https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6478

Mohamed v Republic (Criminal Appeal E004 of 2024) [2026] KEHC 6478 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6478 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E004 of 2024 JN Njagi, J May 8, 2026 Between Daudi Mohamed Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. R.C.Mwachi, Resident Magistrate, in Mpeketoni Principal Magistrate’s Court Sexual Offence Case No. E016 of 2023 delivered on 25/9//2024) Judgment 1.The Appellant herein was convicted for the offence of defilement contrary to Section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the 13th September 2023 (name withheld) village in Lamu West sub county within Lamu county he intentionally caused his penis to penetrate the vagina of A.R. (herein referred to as the complainant/victim), a girl aged 9 years. 2.The Appellant was sentenced to serve life imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal as per his undated amended grounds of appeal are that:1.The learned trial magistrate erred in law and facts by failing to find that the rights of the Appellant under Article 49(1) (f) and (i) of the constitution of Kenya were violated.2.The learned trial magistrate erred in law and facts by failing to consider that voire dire examination was not conducted in the case contrary to the provisions of Section 19(1) of the Oaths and Statutory Declarations Act.3.The learned trial magistrate erred in law and fact in failing to find that no forensic examination such as DNA was done in the case.4.The learned trial magistrate erred in law and fact in failing to consider that the trial court did not comply with Section 200(3) of the Criminal Procedure Code.5.The learned trial magistrate erred in law and fact in failing to find the trial court did not consider the Appellant’s defence.6.The learned trial magistrate erred in law and fact in failing to find that the age of the victim was not proved. 3.The prosecution called 5 witnesses in the case while the Appellant defended himself and did not call any witness. Case for prosecution 4.The case for the prosecution was that the victim herein was at the material time a grade 2 pupil of the age of 9 years as evidenced by an age assessment report, P.Exh.3. She was staying with her parents, her mother PW2 and her father PW3. The Appellant was their neighbour. 5.That on the material day at around 4 pm the victim arrived home from school. The Appellant called him to his house. She went there. He closed the door and gave her biscuits and pawpaws. He then undressed her and did “bad manners” to her by applying saliva on her vagina and inserting his “kidudu” into her vagina. She went home and her mother inquired from her where she had been but she did not disclose. On the following morning at 5 am her mother PW2 passed by her bed as she slept and saw some fluid oozing out of her vagina. She woke up her husband PW3 who witnessed the same. They inquired from the girl as to who had defiled her and she told them that it is Daudi, the Appellant. They reported the case at Witu police station. PC Saadia Hassan PW4 investigated the case and issued the victim with a P3 form. She was taken to Witu Health Centre where she was examined by a clinical officer PW5 who found her with scratch marks on the abdomen, torn/perforated hymen with rough edges, swollen and reddish labia majora and minora, fresh laceration with blood on the left labia minora and superficial laceration on the posterior fourchett. Further that there was clear fluid oozing from vagina. Other lab tests were done. The clinical officer completed her P3 form. 6.During the hearing of the case in court, the clinical officer PW5 produced the treatment notes and the P3 form as exhibits, P.Exh.1 and 2 respectively. The investigating officer produced the age assessment report as exhibit, P,Exh.3. Defence Case 7.The Appellant when placed to his defence stated in a sworn statement that he is a businessman and a farmer. That on the 13/9/2023 he was attending a merry-go-round meeting that lasted from 12.30 pm to 1.45 pm. That after that he went to supply wholesale goods to his customers. He later went for prayers and to his shop. That on the following day, he opened his shop. At 6.45 am the village headman and 2 KPR officers went to his shop. They accused him of defiling the complainant on the previous day at 4pm. He denied it. The parents to the complainant went to the place. Police were called and he was taken to Witu police station. He was charged with the offence and denied the charge. He further said that samples were taken from him for DNA analysis but he was not provided with the results. He said in cross-examination that he did not know the complainant. 8.The appeal was canvassed by way of written submissions. 9.The Appellant submitted that he was arrested on 14/9/2023. That he was not taken to court until the 18/9/2023. That the detention of 4 days without being taken to court was a violation of his right under Article 49(i) and (f) – the right to be told the reason for arrest and to be taken to court as soon as reasonably possible, but not later than twenty-four hours after being arrested. It was submitted that there was no explanation for the delay in not presenting him before court for a period of 4 days. That this is not a procedural irregularity that can be cured by the provisions of section 382 of the Criminal Procedure Code. 10.The Appellant submitted that voir dire examination was not conducted and did not meet the standard required under section 19(1) of the Oaths and Statutory Declarations Act. Reliance in this respect was placed in the case of RMM V Republic (2019) eKLR. 11.It was submitted that the Appellant asked the court to order a DNA to be conducted in the case but the court ordered it to be conducted at his own cost. He submitted that he was convicted for failure to foot the costs for DNA yet section 36 of the Sexual Offences Act allows the investigators to take samples from suspects for purposes of conducting DNA analysis. 12.It was submitted that the evidence of PW1, 2 and 3 was heard by Hon. Chesoni. That the magistrate who convicted him, Hon. Mwachi, took over the case and recorded the evidence of PW4 and PW5 but did not comply with the provisions of section 200 (3) of the Criminal Procedure Code which requires a magistrate who has taken over a part-heard case from a preceding magistrate to explain to the accused his right to have witnesses who have testified being recalled. 13.The Respondent filed submissions which however did not touch on the ground of appeal before the court in respect to the trial court`s non-compliance with section 200(3) of the Criminal Procedure Code. Analysis and determination 14.This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.” 15.The only ground of appeal that the Appellant put up is that the trial was a nullity for failure by the trial court to comply with the provisions of section 200(3) of the Criminal Procedure Code. The Section provides that:“200 (1) Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may-(a)deliver a judgment that has been written and signed but not delivered by his predecessor; orb)Where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.(2)Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right.(4)Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.” 16.It is abundantly clear from the provisions of section 200(3) of the Criminal Procedure Coode that a trial court taking over a part-heard case in a criminal proceeding where witnesses have testified has an obligation to inform the accused of his right to recall witnesses who have already testified. In this case, the convicting magistrate, Hon. E.K. Usui, took over the case from the preceding magistrate, Hon, W.K. Chepseba after the complainant PW1 and her mother PW 2 had testified. The record of the trial court shows that the learned trial magistrate on taking over the case made an order suo moto for the case to start afresh without her explaining to the Appellant his right under section 200(3) of the Criminal Procedure Code to demand for witnesses who have testified being recalled as per the provisions of the said section. The question then is whether the failure to do so vitiated the trial. 16.The law is that the provisions of section 200(3) of the Criminal Procedure Code are mandatory and failure to comply with the same renders the trial a nullity. In the case of Office of Director of Public prosecutions v Peter Onyango Odongo & 2 others (2015) eKLR, Makau J. (as he then was) held as follows in regard to the section:Section 200 (3) of the Criminal Procedure Code is intended in my view to address the mischief that may arise when a succeeding Magistrate commences hearing of proceedings where part of the evidence had been recorded by his predecessor, without explaining to the accused of his rights to re-summon or recall witnesses who had given evidence before the succeeding magistrate’s predecessor, for cross examination if need be. The Section is intended to protect the rights of an accused to a fair trial and give the succeeding Magistrate an opportunity to note the demeanor of the witnesses to enable Court make a just decision.It should be noted Section 200(3) of C.P.C. gives an accused person an opportunity to demand to have any witnesses recalled. This Section makes it mandatory for succeeding Magistrate to inform the accused person of his right to have any of the witness recalled for cross-examination or to testify again. It should be noted it is not mandatory to recall the witnesses for either cross-examination or to give evidence as far as this section is concerned with but it is mandatory to explain the accused his rights, the failure to inform the accused of his rights under that Section renders the subsequent proceedings a nullity. 17.In Njenga v Republic (Criminal Appeal 147 oof 2017) (2023) KECA 1585 (KLR) (10 December 2023) (Judgment) it was held that:It is the duty of the trial court to inform the accused person of his rights under Section 200 CPC. In John Bell Kinengeni v Republic [2015] eKLR, this Court addressed the import of Section 200(3) at length and concluded that:-“the duty is reposed on the court and there is no requirement that an application be made by the accused person for such compliance, and failure to comply with that requirement would in an appropriate case render the trial a nullity as Section 200(3) requires in a mandatory tone that the succeeding magistrate (read judge) shall inform the accused person of the right to demand a recall of any or all witnesses to be reheard by the succeeding magistrate….From the above analysis, it is evident that failure to inform the appellant of his rights as discussed above was fatal and rendered the trial a nullity. 18.The same position was taken in the case of Kariuki versus Republic (1985) KLR 504 where the High Court (Abdullah &Aluoch JJ) held that:“……Under Section 200 (3) of the Criminal Procedure Code (Cap 75) an accused person is entitled to demand that any witness be re-summoned and reheard and a duty is imposed on a succeeding Magistrate to inform the accused person of that right…….. The assumption of jurisdiction by the succeeding Magistrate without informing the appellant of his right was wrong and the trial by the succeeding Magistrate was a nullity…..” 19.In John Maina Kariuki v Republic [2008] KEHC 3918 (KLR), Makhandia J. (as he then was) cited the Tanzanian case of Raphael vs Republic (1969) EA 544, in which the court was deliberating on the same provisions of the law and stated:-“…….It is a prerequisite to the second Magistrate’s exercising jurisdiction that he should appraise the accused of his right to demand that the witness or any of them be re-summoned and reheard under Section 196 of the Criminal Procedure code….. If the second Magistrate has not complied with this prerequisite it is fatal, he has no jurisdiction and the trial is a nullity………” 20.The reason behind the provision for the succeeding court re-call a witness who have already testified before another court is to enable the succeeding court assess the demeanor and credibility of witness. In Kilwake v Republic [2019] KECA 5 (KLR) the Court of Appeal stated that:The rationale behind section 200(3) is to ensure that the case is determined, as much as is practicable, by a judge or magistrate who had the opportunity of hearing and seeing the witnesses as they testified, so as not to lose the advantage of observing their demeanor and assessing their credibility. That fact was emphasized by this Court in Ndegwa v Republic (1985) KLR 535 when it stated:“It could also be argued that the statutory and time honoured formula that the trial magistrate being the best person to do so, he should himself see, hear, assess and gauge the demeanor and credibility of witnesses. It has been and will be so in other cases that will follow. In this case, however, the second magistrate did not himself see and hear all the prosecution witnesses even though he said that he carefully "observed" the evidence given by the prosecution witnesses. He therefore was not in a position to assess the personal credibility and demeanor of all the witnesses in the case. A fatal vacuum in this case in our opinion...for these reasons we have stated, in our view the trial was unsatisfactory.”(See also David Geoffrey Gitonga v Republic [2016) eKLR and Abdi Adan Mohamed v Republic [2017). 21.In the case against the Appellant, the magistrate who convicted him did not hear the evidence of two of the witnesses for the prosecution – the complainant and her mother. The complainant was a very crucial witness in the case. She was the sole witness that the Appellant defiled her. It was therefore very important for the court to explain to the Appellant/Accused whether he wanted the witness to be recalled. It was for the Appellant/Accused to inform the court upon the court explaining to him the provisions of the section whether he wanted to have the witnesses recalled or not. The court even after making an order for the case to start afresh did not have the case start afresh but continued with the case from where it had reached. In effect, the court violated the right of the Appellant to fair hearing. 22.In view of the mandatory nature of the provisions of section 200(3) of the Criminal Procedure Code and the failure by the trial court to comply with its provisions, it is my finding that the trial in the case against the Appellant was vitiated and thus a nullity. 23.Having come to the above finding, the question is whether I should order a retrial. The principles governing whether or not a retrial should be ordered were stated 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.” 24.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.” 25.From the above authorities, it is pertinent that a trial will only be ordered where the interests of justice so require. Each case must depend on its particular facts and circumstances. An important factor to be considered is whether on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. Other factors that the court is required to consider include the length of time the trial has taken and whether witnesses are readily available. 26.The offence in this case was said to have been committed in September 2023. There is no reason why witnesses should not be available. On consideration of the potentially admissible evidence, it is my view that the prosecution had a strong case against the Appellant. The Appellant will not suffer any prejudice if he is re-tried of the offence. 27.The upshot is therefore that the appeal is partly successful for the reason that the same was vitiated by failure by the trial court to comply with the provisions of section 200(3) of the Criminal Procedure Code and the trial was thus a nullity. However, the interests of justice in the case require that I order a re-trial. Consequently, I declare the trial to have been a nullity and order that the Appellant be retried of the offence before another magistrate of competent jurisdiction other than Hon. R.C. Mwachi. Orders accordingly. DELIVERED, DATED AND SIGNED AT GARSEN THIS 8TH MAY 2026J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch HB for Ms Ngina Mutua for RespondentAppellant - present virtually at G.K. Prison MalindiCourt Assistant - Nasra