https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11325

Watuku v Republic (Criminal Appeal E085 of 2023) [2026] KEHC 11325 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11325 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E085 of 2023 SC Chirchir, J July 23, 2026 Between Edward Kaguathi Watuku Appellant and Republic Respondent (Arising from the Judgment of Hon. Joan Irura (SRM) in criminal case No. 1592 of 2016, at Kigumo Law Courts, delivered on 07.07.2023) Judgment 1.The Appellant, herein was charged with the offences of Kidnapping with intent to confine contrary to Section 259 of the Penal Code. The particulars of the offence are that on 13th October, 2016 at Wempa Location in Kandara Sub-County within Murang’a County jointly with others not before court, forcefully kindnapped Evanson Kiguru Muiruri with intent to cause the said Evanson Kiguru Muiruri to be secretly and wrongfully confined. 2.In the alternative, he was charged with demanding money with menaces contrary to Section 302 of the Penal Code. The particulars of the alternative charge are that on diverse dates between 13th October 2016 and 26th October 2016 within the republic of Kenya jointly with others not before court, with menaces demanded Kshs. 50,000,000/= (fifty million) from James Muiruri Kiguru with intent to steal. 3.Following a full trial, the trial court convicted the Appellant and sentenced him to 7 years imprisonment. Dissatisfied with both the conviction and the sentence, the Appellant moved this court by way of appeal. 4.In his Amended Grounds of Appeal, the Appellant raised the following grounds;a.That, the learned trial magistrate erred in law and facts by failing to inform the appellant his right under section 200 (3) of the CPC hence proceeding on a mistrial.b.That, the learned trial magistrate erred in both law and facts in failing to take mandatory direction pursuant to section 214 (1) of the CPC.c.That, the learned trial magistrate erred in both law and facts by overlooking the fact that my right via Article 50 of the Constitution were violated. 5.The Appeal was heard by way of Written Submissions. Appellant’s Submissions 6.On the first ground, the Appellant submits there was no compliance with the provisions of Section 200(3) of the Criminal Procedure Code. He points out that the matter was heard by two different magistrates: Hon. A. Mwangi (SRM), who recorded evidence from PW1, and Hon. J. Irura (SPM), who took over following the former's transfer. The Appellant contends that the succeeding magistrate failed to inform him of his mandatory right to have witnesses recalled. He argues that the omission constitutes a mistrial. 7.To buttress this position, he has relied on the decision in John Bell Kinengeni VS. Republic (2015) eKLR, which held that a mere hollow allegation of compliance in a judgment is insufficient without evidence on the record, that the law was followed. 8.On whether a retrial should be ordered he cites the decision in the case of Ahmed Sumar vs. Republic (1964) EALR 483 to argue that a conviction vitiated by a mistake of the court, where the prosecution is not to blame, does not automatically warrant a retrial, especially where it would cause injustice to the accused. 9.The Appellant also faults the trial court for failing to take mandatory directions pursuant to Section 214(1) of the Criminal Procedure Code. He submits that when the charge sheet was amended on 13th June 2022 to exclude a co-accused who had absconded, the court was required to explain his right to recall witnesses who had already testified, such as PW1. He asserts that the failure to do so rendered the proceedings substantially defective. In this regard he has relied on the decision in the case of Yongo Vs. Republic, (1983) KLR, 319 and Peter Maina Macharia vs. Republic, Criminal Appeal No. 392 of 2007, which established that such a failure is not a mere procedural technicality curable under Section 382 of the CPC, but a violation going to the root of a fair trial 10.On the third ground, the Appellant challenges the quality of the investigation and the evidence of identification. He points out that the first report made by PW5 at Kabati Police Station did not mention his name or description and argues that there should be no variance between the initial report and the evidence given in court. 11.He further contends that the prosecution failed to call vital witnesses, including the owner of the rental house and the arresting officer, and invites the court to draw an adverse inference under the principles set out in Juma Ngodia vs. Republic (1982-88) KAR 454. 12.The Appellant also submits that the evidence of PW1 and PW2 were inconsistent regarding who was actually detaining the victim, noting that PW1's statement recorded shortly after rescue mentioned one Jackson Kiguru ,but did not implicate the Appellant. He challenges the application of the doctrine of common intention, citing Dickson Mwangi Munene & Another vs. Republic (2014) e KLR and Dracaku s/o Afia vs. Republic (1963) EACA 363, arguing there was no evidence of a pre-arranged plan involving him. 13.Finally, he invokes the cardinal principle that the burden of proof rests on the prosecution and that any doubt must be resolved in favour of the accused. Respondent’s Submissions 14.The Respondent, acknowledges the duty of this court as a first appellate court to submit the evidence as a whole to a fresh and exhaustive examination, as established in Okeno v Republic ( 1972)EA 32 to reach its own independent findings. 15.Regarding the non-compliance with Section 200(3) of the Criminal Procedure Code, the Respondent observes that the trial was indeed conducted by two different Magistrates and the succeeding magistrate failed to comply with the provisions of section 200(3) of the criminal procedure code (CPC). The Respondent further concedes that the section is coached in mandatory terms, imposing a duty upon a succeeding magistrate to inform an accused person of their right to have witnesses recalled. 16.The respondent finally concedes that the failure to inform the accused of his right under this section rendered the rest of the proceedings a nullity as this goes to the heart of the right to a fair trial under Article 50 of the Constitution. 17.On non-compliance with Section 214(1) of CPC, the Respondent submits that when the charges against the Appellant were altered, the trial court failed to explain his right to recall witnesses for further cross-examination. The Respondent acknowledges that this is a procedural technicality that cannot be cured by the provisions of Section 382 of the CPC. 18.The Respondent maintains that the technicalities were not caused by the prosecution but by the court, and therefore urges this court to carefully examine the proceedings and find that a retrial is the most appropriate order to grant, in the circumstances. Analysis and Determination 19.This being a first appeal, this court is under a duty to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The principles governing the role of a first appellate court were settled in Okeno v Republic (supra), where the Court held that the first appellate court must subject the entire evidence to fresh and exhaustive scrutiny before arriving at its own conclusions. 20.Upon consideration of the trial record, the grounds of Appeal and submissions, I have identified the following issues for determination:a).Whether there was non- compliance with sections 200(3) of the criminal procedure code.b).Whether there was non- compliance with and 214(1) of the criminal procedure code.b).whether the Appellant was positively identified.c).whether vital witnesses were omitted. Whether there was non-compliance with Section 200(3) of the Criminal Procedure Code 48.The record shows that the trial commenced before Hon. A. Mwangi (SPM), who received the testimony of the first three witnesses. Thereafter, the matter was taken over by Hon. Joan Irura (SPM), who proceeded with the hearing until its conclusion. 49.Section 200(3) of the Criminal Procedure Code provides in mandatory terms that where a succeeding magistrate takes over a partly-heard criminal case, the accused person must be informed of his right to demand that any witness be recalled for further examination or cross-examination. 50.The rationale behind the provision is to safeguard the constitutional right to a fair hearing guaranteed under Article 50 of the Constitution. It recognizes that the succeeding judicial officer never had the advantage of observing the demeanour of witnesses whose evidence may ultimately determine the guilt or innocence of the accused. Consequently, the law imposes mandatory obligation upon the court, to explain that right. 48.The Court of Appeal has repeatedly held that compliance with Section 200(3) is mandatory. In Richard Charo Mbole v Republic, (Criminal Appeal No. 135 of 2004) , subsequently cited by the same court ( sitting Nyeri , and differently constituted) in David Kimani Njuguna v Republic [2015] KECA 2 (KLR) , the Court held that failure to inform an accused person of the right conferred under Section 200(3) renders the subsequent proceedings a nullity. A similar position was adopted in John Bell’s case (supra), where the Court emphasized that compliance must affirmatively appear on the record and cannot merely be presumed from a statement in the judgment. 49.The court has examined the record of the proceedings, and is unable to find any indication that when the succeeding magistrate assumed conduct of the matter, the Appellant was informed of his statutory right to recall witnesses. There is equally no indication that the Appellant waived that right after being informed. The omission is therefore evident on the face of the record. 50.The Court agrees with both parties’ submissions that since the provision is couched in mandatory terms, the omission cannot be treated as a procedural irregularity curable under Section 382 of the Criminal Procedure Code. It occasioned prejudice to the Appellant because PW1, whose evidence was central to the prosecution case, testified before the previous magistrate. 51.Accordingly, it is the finding of this court that the proceedings conducted after the change of magistrate were fatally defective for want of compliance with Section 200(3) of the Criminal Procedure Code. Whether Section 214(1) of the Criminal Procedure Code was complied with 55.The record further shows that on 13th June 2022 the charge sheet was amended to, apparently, exclude one of the accused persons who had absconded. 56.Section 214(1) of the Criminal Procedure Code requires that where a charge is amended after commencement of the trial, firstly; the amended charge shall be read and explained to the accused and secondly, the accused shall be informed of the right to demand that witnesses who had already testified be recalled either to testify afresh or for further cross-examination. 57.The Court of Appeal in Yongo v Republic (supra) held that compliance with Section 214 is mandatory because amendment of a charge may substantially affect the manner in which an accused conducts his defence. Likewise, in Joseph Kamau Gichuki v Republic [2013] KECA 448 (KLR) the Court reiterated that failure to notify an accused person of the right to recall witnesses upon amendment of a charge constitutes a serious procedural irregularity affecting the fairness of the trial. 58.The proceedings before the trial court do not disclose that the Appellant was informed of this right after the amended charge was presented. The mere taking of a fresh plea on the amended charge did not satisfy the mandatory requirements of Section 214(1). 59.This Court therefore equally finds that the trial court failed to comply with another mandatory statutory safeguard intended to secure the Appellant's constitutional right to a fair trial. 60.The cumulative effect of the foregoing procedural omissions is that the Appellant was denied important statutory safeguards enacted to give effect to Article 50 of the Constitution. The entire trial was fundamentally flawed. Both omissions cannot be cured by Section 382 of the Criminal Procedure Code as aforesaid. They were a nullity. Consequently, the conviction founded upon those proceedings cannot be allowed to stand. They must be set aside. Whether a retrial should be ordered 63.The next inevitable question is whether a Retrial should be ordered. 64.The principles governing retrials are now well settled. In Ahmed Sumar v Republic [1964] EA 481, the then Court of Appeal for Eastern Africa, held that a retrial should only be ordered where the interests of justice require it and where it is unlikely to occasion injustice or prejudice, to the accused. Similarly, in Fatehali Manji v Republic [1966] EA 343, the Court held that the power to order a retrial must be exercised cautiously, after considering all the circumstances of the case, including the seriousness of the offence, the availability of witnesses, the length of time that has elapsed, and whether the evidence on record discloses a potentially sustainable prosecution. 65.In the present appeal, the offence alleged is grave, involving the kidnapping of a minor. The prosecution called five witnesses, including the complainant, his father, the investigating officer, a Safaricom Data Analyst and an independent eye- witness. The evidence in my view, if properly presented, is likely to sustain a conviction. 66.I have also considered the age of the victim. From the evidence he was apparently 9 years at the time of the incident and about 10 years at the time he testified. Unlike very young children, am persuaded that the memory of the incident is still intact, for him to still be in a position to recall what transpired. 67.Further, the procedural defects giving rise to the nullity were attributable to the trial court, and not to the prosecution. The prosecution should therefore not be penalised for errors that were beyond its control. 68.The court has also considered the time lapse. Although approximately ten years have elapsed since the commission of the offence and about three years since the conviction, the Court takes judicial notice that delays in criminal litigation are not uncommon. The alleged offence involved the abduction of a child and is of considerable public interest. There is nothing before this Court to demonstrate that the witnesses are unavailable or that the Appellant would suffer prejudice incapable of being remedied through a fresh hearing. 69.Taking into consideration the observations of this court as per the last four preceding paragraphs, the Court is satisfied that the interests of justice would best be served by directing that the matter be heard afresh. 70.In the end, the following orders are hereby issued:a).The appeal succeeds. The proceedings of the trial court in Kigumo Criminal case No. 1592 of 2016 are hereby nullifiedb).The conviction of the Appellant is hereby quashed and the sentence set aside.c).The Appellant shall be retried before a magistrate of competent jurisdiction other than Hon. A. Mwangi and Hon. Joan Irura.d).The Appellant shall be presented before the Chief Magistrate's Court at Kigumo on 6th August 2026 for plea- taking or directions on Re-triale).Pending such appearance, the Appellant shall remain in lawful custody. DATED, SIGNED AND DELIVERED, VIA MICROSOFT TEAMS , AT ISIOLO THIS 23RD DAY OF JULY 2026.S.CHIRCHIRJUDGE.In the presence of :Roba Katelo- Court Assistant.The Appellant.Mr. Majale for the Respondent