................................................RESPONDENT (Appeal from the judgment, conviction and sentence delivered by Hon. E. N. Wasike, SRM at Bondo on 24th April 2019 vide Bondo SO Case No. 52 of 2018) JUDGMENT 1. The appellant CALEB OTIENO MWALO was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. of 2006. Particulars of the offence were that on the 5th Day of September, 2018 at about 1930 hours at [particulars withheld] Market in Bondo Sub County within Siaya County intentionally and unlawfully caused his penis to penetrate the vagina of SAO [full name withheld for legal reasons] a child aged five years. 2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No.3 of 2006 by intentionally touching the vagina of the complainant child aged 5 years with his penis. 3. The appellant denied the offence and the prosecution called five witnesses in support of its case. After the trial, the appellant was found guilty and sentenced to serve thirty [30] years imprisonment. 4. Being dissatisfied with the said conviction and sentence, the appellant lodged this appeal dated 29 th April 2019 and later he filed amended grounds of appeal and submissions in support of the appeal. 5. As required, this being a first appeal, this court is expected to reassess and reevaluate the evidence adduced before the trial court and arrive at its own independent conclusion bearing in mind the fact that unlike the trial court, this court neither saw nor heard witnesses as they testified. 6. However, before delving into the evidence adduced in the trial court, this court observes the following: 7. The proceedings by the trial magistrate were irregularly conducted in that there was no signature appended after recording evidence of PW1 both in chief and after cross examination of the witnesses by the appellant. In the same vein, there is no signature of the trial magistrate owning the evidence adduced by the appellant. Section 197 of the Criminal procedure Code deals with manner of recording of evidence by magistrates during the trial Manner of recording evidence before magistrate. The section provides that: 197(1) in trials by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner— (a) the evidence of each witness shall be taken down in writing or on a typewriter in the language of the court by the magistrate, or in his presence and hearing and under his personal direction and superintendence, and shall be signed by the magistrate, and shall form part of the record; (b) Such evidence shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative. 8. In addition, whereas PW1 a minor testified after voire dire examination on her was carried out, PW2 too from the record is a minor but the trial court never made any indication that she was a minor and hence no voire dire examination was carried out on her. There is also no

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