https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9904

Kea v Republic (Criminal Appeal E041 of 2025) [2026] KEHC 9904 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEHC 9904 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E041 of 2025 JN Njagi, J July 1, 2026 Between Habel Bonde Kea Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. E.K.Usui, Chief Magistrate, in Malindi Chief Magistrate’s Court Sexual Offence Case No.E148 of 2023 delivered on 20/5/2025) Judgment 1.The Appellant was convicted for the offence of defilement contrary to Section 8 (1) as read with section 8(4) of the Sexual Offences Act No.4 of 2006. The particulars of the offence were that on 19th day of November 2023 at (name withheld village) in Malindi sub county within Kilifi County, he unlawfully caused his penis to penetrate the vagina of G.K.K. (herein referred to as the complainant), a child aged 16 years. 2.The Appellant was sentenced to serve 15 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal as per his amended grounds of appeal are that;1.That the learned magistrate erred in law by violating the appellants rights to a fair hearing as provided by Article 50(2)(c), Article 50(2)(g) and Article 50(2)(j) of the Constitution.2.That the learned magistrate erred in law and fact by finding that the prosecution proved its case beyond any reasonable doubt.3.That the learned magistrate erred in law and fact by failing to analyze the evidence tendered by the prosecution and weigh it against the evidence tendered in defence. 3.The prosecution called 4 witnesses in the case while the Appellant defended himself and did not call any witness. Prosecution case 4.The case for the prosecution is that the complainant had at the material time finished class 8 and was living with her mother PW2 in Tana River County. That on the 19/11/2023 her mother sent her to Malindi town for employed work. On getting to Malindi she was taken to the food kiosk of the appellant to work for him. She worked on 19/11/2023. That in the evening the Appellant told her that he was taking her to a house where she was to spend the night. That upon getting to the house he ordered her to remove her clothes. She hesitated but he removed her clothes and placed her on a bed. He removed his clothes and inserted his penis in her vagina. He finished and he had another session of sex with her. In the morning they went to his kiosk. She worked during the day. In the evening he took her to another house where she slept with a colleague worker. She reported to her mother PW2. Her mother travelled to Malindi and took her to Malindi police station and to Malindi sub county Hospital. She was examined by a clinical officer PW4 on 29/11/2023. He found her with a broken hymen but not freshly broken. She had no injuries in her genitalia. 5.The case was investigated by an officer who left Malindi police station on transfer and did not testify in the case. According to a colleague police officer PC Chenze PW3, the investigating officer had recorded statements of witnesses and obtained the birth certificate of the complainant. He had arrested the appellant and charged him with the offence. During the hearing PC Chenze PW3, produced the birth certificate as exhibit, P.Exh.2. The clinical officer PW4 produced the P3 form, treatment notes and lab request form as exhibits, P.Exh.1 (a) – (c) respectively. 6.It was the evidence of the mother to the complainant that the complainant was at the material time aged 16 years. She identified the birth certificate of the complainant during the hearing. Defence case 7.When placed to his defence, the Appellant stated in a sworn statement that he is a businessman and was at the material time running a hotel. That he at the time needed a worker. His cousin took a worker to him and he took her to his hotel. That in the evening he took her to where his other female employees were sleeping. He left her there. On the following day he went and picked her and took her to the hotel. She worked. On Thursday he paid the other girl. The complainant worked on Friday and Saturday. She complained that she could not work alone. He told her that she could leave. They then started to threaten him. He was later charged. He denied that he defiled her. Submissions 8.The Appellant majorly submitted on the violation of his right to fair hearing. He further submitted that the offence he was convicted of was not proved. 9.The Respondent on the other hand submitted that the offence the Appellant was convicted of was proved beyond reasonable doubt. Additionally, that it was not demonstrated that his rights were violated. That he cross-examined the witnesses, testified in his defence and was accorded the opportunity to present his case. That no prejudice was occasioned to him. Analysis and determination 10.This being a first appeal, this court has a duty to revisit the evidence that was adduced before the trial court, re-evaluate and analyze it and come to its own conclusion while at the same time bearing in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record, See Okeno v R (1972) EA 32. 11.I have considered the grounds of appeal, the record of the trial court and the submissions tendered by the parties. The issues for determination are, first, whether the rights of the Appellant to fair trial were violated and secondly whether the charge against the Appellant was proved beyond reasonable doubt. 12.The Appellant submitted that the trial court violated his right to fair in that when the case came up for hearing on 18/1/2023 he had not been supplied with copies of witness statements despite the order by the court for the prosecution to supply him with the same. That the court thereupon ordered that he be supplied with the same and for the case to proceed on the same day at 11.30am. That he was thereafter called out on the same day and PW1 gave her evidence. That when he was asked to cross-examine her, he informed the court that the statements supplied to him were in English language which was a language he did not understand. That the court in a bizarre turn of events, cancelled his bond terms and ordered that he be remanded till the next day for further hearing. It further ordered the in charge Malindi GK Prison to ensure that the statements were translated to him. That on the following day he was compelled to proceed with the evidence of PW1 and PW2 before translation was done. That after PW2 testified the trial court ordered him to provide additional security of Ksh.100,000/= and remanded him in custody until the case was heard and determined. 13.The Appellant consequently submitted that the trial court violated his right to be given adequate time to prepare for his defence contrary to Article 50(2)(c) oof the constitution. Further that the prosecution violated his right to be informed in advance of the evidence the prosecution intended to rely on and to have reasonable access to that evidence contrary to Article to Article 50(2)(j) of the Constitution. 14.I have perused the proceedings of the trial court and 1 do note that the Appellant`s submission on the failure by the trial court to supply him with copies of witness statements were true. The court prosecutor indeed confirmed that they had not supplied the Appellant with copies of witness statements when the case came up for hearing on 18/1/2024. When PW1 testified and the appellant was asked to cross-examine her, he stated that he was not in a position to cross-examine her as her statement was in English language which was a language that he did not understand. At that point the court on its own motion cancelled his bond and remanded him in custody. It ordered the case to proceed on the following day. On the said day the Appellant cross-examined PW1 and PW2 testified and the appellant cross-examined her. At the close of the evidence of the witness the trial court ordered the Appellant to provide further security of Ksh.100,000/= ((despite the fact that there was already a bond of Ksh.200,000/) and further that he be remanded in custody until the case was heard and determined. 15.Article 50(2)(c) and (j) of the constitution provide as follows:(2)Every accused person has the right to a fair trial, which includes the right-(c)to have adequate time and facilities to prepare a defence;(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence. 16.From the above narration, it is clear that the trial court denied the Appellant adequate time and facilities to prepare for his defence. Even after the Appellant informed the court that he needed time to have the witness statements translated to him before he could proceed with the case the court for no apparent reason cancelled his bond and remanded him in custody. On the following day the court proceeded with the case without enquiring on whether the statements had been translated to him in prison. At the end of the session the court ordered him to provide additional security of Ksh.100,000/= when he had not breached any of the bond terms. The court remanded him in custody “until the matter is heard and determined”. This in effect seems to have been a cancellation of his bond. 17.The manner in which the trial court handled the Appellant`s case was wanting and irked of bias. The trial court cancelled his bond on its own motion and for no apparent reason. It proceeded with the hearing of the case before ensuring that the Appellant was ready for trial even after he brought it to the attention of the court that he needed the statements to be translated to him. The prosecutor indeed confirmed that there was no indication that they had supplied the Appellant with copies of witness statements. To cancel the Appellant`s bond so as to proceed with the case on the following day while in custody created an atmosphere of intimidation and fear. More so, to proceed with the case without ensuring that the documents had been translated to him was a violation of his right to fair hearing. There was no good reason to remand him in custody until the case was heard and determined. 18. It is clear that the manner the trial court conducted the case denied the appellant time and facilities to prepare his defence. 19.The second complaint by the Appellant was that during plea taking he was not informed of his right to be represented by an advocate of his choice contrary to Article 50(2)(g) of the constitution. He submitted that the violation rendered the whole trial a nullity. He relied on the case of JOO V Republic (2021) eKLR. 20.Article 50 (2) (g) of the Constitution of Kenya, 2010 provide as follows:Every accused person has the right to a fair trial, which includes the right -(g)to choose, and be represented by, an advocate and to be informed of this right promptly. 21.The right to fair trial is one of those rights under Article 25 of the Constitution that cannot be limited. The right is mandatory. The court record indicates that the trial court did not at any point inform the Appellant of his right to be represented by an advocate of his choice. The issue was comprehensively dealt with by the court in JOO V Republic (supra) where Wendoh J. stated that it is the trial court which is required to inform the accused of that right. 22.The Appellant was facing a very serious charge of defilement that carried a minimum sentence of 15 years. It was therefore important for the trial court to inform him of his right to be represented by an advocate of his choice. It was the duty of the court to protect the fairness of the trial process by ensuring that the appellant was properly guided on all his rights. Failure to do so was a violation of his right under Article 50(2)(g) of Constitution. In the case of JOO V Republic (supra), the court held that violation of Article 50(2)(g) rendered the trial a nullity. 23.Consequently, it is my finding that the trial court violated the Appellant`s rights to fair hearing in denying him time to prepare for his defence and failing to inform him of the right to be represented by counsel. This amounted to a miscarriage of justice. The trial was in the circumstances a nullity. There is no need to consider the other grounds of appeal once the court finds that the trial was a nullity. I thereby quash the conviction of the trial court and set aside the sentence. 24.In view of my finding, the question is whether I should order a re-trial. The principles governing whether or not a retrial should be ordered were enunciated 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.” 25.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.” 26.The appellant was arraigned in court 4th December 2023. I find the prosecution had substantial evidence against the Appellant. I do not think that he will suffer any prejudice if he is re-tried of the offence. In the premises, I order that the Appellant be re-tried of the offence by another magistrate of competent jurisdiction other that Hon. E.K. Usui. DELIVERED, DATED AND SIGNED IN OPEN COURT AT GARSEN THIS 1ST JULY 2026.J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RepublicAppellant – present virtually at GK Prison MalindiCourt Assistant – Rahma