Peter Kuria Alias Pk v Republic

avail the prosecution witnesses for further cross examination for court to gauge their credibility on their demeanors. 4. That the learned trial magistrate erred in law and facts by convicting the appellant without weighing his defence statement against the prosecution case thus violating section 169 of the Criminal Procedure Code. 5. That the learned trial magistrate applied wrong principle during sentencing by meting out a manifestly harsh and excessive mandatory minimum sentence which was unconstitutional. 3. The appeal was canvassed by way of written submissions. 4. In his submissions, the applicant raised the broad themes that the prosecution case was not proved beyond reasonable doubt, that Section 200 of the Criminal Procedure Code was not complied with by the trial court and that his defence was quashed without cogent reasons. He attacked the sentence on the basis that it was harsh and excessive. 5. It is submitted that the prosecution relied on PW1, a single witness which contradicted the medical evidence. IT is stated that PW1 gave unsworn evidence as she did not appreciate the meaning of an oath and the obligation to speak the truth. Though the court took PW1 through a voir dire examination, it did not record whether she would speak the truth or not. 6. The Appellant submits that at all material time, Agnes, his sister was in the subject house and reference is made to the evidence of PW2 as prove of this. Further, that PW1 did not adduce evidence of having been invited, lured coerced or intimidated to visit the Appellant. 7. The medical evidence is attacked on ground that PW3’s testimony was to the effect that PW1 had been sexually penetrated. The Appellant adds that he objected to the production of the medical evidence by PW3 as he was not the maker and indeed the court made orders summoning one Miriam of Nanyuki teaching and referral hospital. 8. On non-compliance with Section 200 of the CPC, it is submitted that despite the court complying with the law and ordering that PW1, 2, 3 and 4 be recalled for further cross-examination, they were never availed. Reliance was placed on the case of Ndegwa vs Republic (1985) eKLR 534. 9. The Appellant maintains that his defence was dismissed without cogent reason. That in his defence he showed that the presence of PW1 in his house portended no mischief as his sister was in company of PW1. Though this issue was raised in the defence, the prosecutor ought to have rebutted it. 10. On sentence, the Appellant maintains that the same was harsh and excessive and the court imposed an unconstitutional mandatory sentence. 11. There are no submissions on record by the state. 12. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. This duty was set out in Okeno vs. Republic [1972] EA by the Court of Appeal as follows; “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/166/eng@2026-01-16 2

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some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.” 13. Similarly, in Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “ 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 to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. 14. The evidence at the trial was as follows; PW1 (complainant) testified that she left home and went to Agnes, sister to the Appellant. Agnes led her to the Appellant who gave her a soda. He had met the Appellant in church. They started watching a movie up to 8.30.pm. The Appellant started touching her. He touched her breasts. He asked her to remove her trousers and when she did, he touched her thighs. At that point, she and the Appellant were nude. The Appellant asked her for sex promising her a phone. 15. Shortly, she heard her mother’s voice from outside. The Appellant dressed up quickly and got out of the house. Her mother found her in the bedroom. She screamed. People came and matter was reported to the police. PW1 was examined at hospital. 16. PW2 testified that PW1 disappeared and had not returned by 7.00pm. They mounted a search in vain. They went to the home of the Appellant after learning that PW1 was usually found with him. The mother to the Appellant indicated she had not seen PW1. On being shown the Appellant’s house, she knocked at the door and which was opened after 3 minutes. The Appellant said he had last seen PW1 at 3.00pm. PW2 entered the bedroom and found PW1 trying to dress up. She screamed and people came. The Appellant and PW1 were taken to the police station and PW1 was then taken to hospital for examination. 17. On cross-examination, PW2 stated that when PW1 was 10 years old, she was defiled by a relative. 18. PW3 produced a P3 form and a PRC form filled upon examination of PW1. His conclusion was that the victim had been sexually penetrated. 19. PW4 was the arresting officer and he received the Appellant who had been brought to the station by members of the public. 20. PW5 produced a birth certificate confirming that the complainant was 11 years at the time of the incident. 21. PW6, the investigating officer recorded witness statements and charged the Appellant. 22. On being placed on his defence, the Appellant stated that on 9.1.21, he returned home from work. Two girls, Faith and Agnes came. After 5 minutes JW knocked and the Appellant opened. W started screaming saying that “she was waiting for this”. The Appellant was taken to the police station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/166/eng@2026-01-16 3

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23. Section 9(1) of the Sexual Offences Act (No. 3 of 2006) states that “a person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.” Section 9(2) prescribes a minimum sentence of 10 years’ imprisonment upon conviction. 24. An attempt is defined by Section 388 of the Penal Code as occurring when a person: a. Intends to commit an offence; b. Begins to put that intention into execution by means adapted to its fulfilment; c. Does not fulfill the offence because of circumstances independent of their will, or desists of their own motion. 25. In this particular case, the prosecution bore the onus to prove that the victim was a child (below 18 years), the positive identification of the accused, overt acts showing attempt to penetrate, meaning acts that go beyond mere preparation toward the act of penetration but do not result in penetration itself. (see Benson Musumbi v Republic and Mutai v Republic). 26. A fundamental issue relating to the propriety of the proceedings and which has a bearing on the right to a fair hearing enshrined in Article 50 of the constitution has come to the attention of the court from the record, and, indeed the Appellant has raised it as a ground of appeal. It is a clear point of law which based on the outcome upon its consideration may dispose this appeal and thus I elect to deal with it first. 27. The Appellant’s trial proceedings were on the 9.12.21 taken over by Hon. A.R.Kithinji CM, the case having been partly heard by Hon. L. Mutai CM. Hon. Kithinji duly complied with the law under Section 200 of the Criminal Procedure Code (CPC) and the Appellant sought, as is within his rights, that witnesses be recalled. The court made an order that PW1, 2, 3 and 4 be recalled for further crossexamination. 28. The record shows that the said witnesses were never recalled. The trial court’s ruling on a case to answer and its judgement were thus based on incomplete evidence thus abrogating the right to a fair trial under Article 50 of the constitution. 29. Section 200(3) CPC provides that where a succeeding magistrate takes over a part-heard criminal case, the accused person has the right to: a. demand that any witness who had already testified be recalled for further cross-examination, or b. elect that the trial start de novo. 30. Once the court orders recall of witnesses, that order is mandatory and binding on the prosecution. 31. Failure to recall witnesses after the court has granted the request amounts to a violation of Article 50(2) (k) of the constitution – the right to challenge and test evidence; and Article 50(2)(c) – the right to adequate facilities to prepare a defence. 32. This is primarily because the accused is denied the benefit of cross-examining witnesses before the magistrate who will determine guilt and the evidence previously up to that point in my view is incomplete and cannot possibly be the basis for placing an accused on his defence leave alone convict him. Once recall is ordered but not complied with the evidence recorded by the previous magistrate cannot safely be relied upon. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/166/eng@2026-01-16 4

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33. A conviction founded on such evidence is unsafe and such a trial and conviction becomes a nullity. In Ndegwa v Republic [1985] KLR 535, the Court of Appeal held: “ The provisions of section 200 of the CPC are intended to ensure fairness to an accused person and should be used sparingly… failure to comply may occasion a miscarriage of justice.” 34. In Abdi Adan Mohamed v Republic [2017] Eklr the Court of Appeal emphasized that the right under section 200(3) is not cosmetic; Once recall is elected, the court must ensure compliance and proceeding without recalled witnesses violates fair trial rights. 35. The high court in Joseph Kamau Gichuki v Republic [2013] eKLR quashed a conviction where recall was ordered, witnesses were not availed, yet the court relied on earlier testimony. The failure was held to be fatal to the prosecution case. 36. The law was also elucidated in Stephen Mburu v Republic [2016] eKLR where it was held; “ Where a recall order is made and the prosecution does not avail witnesses, the court must either compel compliance or strike out the evidence.” 37. I think I need not say more as it is by now clearly demonstrated that the Appellant’s trial is vitiated by a fatal omission as indicated above. The subsequent trial and conviction was based on incomplete evidence since the order for recall was mandatory and binding on the prosecution. Failure to recall the witnesses meant that there was insufficient evidence and it was unsafe to convict on such evidence. The resultant conviction was unsafe. 38. In the end, I quash the conviction and set aside the sentence herein and substitute thereof an order of acquittal. The Appellant shall be set at liberty forthwith unless otherwise lawfully held under another warrant. DATED SIGNED AND DELIVERED THIS 16TH DAY OF JANUARY, 2026. A.K. NDUNG’U JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/166/eng@2026-01-16 5

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