James Menza Karisa v Republic

3. 4. That the learned magistrate erred in both law and facts by failing to appreciate that the witnesses were greatly unreliable and their evidence was manifestly questionable. 5. That the learned magistrate erred in both law and facts by failing to appreciate that this matter was never adequately investigated. The prosecution called 5 witnesses in the case while the Appellant was the only witness in his case. Prosecution case 4. The case for the prosecution is that the complainant was at the material time a class 6 primary school pupil. She was staying with her grandmother who did not testify in the case. Her mother PW2 was at the time working in Nairobi. 5. It was the evidence of the complainant who was PW1 in the case that in 2017 the Appellant seduced her and they became lovers. That sometimes in the year 2018 she went to the house of the Appellant and they engaged in sex. He wanted to take her to school but she refused as she had some pain. She stayed in his house for 3 months as his wife. After the three months her teacher went and picked her and took her to the police station. She was taken to hospital where she was examined and found to be pregnant. She later delivered on 4/6/2019. 6. The mother to the complainant PW2 testified that in the year 2018 she was working in Nairobi. The complainant was staying with her mother. That she was later called and informed that the complainant was not in school. She was found at a man`s place at Malindi. She called her school and told them to report the matter to the police. The complainant and the man were arrested. 7. The complainant was examined at Malindi sub county hospital by one Dr. Ibrahim. The medical documents were produced in court Dr. Rimba PW4. His evidence was that he had worked with Dr. Ibrahim for a period of 9 years and that he was on that day attending to an emergency. That he was familiar with his handwriting. That the complainant was attended to on 13/12/2018 and her P3 form completed on 17/2/2020. The complainant had by then given birth and had a child at the time of examination. The hymen was broken. The doctor formed the opinion that there was penetration and birth of a child. During the hearing of the case in court PW4 produced the treatment notes and the P3 form as exhibits, P.Exh 2 and 3 respectively. 8. The case was investigated by Cpl Marian Hassan PW3 of Malindi police station. It was her evidence that on 14/2/2020 the complainant was taken to the police station by a social worker of a rescue home at Vipingo. The complainant reported that in the years 2017-2018 she had been living with the Appellant as man and wife but she was rescued by a children officer. Her report was booked on 7/11/2018. She PW3 issued her with a P3 form which was duly completed. That on 13/8/2020 they arrested the Appellant at Malindi. He was charged with the offence. Defence case 9. The Appellant stated in a sworn statement that he never committed the offence that he was charged with. That no DNA test was conducted to ascertain who the father of the child was. 10. The appeal was canvassed by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6238/eng@2026-05-08 2

page 2 of 7

Appellant`s Submissions 11. The Appellant raised one ground of appeal – that the trial court erred in law by failing to comply with the mandatory provisions of section 200 of the Criminal Procedure Code thereby violating the Appellants rights as provided under Article 50 of the constitution. 12. The Appellant submitted that the magistrate who convicted him took over the case from a preceding magistrate who had heard two witnesses. That the magistrate upon taking over the case did not comply with the provisions of section 200(3) of the Criminal Procedure Code which requires the magistrate taking over the case where witnesses have been heard to explain to the accused person his right to recall the witnesses who have testified. 13. It was submitted that the convicting magistrate upon taking over the case made an order suo moto for the case to start afresh without explaining to the Appellant his right to recall witnesses. That even after making the said order, the matter did not start afresh as ordered but proceeded from where it had reached, thus violating the Appellant`s rights to fair hearing. 14. The Appellant submitted that the provisions of the section are meant to protect the rights of an accused person. Reference was made to the case of Office of Director of Public prosecutions v Peter Onyango Odongo & 2 others (2015) eKLR where Makau J (as he then was) held that: where Justice Makau stated that: Section 200 (3) of the Criminal Procedure Code is intended in my view to address the mischief that may arise when a succeeding Magistrate commences hearing of proceedings where part of the evidence had been recorded by his predecessor, without explaining to the accused of his rights to re-summon or recall witnesses who had given evidence before the succeeding magistrate’s predecessor, for cross examination if need be. The Section is intended to protect the rights of an accused to a fair trial and give the succeeding Magistrate an opportunity to note the demeanor of the witnesses to enable Court make a just decision. It should be noted Section 200(3) of C.P.C. gives an accused person an opportunity to demand to have any witnesses recalled. This Section makes it mandatory for succeeding Magistrate to inform the accused person of his right to have any of the witness recalled for cross-examination or to testify again. It should be noted it is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned with but it is mandatory to explain the accused his rights, the failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity. 15. The Appellant submitted that compliance with the provisions of section 200(3) of the Criminal Procedure Code are mandatory and that failure to do so rendered the trial a nullity. Reliance was placed in the Court of Appeal decision in Njenga v Republic (Criminal Appeal 147 oof 2017) (2023) KECA 1585 (KLR) (10 December 2023) (Judgment) where it was held: 16. It is the duty of the trial court to inform the accused person of his rights under Section 200 CPC. In John Bell Kinengeni v Republic [2015] eKLR, this Court addressed the import of Section 200(3) at length and concluded that:“ the duty is reposed on the court and there is no requirement that an application be made by the accused person for such compliance, and failure to comply with that requirement would in an appropriate case render the trial a nullity as Section 200(3) requires in a mandatory https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6238/eng@2026-05-08 3

page 3 of 7

tone that the succeeding magistrate (read judge) shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate…." From the above analysis, it is evident that failure to inform the appellant of his rights as discussed above was fatal and rendered the trial a nullity. 17. It was submitted that in view of the fact that the trial was a nullity there is no need of considering whether the offence of defilement was proved. 18. The Appellant submitted that he was sent to prison on 7th March 2024 but the offence was said to have been committed om 4th November 2018. That it would be impossible for the prosecution to procure the witnesses in view of the time when the offence was committed. That it is not proper to order a retrial in the case. He urged the court to so find. Respondent`s submissions 19. The submissions for the Respondent were confined to the proof of ingredients of the offence of defilement and did not touch on the issue raised by the Appellant that there was no compliance with section 200(3) of the Criminal Procedure Code. Analysis and determination 20. This being a first appeal, this court is mandated to analyse and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: “ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.” 21. The only ground of appeal that the Appellant put up is that the trial was a nullity for failure by the trial court to comply with the provisions of section 200(3) of the Criminal Procedure Code. The Section provides that: “ 200 (1) (2) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may(a) deliver a judgment that has been written and signed but not delivered by his predecessor; or b) Where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial. Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6238/eng@2026-05-08 4

page 4 of 7

(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 re-summoned 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.” 22. It is abundantly clear from the provisions of section 200(3) of the Criminal Procedure Coode that a trial court taking over a part-hard case in a criminal proceeding where witnesses have testified has an obligation to inform the accused of his right to recall witnesses who have already testified. In this case, the convicting magistrate, Hon. E.K. Usui, took over the case from the preceding magistrate, Hon, W.K. Chepseba after the complainant PW1 and her mother PW 2 had testified. The record of the trial court shows that the learned trial magistrate on taking over the case made an order suo moto for the case to start afresh without her explaining to the Appellant his right under section 200(3) of the Criminal Procedure Code to demand for witnesses who have testified being recalled as per the provisions of the said section. The question then is whether the failure to do so vitiated the trial. 23. The Appellant has cited authorities in the cases of Office of Director of Public Prosecutions v Peter Onyango Odongo & 2 others and Njenga v Republic (supra) that postulate that failure to comply with the said provision renders the trial a nullity. The same position was taken in the case of Kariuki versus Republic (1985) KLR 504 where the High Court (Abdullah &Aluoch JJ) held that: “ ……Under Section 200 (3) of the Criminal Procedure Code (Cap 75) an accused person is entitled to demand that any witness be re-summoned and reheard and a duty is imposed on a succeeding Magistrate to inform the accused person of that right…….. The assumption of jurisdiction by the succeeding Magistrate without informing the appellant of his right was wrong and the trial by the succeeding Magistrate was a nullity…..” 24. In John Maina Kariuki v Republic [2008] KEHC 3918 (KLR), Makhandia J. (as he then was) cited the Tanzanian case of Raphael vs Republic (1969) EA 544, in which the court was deliberating on the same provisions of the law and stated:“ …….It is a prerequisite to the second Magistrate’s exercising jurisdiction that he should appraise the accused of his right to demand that the witness or any of them be re-summoned and reheard under Section 196 of the Criminal Procedure code….. If the second Magistrate has not complied with this prerequisite it is fatal, he has no jurisdiction and the trial is a nullity………” 25. The reason behind the provision for the succeeding court re-hearing the evidence of witnesses who have already testified before another court is to enable the succeeding court assess the demeanor and credibility of witnesses. In Kilwake v Republic [2019] KECA 5 (KLR) the Court of Appeal stated that: “ The rationale behind section 200(3) is to ensure that the case is determined, as much as is practicable, by a judge or magistrate who had the opportunity of hearing and seeing the witnesses as they testified, so as not to lose the advantage of observing their demeanor and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6238/eng@2026-05-08 5

page 5 of 7

assessing their credibility. That fact was emphasized by this Court in Ndegwa v Republic (1985) KLR 535 when it stated: “ It could also be argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanor and credibility of witnesses. It has been and will be so in other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully "observed" the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanor of all the witnesses in the case. A fatal vacuum in this case in our opinion...for these reasons we have stated, in our view the trial was unsatisfactory.”(See also David Geoffrey Gitonga v Republic [2016) eKLR and Abdi Adan Mohamed v Republic [2017)" 26. In the case against the Appellant, the magistrate who convicted him did not hear the evidence of two of the witnesses for the prosecution – the complainant and her mother. The complainant was a very crucial witness in the case. She was the sole witness that the Appellant defiled her. It was therefore very important for the court to explain to the Appellant/Accused whether he wanted the witness to be recalled. It was for the Appellant/Accused to inform the court upon the court explaining to him the provisions of the section whether he wanted to have the witnesses recalled or not. The court even after making an order for the case to start afresh did not have the case start afresh but continued with the case from where it had reached. In effect, the court violated the right of the Appellant to fair hearing. 27. It is settled law that the provisions of section 200(3) of the Criminal Procedure Code are mandatory and failure to comply with the same renders a trial a nullity. It is therefore my finding that the trial in the case against the Appellant was vitiated and thus a nullity for failure by the trial court to comply with section 200(3) of the Criminal Procedure Code. 28. Having come to the above finding, the question is whether I should order a retrial. The principles governing whether or not a retrial should be ordered were stated in Fatehali Manji v Republic (1966) EA 343 by the East Africa Court of Appeal as follows: “ In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person.” 29. In Mwangi v Republic (1983) KLR 522 the Court of Appeal also held thus: “ We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.” 30. From the above authorities, it is pertinent that a trial will only be ordered where the interests of justice so require. Each case must depend on its particular facts and circumstances. An important factor to be considered is whether on a proper consideration of the admissible, or potentially admissible evidence, a https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6238/eng@2026-05-08 6

page 6 of 7

conviction might result. Other factors that the court is required to consider include the length of time the trial has taken and whether witnesses are readily available. 31. The offence in this case is said to have been committed in the year 2018 which is close to 8 years ago. The complainant was at the time aged 14 years and is now aged about 22 years. I have noted from the pre-sentence report presented at the lower court that the Appellant subsequently begot another child with the complainant and now they have two children between them. In such circumstances I do not think that the interests of justice would call for a re-trial. 32. The upshot is therefore that I find merit in the appeal. The trial of the Appellant was vitiated by failure by the trial court to comply with the provisions of section 200(3) of the Criminal Procedure Code and the trial was a nullity. For the reasons stated above, I am of the view that a re-trial will not serve any purpose in the case. Consequently, the conviction entered by the trial court against the Appellant is quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 8TH MAY 2026. J. N. NJAGI JUDGE In the presence of: …………for Respondent Appellant - present virtually at G.K. Prison……… Court Assistant - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6238/eng@2026-05-08 7

page 7 of 7