[2013] KEHC 469 (KLR)
The High Court found that the trial court failed to comply with mandatory procedural requirements, specifically the absence of voire dire examination for the child complainant and failure to indicate the language used by witnesses. These omissions constituted fundamental irregularities that undermined the fairness...
Source-derived case information.
- Citation
- [2013] KEHC 469 (KLR)
- Parties
- Appellant: Musili Mwinzi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 58 of 2013
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- Appeal allowed; conviction and sentence set aside; retrial ordered.
- Legal Topics
- Sexual Offences Act Procedure, Voire Dire Examination, Trial Irregularities, Retrial Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musili Mwinzi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial court complied with mandatory procedural requirements, including voire dire examination for a child witness.
- 2 Whether the failure to indicate the language used by witnesses and to comply with section 211 of the Criminal Procedure Code rendered the trial unfair.
- 3 Whether the conviction and sentence could stand in light of procedural irregularities.
Ratio Decidendi
The High Court found that the trial court failed to comply with mandatory procedural requirements, specifically the absence of voire dire examination for the child complainant and failure to indicate the language used by witnesses. These omissions constituted fundamental irregularities that undermined the fairness of the trial. The court held that such procedural lapses could not be cured on appeal and that justice required the matter to be remitted for retrial before a different judicial officer. The court refrained from addressing the substantive grounds of appeal to avoid prejudicing the retrial.
Court Disposition
Appeal allowed; conviction and sentence set aside; retrial ordered.
Orders
- The case is remitted to Mwingi Principal Magistrates Court for mention and hearing before a different judicial officer.
- The appellant to be retried in accordance with the law.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL APPEAL NO 58 OF 2013
MUSILI MWINZI……………………………………………………………………APPELLANT
VERSUS
REPUBLIC………………………………………………………………………………RESPONDENT
From the original conviction and sentence of the Acting Senior Resident Magistrate (V.A. Otieno) at Mwingi in Criminal Case No. 191 of 2012
JUDGEMENT
Musili Mwinzi, the appellant, was charged in the lower court at Mwingi with attempted defilement contrary to section 9(1)(2) of the Sexual Offences Act. The particulars read that on 22nd March 2012 at [particulars withheld], Location, in Mwingi in East District within Kitui County attempted to commit an act which could have caused his male genital organ namely penis to penetrate the genital organ namely vagina of E M M a child aged 8 years.
He faced an alternative count of committing an indecent act contrary to section 11(1) of the Sexual Offences Act to the same child at the same date and place as in the main charge.
The facts of this case can be briefly summarized that E M M, a girl aged 8 years, PW2, was on 22nd March 2012 sent to look for a donkey. It is alleged that she was stopped by the appellant who grabbed her by the hand and dragged her to some thicket where he removed her underpants, pushed her to the ground and defiled her. She informed K M, PW3, who was staying with her as her mother A M, PW1, was away in Nairobi at the time.
PW3 noticed that the girl was crying and her dress had blood stains. PW2 reported the matter to the chief, Jeremia Muthui, PW4. The matter was reported to the police leading to the arrest of the appellant and the charge.
The appellant was tried and found guilty by the Acting Senior Resident Magistrate at Mwingi and sentenced to life imprisonment. He is aggrieved by the conviction and sentence and has, through his counsel Mr. Nzili, filed this appeal. By a petition of appeal filed on 13th May 2013 the appellant is challenging that the conviction is against the weight of the evidence and failure to consider defence case.
On 7th May 2013, the appellant had prepared homemade grounds of appeal in which he seems to advance the defence that the complainant was not defiled but fell from a tree and injured herself.
Both the appellant and the respondent opted to go by way of written submissions and leave the court to read, consider the same and give a judgement. While reading the proceedings in preparation for writing this appeal I came across flaws in the record of the lower court that necessitated by addressing them first.
I have noted that the language used by the witnesses is not indicated; that the complainant who was aged 8 years at the time of the trial was not subjected to a voire dire examination in compliance with section 19(1) of the Oaths and Statutory Declarations Act (Cap 15). The trial magistrate recorded as follows:
PW2 FEMALE CHILD
I am 8 years old. I go to school in [particularswithheld] in Class 3. I know the accused………
The child continued with her testimony after which the record shows there was cross examination!
At the close of the prosecution case, the trial magistrate recorded thus:
Court: The evidence on record is sufficient to have the accused placed on his defence and its accordingly ordered as such.
Defence hearing on 22. 1.2013
It seems however that the defence hearing was taken on 11th January 2013 when the trial court went straight away to the hearing. There is no indication whether section 211 Criminal Procedure Code was complied with but the appellant gave a sworn statement and was cross examined. He also called two witnesses to support his case.
The trial court flouted procedure and handled the matter in a casual manner. A judicial officer owes a duty to the victim of the crime he/she is trying and to the suspect of such crime. These are competing rights and both victim and accused expect justice to be done. A courts of law and judicial officers manning these courts must ensure justice is done. The manner a case is handled in court is part of the justice chain. It is like a conveyor belt starting from the time the crime is committed until the trial is finalized and the accused either jailed or acquitted.
In this case, the trial court did not play its crucial role in handling this case the way procedure dictates. In my view it is a good case for retrial. I have restrained myself from commenting on the issues raised on appeal to avoid prejudicing any party. I direct that this case be remitted back to Mwingi Principal Magistrates Court for mention with a view to taking a hearing date preferably before a different judicial officer.
A word of caution, being careful in the manner we handle our work as judicial officers can save us some valuable judicial time. We cannot be so busy as to give some attention to the cases before us to avoid careless mistakes that ought not to have happened in the first place.
I make orders accordingly.
Dated, signed and delivered this 2nd December 2013.
S.N.MUTUKU
JUDGE