[2013] KEHC 1750 (KLR)
The court found that the appellant was not given an opportunity to cross-examine the child witness, whose testimony was the only direct and incriminating evidence against him. This procedural irregularity amounted to a violation of the appellant's right to a fair trial. As a result, the conviction and sentence were...
Source-derived case information.
- Citation
- [2013] KEHC 1750 (KLR)
- Parties
- Appellant: Feresio Njeru Njeru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 139 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction and sentence quashed; retrial ordered
- Legal Topics
- Sexual Offences, Attempted Defilement, Indecent Act With Child, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Feresio Njeru Njeru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the failure to allow the appellant to cross-examine the child witness vitiated the trial.
- 2 Whether the conviction and sentence should be quashed due to procedural irregularity.
Ratio Decidendi
The court found that the appellant was not given an opportunity to cross-examine the child witness, whose testimony was the only direct and incriminating evidence against him. This procedural irregularity amounted to a violation of the appellant's right to a fair trial. As a result, the conviction and sentence were quashed. However, given the recency of the matter and the seriousness of the charges, the court ordered a retrial rather than an acquittal, ensuring that justice is served while upholding the accused's procedural rights.
Court Disposition
conviction and sentence quashed; retrial ordered
Orders
- The conviction and sentence against the appellant are quashed.
- There shall be a retrial of the appellant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NUMBER 139 OF 2011
FERESIO NJERU NJERU........................….............……...…………..APPELLANT
VERSUS
REPUBLIC………………………………............……………………..RESPONDENT
(Being an appeal from the original conviction and sentence in Siakago 766 of 2010 by S.M. Mokua PM on 03. 08. 11)
JUDGMENT
The appellant was charged with the offence of attempted defilement contrary to section 9(1) (2) of the Sexual Offences Act and an alternative charge of an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. He was convicted of the main charge. During the hearing, the prosecution called four witnesses, that is PW 1, the clinical officer, PW 2, the child, PW 3, the child's grandmother and PW 4 the investigating officer.
The learned Magistrate conducted a voire dire of the child whose age was estimated to be about 3 ½ years. He concluded that the “witness is somehow knowledgeable. She shall give unsworn statement.”
PW 1 proceeded to give unsworn testimony of the felonious incident and it is upon her testimony that the appellant was convicted. The Magistrate having considered that her testimony was corroborated by the other evidence.
What is of concern though is that the appellant was not given an opportunity to cross-examine the child, who was the only witness who gave incriminating and direct evidence against him. I think this vitiates the entire proceedings and as such, the conviction and sentence are quashed.
As this is a relatively recent matter, I direct that there shall be a retrial of the appellant.
D.A.S MAJANJA
JUDGE
15. 10. 13
Court:
Judgment read and delivered in open court this 15th day of October, 2013
D.A.S MAJANJA
JUDGE
15. 10. 2013
In the presence of
M/S Aluda for state
Appellant
Njue – Court clerk.