Francis Anjichi Alias Frank v Republic

5. Dissatisfied with the trial court’s judgment the Appellant filed the current appeal citing the following grounds: i. That the trial court erred in law and in fact in making a finding that the ingredients of the offence had been proved beyond reasonable doubt. ii. That the trial court erred in law and in fact in not weighing the conflicting evidence in the prosecution case that is inconsequential to conviction. iii. That the trial court erred in law and in fact in not considering the procedural errors that could not be cured by Section 382 of the CPC and were fatal to the prosecution Case. iv. That the trial court erred in law and in fact in not making a finding that the constitutional rights of the Appellant were breached and therefore there was no fair trial. v. That the trial court erred in law and in fact in not appreciating the Appellant’s cogent defence that overwhelmed the prosecution case. vi. That further grounds were to be adduced upon receipt and perusal of the trial court proceedings. 6. The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. 7. The appeal was heard by way of written submissions. Both parties filed their submissions. Appellant’s Submissions 8. The Appellant submitted on two grounds being that the trial court erred in law and in fact in making a finding that the ingredients of the offence had been proved beyond reasonable doubt and that the convicting Magistrate Hon. Kimetto erred in law in not complying with Section 200 (3) of the CPC. Respondent’s Submissions 9. In opposing the appeal, the Respondent submitted that crucial elements to sustain a conviction for the offence of defilement were proved by the prosecution at the trial court. On the question of compliance with Section 200 (3) CPC, the Respondent submitted that this was a mistake by the trial Court and should not be visited upon the Respondent. Analysis and Determination 10. The role of this Court as the first Appellate Court is well settled. It was held in the case of Okemo vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that. 11. Before delving into the other grounds of appeal, I first observe that the Appellant raised a ground of appeal which in my view is so fundamental in the justice system that it forms part of the constitutionally guaranteed right to fair trial. 12. In his submissions, the Appellant submitted that the convicting Magistrate Hon. Kimetto breached section 200 (3) of the Criminal Procedure Code. This in my view, is a serious issue of law as opposed to fact which ought to be determined before any other issues can be determined. This is because, if found https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7615/eng@2026-06-03 2

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that the learned trial Magistrate was in violation of Section 200(3) of the Criminal Procedure Code, the trial ought to be declared a nullity. 13. Section 200 of the Criminal Procedure Code deals with instances where a criminal trial is handled by more than one Magistrate. The said provision stipulates:(1) 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 resummon the witnesses and recommence the trial. (2) 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 exercise that jurisdiction, the succeeding Magistrate may pass sentence or make any order that he could have made if he had delivered judgment. (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 Appellant 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. 14. According to this Section, it is clear that it is the trial court that is legally bound to take the initiative and inform the accused of his right whenever one trial Magistrate takes over a trial from the preceding or a previous trial Magistrate. It is incumbent upon the succeeding trial Magistrate to inform the accused of his right to demand that any witness who has testified before the previous Magistrate be resummoned and reheard afresh. 15. The proceedings herein were previously taken by Hon. J. Mitei who delivered a Ruling on case to answer on the 23/02/2023 and explained to the Appellant the provisions of Section 211 of the CPC. Hon Mitei placed the matter for defence hearing on the 30/03/2023 with a mention on the 9/03/2023. 16. On 9/03/2023, Hon. Kimetto mentioned the matter and confirmed the hearing for the 30/03/2023, when the Appellant was not produced in court and a production order for 17/4/2023 was issued. 17. Again on 17/04/2023, the Appellant was not produced in court and this prompted Hon. Kimetto to give a hearing date for 05/06/2023, with a virtual mention for the 19/04/2023. When the Appellant did not appear for mention on this date a further production order was issued for 26/04/2023. On this date the file was mentioned at Kodiaga prison and the hearing date of 05/06/2023 was confirmed. 18. On the 05/06/2023 the Appellant informed the court that he was ready. The prosecution counsel was equally ready and Hon. Kimetto proceeded and took the defence of the Appellant and reserved https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7615/eng@2026-06-03 3

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a Judgment for 02/08/2023. From the proceedings in the lower court, at no stage did Hon. Kimetto inform the Appellant herein of his right to recall the witnesses and have them reheard or re-examined. It is obvious therefore that the right to recall witnesses and or the trial starting denovo was not explained to the Appellant, when Hon. Kimetto took over the proceedings. 19. In the cases of Ndegwa v Republic (1985) eKLR 534 and Paul Kithinji v Republic [2009] eKLR it was held that failure to comply with the provisions of section 200(3) of the Criminal Procedure Code Cap 75 of the Laws of Kenya ought to render a trial a nullity. Further in Raphael versus Republic (1969) E.A. 544, it was held that failure to inform the accused of his right is fatal because such information is the prerequisite for assumption of jurisdiction of the succeeding Magistrate. Without informing the accused, the succeeding Magistrate has no jurisdiction to preside over the trial and the trial is thereby rendered a nullity. This was reiterated further in Malindi Criminal Appeal No. 57 of 2014, Joseph Kamora Maro versus Republic; where the Court of Appeal held as follows: “ The position in law is that a trial Magistrate taking over a case that is partly heard is mandatorily obligated to inform an accused person of his right to recall witnesses. After an accused person has been informed of his right, he/she may elect to have the witnesses recalled. What happens thereafter is for the court to decide depending on the availability of witnesses, the length the trial has taken, because if it has taken too long, chances are that some witnesses may have left jurisdiction of the court as was the case here or some may have even died. To this extent we are in agreement with the learned judges of the High Court that “this provision does not oblige the succeeding Magistrate to start denovo” but what is mandatory is to inform an accused person of his right under section 200(3) of the Criminal Procedure Code.” 20. Applying the above principles set by the Court of Appeal to the instant appeal, I find that the learned trial Magistrate did not at all explain to the Appellant the requirements of section 200 (3) CPC. The Appellant and the prosecution just indicated that they were ready and the court proceeded to take the Appellant’s evidence. 21. I find and hold that the learned trial Magistrate erred in law when he/she failed to comply with the provisions of section 200 (3) of the Criminal Procedure Code. 22. On the effect of failure to comply with the said as stated above, Section 200(4) of the Criminal Procedure Code provides that: “ 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.” 23. The High Court therefore has the discretionary power to set aside a conviction where the convicting Magistrate convicted an accused person upon evidence not wholly recorded by him/ or her and the court has the power to order a retrial. In the case of Mercy Mugure v Republic [2018] eKLR, Mrima J in appreciating the effects of failure to comply with section 200(3) held that: “ the Appellant’s right to a fair hearing under Article 50 of the Constitution was therefore infringed by the failure by the succeeding Magistrate to fully comply with Section 200(3) of the Criminal Procedure Code. In essence all the subsequent proceedings were veiled with that unconstitutionality and cannot stand in law. That is why this Court will not deem it https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7615/eng@2026-06-03 4

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necessary to deal with the rest of the appeal on its merit. I will however consider the possible way forward; that is if the Appellant is to be set at liberty or be re-tried. 24. I will take cue from the above finding and find that the failure by the trial Magistrate to comply with section 200(3) of the Criminal Procedure Code makes the trial court’s conviction of the Appellant invalid and all the subsequent proceedings veiled with unconstitutionality and cannot stand. I will therefore quash the conviction and set the sentence aside. 25. Having quashed the Appellant’s conviction and set aside the sentence imposed the next question is whether the Appellant should be set at liberty of a retrial should be ordered. 26. This question was discussed by the Court of Appeal in Samuel Wahini Ngugi v Republic [2012] eKLR, where the Court held: “ The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows: “ It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’ 27. In the instance case, if a retrial is ordered, the succeeding Magistrate will proceed as is directed. If there will be any challenges at that point in prosecuting the retrial, the prosecution counsel will proceed and make the necessary applications to the Court. In any event, the Respondent herein has also submitted that the fair way out in the instance case is an order for retrial. 28. In those circumstances and balancing the rights of the Appellant to a fair trial and the rights of the complainant to have administrative action that is expeditious, efficient, lawful, and reasonable and procedurally fair, I find that a retrial would be most suitable in the circumstances. I therefore direct for a retrial of the Appellant before any other Magistrate, in Kisumu law Courts, other than Hon. Kimetto and Hon. Mitei. 29. And having so found and held, I find it unnecessary to determine the other grounds of appeal. Accordingly, and to the extent that I have stated above, this appeal is allowed. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JUNE 2026. ………………………………………… L. M. WACHIRA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7615/eng@2026-06-03 5

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In the presence of: Kevin– Court assistant Appellant – present in person (virtually from Kisumu Max.) Ms Jebichi - for the State/Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7615/eng@2026-06-03 6

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