[2019] KEHC 9150 (KLR)
The court found that the appellant was not given an opportunity to present his defence due to illness, which amounted to a violation of his right to a fair trial. This procedural irregularity rendered the conviction unsafe. Consequently, the court allowed the appeal, set aside the conviction and sentence, and...
Source-derived case information.
- Citation
- [2019] KEHC 9150 (KLR)
- Parties
- Appellant: J M O; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 71 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence set aside; retrial ordered
- Judges
- DAS Majanja
- Legal Topics
- Incest, Sexual Offences, Right to Fair Trial, Retrial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J M O
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was denied the opportunity to present his defence due to illness.
- 2 Whether the conviction and sentence should be set aside and a retrial ordered.
Ratio Decidendi
The court found that the appellant was not given an opportunity to present his defence due to illness, which amounted to a violation of his right to a fair trial. This procedural irregularity rendered the conviction unsafe. Consequently, the court allowed the appeal, set aside the conviction and sentence, and ordered a retrial before the Ogembo Magistrate’s Court. The appellant was to remain in custody pending the retrial, which was to commence on a specified date.
Court Disposition
appeal allowed; conviction and sentence set aside; retrial ordered
Orders
- The appeal is allowed.
- The conviction and sentence are set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CORAM: MAJANJA J.
CRIMINAL APPEAL NO. 71 OF 2018
J M O..........................................APPELLANT
VERSUS
REPUBLIC.............................RESPONDENT
(Appeal from the original conviction and sentence of Hon. C.R.T Ateya – RM dated 10th January 2018 at the Senior Resident Magistrate’s Court at Ogembo in Sexual Offences Case No. 9 of 2017)
JUDGMENT
1. This is a case where the appellant was charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act, convicted and sentenced to 20 years imprisonment. It was alleged that on 27th January 2017 at Misesi Sub-location, Gucha Sub-County within Kisii County, he intentionally caused his penis to penetrate the vagina of DN, a female aged 17 years who was to his knowledge his daughter.
2. Having perused the proceedings, I am satisfied that the appellant was not given an opportunity to present his defence on account of illness.
3. I therefore allow the appeal but shall order a retrial at the Ogembo Magistrate’s Court. The appellant shall remain in custody pending trial until the complainant testifies. He shall be taken for retrial on 15th March 2019.
Dated and delivered at Kisii this 7thday of March 2019.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.
Appellant in person.