[2018] KEHC 8650 (KLR)
The trial was fundamentally flawed because the trial magistrate, having determined that the child complainant should testify through an intermediary, failed to allow the child to express herself or to permit the appellant to cross-examine the child through the intermediary. This omission violated the appellant's...
Source-derived case information.
- Citation
- [2018] KEHC 8650 (KLR)
- Parties
- Appellant: Kevin Odhiambo Owino; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 88 of 2016
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction and sentence quashed; retrial ordered
- Judges
- DAS Majanja
- Legal Topics
- Sexual Offences, Attempted Defilement, Child Witnesses, Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kevin Odhiambo Owino
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in its handling of the child witness and intermediary procedure.
- 2 Whether the appellant was denied the right to cross-examine the child witness through the intermediary.
- 3 Whether the trial was fatally defective due to procedural errors.
Ratio Decidendi
The trial was fundamentally flawed because the trial magistrate, having determined that the child complainant should testify through an intermediary, failed to allow the child to express herself or to permit the appellant to cross-examine the child through the intermediary. This omission violated the appellant's right to a fair trial and rendered the proceedings defective. As a result, the conviction and sentence could not stand and were quashed. However, due to the nature of the offence and the procedural lapse rather than a substantive acquittal, the court ordered a retrial.
Court Disposition
conviction and sentence quashed; retrial ordered
Orders
- The conviction and sentence are quashed.
- The appellant shall be retried.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT SIAYA
CRIMINAL APPEAL NO. 88 OF 2016
BETWEEN
KEVIN ODHIAMBO OWINO........................APPELLANT
AND
REPUBLIC...................................................RESPONDENT
(Being an Appeal against the original conviction and sentence
dated 5th August 2016 in Criminal Case No. 1029 of 2015
in Bondo Law Courts before Hon. E.N. Wasike, RM)
JUDGMENT
1. The Appellant, KEVIN ODHIAMBO OWINO, was charged and convicted of the offence of attempted defilement contrary to section 9(2)of theSexual Offences Act. The particulars of the offence were that on 18th November 2015, at around 3. 30am, at [particulars withheld] location, Bondo district, he unlawfully and intentionally attempted to cause his penis to penetrate the vagina of AA, a child aged 5 years.
2. I have considered the proceedings and the same are fraught with error. The trial magistrate allowed PW 1, the mother of the child to act as the intermediary as the child was aged 5 years. However, PW 1 proceeded to testify on her own behalf. The child was not asked any questions and no question were put to her through PW1 acting as intermediary. Neither was the appellant given an opportunity to cross-examine the child by putting his questions through the intermediary.
3. This is not to say that the Court cannot proceed without calling the child. What is clear is that the trial magistrate assessed the situation and found that the child could testify through the intermediary. By so finding, the trial magistrate ought to have afforded the Child the opportunity to express herself and for the appellant to put forward his questions.
4. The trial was defective therefore the conviction and sentence are quashed. However, the appellant shall be re-tried. He shall remain in custody and be taken for plea at Bondo, Principal Magistrates Court on 6th February 2018.
DATED AND SIGNED at SIAYA this 2nd day of February 2018
D. S. MAJANJA
JUDGE
Appellant in Person
Ms Odumba, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the State
Court Assistants: Laban O. Odhiambo, Ishmael Orwa