Eric Ndubi v Republic

iii. The learned trial magistrate erred in law and in fact in failing to notice and/or acknowledge that the complainant stated that the accused was his boyfriend and that she voluntarily took herself to the Appellant’s house. iv. The learned trial magistrate erred in law and in fact by failing to consider the complainant testimony that she took herself to the Appellant’s home, they would have sex whenever she visited the Appellant. Those cannot be the circumstances of a victim of defilement. v. The learned trial magistrate erred in law and in fact by failing to consider that the circumstances are that the complainant behaved like an adult. She left her aunt’s home and went to the Appellant’s house purposely to have sex. vi. The learned trial magistrate erred in law and in fact in condemning the Appellant for the voluntary acts of the complainant yet the complainant was enjoying the relationship. vii. The learned trial magistrate erred in law and in fact in failing to consider that the age of the complainant was not proved beyond reasonable doubt. viii. The learned trial magistrate erred in law and in fact in failing to consider that the Appellant’s advocate had requested to have the witnesses recalled for cross examination but the state never recalled their witnesses and therefore the Appellant was not accorded a fair hearing. ix. That the learned trial magistrate erred in law and fact by not observing the Appellants right to fair hearing. x. That the learned trial magistrate erred in law and fact by imposing a harsh and excessive sentence for it was mandatory and failed to consider the Appellant’s mitigation and circumstances of the case. xi. The learned trial magistrate erred in law and in fact by failing to consider the accused’s lamentation and harshly and excessively convicting him. 6. The Appellant prayed that the appeal be allowed and the conviction be quashed and the sentence be set aside. 7. The appeal was canvassed by way of written submissions. Appellant’s Submissions 8. The Appellant’s advocate submitted that his right to a fair hearing was breached on the ground that having allowed the witnesses to be recalled the court did not give the advocate a chance to duly crossexamine them. That the court record does not indicate if there were any challenges in tracing the witnesses. That failure to have the matter restart, having granted the orders, curtailed the appellant’ right to a fair hearing. Cited in support of the submissions was Mbugua v Republic (2022) KEHC 3037 KLR. 9. It was further submitted that the trial court to appreciate the Appellant’s defence of deception on the part of the complainant, who told the appellant that she was an adult. That the trial court failed to appreciate the evidence that the complainant was not in school and thus allow his defence under Section 8(5) of the Act. That the fact that the complainant was a child was not apparent. To support this submission, the Appellant cited the cases of Eliud Waweru Wambui v Republic (2019) eKLR and Musyoka v Republic (2024) eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16456/eng@2025-11-13 2

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10. On sentence, the appellant submitted that the same was harsh and that the trial court failed to consider the mitigating circumstances. Respondent’s Submissions 11. The prosecutor reiterated the evidence adduced in the trial and submitted that all the elements of the ofience had been proven, namely the age of the victim the act of penetration and the identification of the Appellant. 12. On the sentence the prosecutor submitted that the same was lenient and urged the court to enhance the same. Analysis and Determination 13. Being a first appeal, this court’s duty is to the evaluate the evidence adduced and reach its own independent conclusion. This principle was set out in Okeno v Republic (1972) EA 32 where it was 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 the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion.” 14. Similarly, in Kamau Njoroge v Republic [1987] eKLR, the Court of Appeal stated: “ As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect.” 15. After analyzing the matter, I find the following issues arising: a. Whether the Appellant was prejudiced by the manner that the trial was conducted. b. Whether the ingredients of the ofience of defilement were proven. c. Whether the Appellant’s defence under Section 8(5) of the Act was sufficiently raised. 16. Needless to state, if I am to find that the Appellant was prejudiced by the manner the trial was conducted, then I need not look at the other issues that arise. 17. From the lower court record, it is clear that the trial proceeded before Hon. M. A. Odhiambo Resident Magistrate. The Appellant was unrepresented at first but Mr. Maore came on record for him on 10th May 2023. The advocate then applied to have PW1, PW2, PW3 and PW4 recalled. Although the application was opposed, the court granted the application. 18. After the order for the recall of witnesses was made, for one reasons or another they did not turn up and the trial court granted a last adjournment. 19. Thereafter, the trial magistrate ceased to hear the case and Hon. E. Ndegwa, SRM took over its conduct. The said magistrate duly complied with Section 200(3) of the Criminal Procedure Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16456/eng@2025-11-13 3

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After hearing the submissions by the prosecutor and the defence counsel, the court ordered that the case would start afresh. 20. On 15/07/2024, when the case came up for hearing, no witnesses were available and the court declined to grant an adjournment. The prosecution then closed its case. 21. The Appellant’s complaint is that after the order for the case to commence de novo, he was not given an opportunity to cross-examine the witnesses as sought. That the prosecution did not give an indication as to whether the witnesses were available or not. To the Appellant, his right to a fair trial was breached. 22. The prosecutor did not address this issue. 23. Section 200(3) and (4) of the Criminal Procedure Code provides as follows; (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 resummoned and reheard and the succeeding magistrate shall inform the accused person of that right. (4) Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial. 24. Ideally, before a court issues an order for a case to commence de novo or recall witnesses under that section, it ought to consider several factors including: -The time taken during the trial;The availability of the witnesses and the possibility of loss of memory in regards to the facts of the case;If the witness is vulnerable under the law. 25. The list is not exhaustive and the court’s duty is to ensure that the accused is made aware of the right. Even when the accused applies for the recall of the witnesses, the court has to bear in mind that the right is not absolute and circumstances such as the ones listed earlier have to be considered. This position was laid out by the Court of Appeal in Ndegwa v Republic (1985) KLR 534. The court held that; “ Section 200 is a provision of the law which is to be used very sparingly indeed and only in cases where the exigencies of the circumstances, not are likely but will defeat the end of justice, if a succeeding Magistrate does not or is not allowed to adopt and continue a criminal trial started by a predecessor owning to the latter becoming unavailable to complete the trial. Section 200 is not to be invoked where seemingly in the instant case such a half heard trial is a short one. It could be conveniently started de novo because the prosecution witnesses are still available locally and the passage of time when the trial first commenced and another magistrate taking over almost midway, is so short so as not to cause or produce any accountable loss of memory on their part, whether actual presumed or pretended, to the prejudice of either the prosecution or the accused.” 26. Having granted an order for the witnesses to be recalled, the court then shackled the prosecution by granting a last adjournment. Without doubt, the same order also curtailed the Appellant’s right under Section 200(3) of the Code, which it had already granted. 27. In my view, the order declining the adjournment, just after allowing the application to recall the witnesses ought to have been exercised with a lot of restraint, since it is the trial court that had ordered a retrial/recall. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16456/eng@2025-11-13 4

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28. It is possible that even after an order for the trial to commence de novo is given, witnesses may not be available. In such cases, then the court ought, during the trial, to record that fact and then determine the way the case is to proceed, for example, by proceeding from where the case had reached. That did not happen in the trial. Instead, the issue was only considered by the learned magistrate in her judgment and she applied Section 34 of the Evidence Act. 29. In my opinion, the application of the said section and directions in the manner that the trial was to proceed should have been made within the trial itself. 30. Looking at the trial court records, I am in agreement that the Appellant’s right to a fair trial was breached. 31. I therefore quash the appellant’s conviction, and set aside the sentence. 32. So having made the finding above, I need not look at the evidence adduced as it is likely to influence the trial court after the orders that I will make herein. 33. So what is the cause to be taken? The court is aware that the witnesses had testified and the Appellant had given his defence. The alleged incident occurred in 2022. The witnesses testified in 2023 and 2024. There hasn’t been much delay. 34. In my opinion, under section 200(4) of the Code, the proper way to ensure a fair trial is for a retrial to take place. 35. Therefore, I direct that the Appellant be presented before the Chief Magistrate’s Court Meru for a fresh trial before another magistrate other than Hon. M.A. Odhiambo (R.M.) or Hon. E.W. Ndegwa (S.RM.). 36. The exhibits produced during the trial to be returned to the prosecution. SIGNED, DATED AND DELIVERED AT MERU THIS 13TH DAY OF NOVEMBER, 2025. H. M. NYAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16456/eng@2025-11-13 5

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