https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6240

Nguwa v Republic (Criminal Appeal E121 of 2024) [2026] KEHC 6240 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6240 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E121 of 2024 JN Njagi, J May 8, 2026 Between Mwandenge Nguwa Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon.E. K. Usiu, Chief Magistrate in Malindi Chief Magistrate’s Court Sexual Offence Case No.12 of 2017 delivered on 22/6/2023) Judgment 1.The appellant was convicted for the offence of incest contrary to section 20(1) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 24 years imprisonment. The particulars of the offence were on 16th November 2016 at (name withheld) area in Malindi Sub County within Kilifi county he intentionally and unlawfully caused his penis to penetrate the vagina of L.S. (herein referred to as the complainant/victim), a child aged 4 years knowing that she was his niece. 2.The Appellant was aggrieved by the conviction and the sentence and lodged the instant appeal on the ground that the learned trial magistrate erred in law by failing to comply with the provisions of section 200 of the Criminal Procedure Code thereby violating the Appellant`s right to fair trial thereby rendering the whole trial a nullity. 3.The prosecution called 5 witnesses in the case while the Appellant testified and called one witness. Case for prosecution 4.The case for the prosecution was that the victim herein was at the material time a nursey school pupil aged 4 years. She was staying with her mother who did not testify in the case. Her father testified as PW4 in the case. The Appellant was a brother to the victim`s mother. The victim was therefore his niece. 5.It was the evidence of the victim that on 16/11/2016 she was in the company of two other children, Mlongo and Chombo in a tuk tuk vehicle of the Appellant. They were going to collect water with the tuk tuk. She was seated with the Appellant at the front seat of the tuk tuk. While the other children were seated at the back seat of the tuk tuk. That on the way the Appellant stopped the tuk tuk. He removed her skirt and panties. He then lowered his trousers and inserted his penis into her vagina. She felt pain and screamed. Mlongo who was at the back of the tuk tuk went and assisted her. He carried her and took her home. They found her mother at home. She was bleeding from her vagina. The Appellant took them to hospital on the tuk tuk. She was treated and they returned home. 6.A brother to the victim, Daniel Shanga PW2 then aged 12 years testified that he was on the material day at 5pm in the tuk tuk of the Appellant. They were going to collect dry coconut. The victim was seated at the front of the tuk tuk with the Appellant. That on the way the victim fell off the tuk tuk. The tuk tuk stopped ahead. He went and picked the victim. She had been injured in her vagina. She was bleeding. The Appellant said that the victim had been pricked by a stick where she had fallen but he PW2 did not see any stick at the place she had fallen. He took her to his mother about 50 meters away. His mother took the victim to hospital. He later went to the police and gave out a statement. 7.Jessica Mulongo PW3 then aged 11 years testified that on the material day she was in the tuk tuk of the Appellant. She was at the back of the tuk tuk with Chombo and Ponyi Terry. The victim herein was seated at the front of the tuk tuk. The Appellant was driving the tuk tuk. That on the way the victim fell off the tuk tuk and started bleeding from her vagina. Chombo picked her and they went home. They were asked what had happened to the victim and they answered that she fell down. 8.The father to the victim PW4 testified that he was on the 16/12/2016 telephoned by a person called Mwakamsho and informed that his daughter, the victim herein, had been involved in a motor tricycle accident and injured in her private parts. He instructed that she be taken to Malindi hospital. She was taken. On the following day at 3pm he saw the child with a swelling on the thigh. On 18th the child was taken back to hospital. A doctor examined her and told them that she had been defiled. 9.A clinical officer at Malindi sub county hospital PW6 testified that the victim went to hospital with a history of defilement. That the incident was reported 7 days after the alleged act. She was found with a broken hymen, vaginal bleeding with swollen labia that were tender. The clinical officer completed her P3 form. 10.The case was investigated by a police officer who left Malindi police station and handed over the investigation file to PC Nicholas Mbithe PW4. The Appellant had already been charged with the offence. 11.During the hearing of the case in court, the clinical officer PW6 produced the victim`s treatment notes, P3 form, Post Rape Care form and lab results as exhibits, P.Exh.1 - 4 respectively. Defence case 12.In his defence the Appellant stated in a sworn statement that on the 16/11/2016 he was at home when his uncle told him to call for a tuk tuk to fetch water. He went to the tuk tuk driver who handed over the tuk tuk to him. He went with the tuk tuk to fetch the water. On the way he was moving at a slow speed when children boarded the tuk tuk without his knowledge. When he got home one child fell down and was injured. He and the driver of the tuk tuk took the child to hospital. The child was treated and discharged. Later he was summoned by the police and he was told that he defiled a child. He denied. 13.The Appellant further stated in cross-examination that he is not related to the child. That her parents are his neighbours for a long time. He denied that the child is his niece. He admitted that the child knows him. 14.The Appellant`s witness, Charo Morube DW2 testified that at the material time he was a worker at the home of the Appellant. That in the month of November on a date he could not remember at 5pm he was from work at the Appellant`s place. He needed water for use on the following day. He sent the Appellant to call a tuk tuk driver to fetch the water. The Appellant went and came back with a tuk tuk. In the tuk tuk were 3 children hanging without the knowledge of the Appellant. At the gate a neighbour`s child jumped off and fell down on her buttocks. He ran and informed the Appellant. He lifted up the child. She had sustained a bruise on the thigh. He asked the Appellant to call the mother to the child. The mother went there and saw the injury on her child. They took the child to hospital. Submissions 15.The only ground of appeal raised by the Appellant is that the convicting magistrate did not comply with section 200(3) of the Criminal Procedure Code when she took over the case from Dr. Julie Oseko. The Appellant submitted that section 200(3) is mandatory. That there having been no compliance with the said section the trial was a nullity. The Appellant relied on the case of Office of Director of Public Prosecutions v Peter Onyango Odongo & 2 others (2015) eKLR, where Justice Makau stated that: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. 16.The Appellant in the same respect relied on the case of Paul Ochieng Omollo v Republic (2018) eKLR where Cherere J. stated that:I agree with both the appellant and the state that failure by the learned magistrate to comply with section 200(3) of the Criminal Procedure Code vitiated the appellant’s trial and without delving into the other grounds of appeal find that the net effect of this omission was to render the entire trial a nullity. 17.It was further submitted that due to non-compliance with section 200(3) there is no need for the court to re-evaluate the evidence adduced before the lower court. On this proposition the Appellant relied on the Paul Ochieng Omollo case (supra) where the court continued to hold that:I need not belabour the point that the appellant’s trial was a nullity and for this reason there is no need to consider the rest of the grounds of appeal; for the same reason there is no basis upon which this court can consider the evidence adduced at the trial and come to its own conclusions, as it always ought to whenever exercising its appellate jurisdiction. If the trial was a nullity, there is in effect no evidence to reconsider. 18.The appellant urged the court to find that the trial was a nullity due to failure by the trial court to comply with the provisions of section 200(3) of the Criminal Procedure Code. Additionally, that it would not be in the interests of justice for this court to order a retrial for the reason that he has been in custody since 19th January 2023 and has thus spent a substantial amount of time in prison. The Appellant in this respect relied on the principles reiterated in the case of Samuel Wahini Ngugi v Republic (2012) eKLR that a retrial should only be ordered where the ends of justice would be served by an order of retrial. Respondent`s submissions 19.The prosecution counsel on the other hand submitted that all the ingredients of the offence were established by the prosecution. That the trial court found that the prosecution had established from the evidence of the victim`s father PW4 that the Appellant was an uncle to the victim. That the court found that there was penetration based on the evidence of the complainant and the findings in the medical report. However, that it should be noted that PW2 and PW3 said that the victim fell off the moving tuk tuk and was bleeding from her vagina contrary to the evidence of the victim that the Appellant removed his penis and penetrated her vagina. 20.It was submitted that the trial court stated that the age of the victim was 4 years which was captured in the P3 form. However, that there was no birth certificate produced and though the trial court made a finding that voir dire examination was conducted and the victim determined to be of tender years, the convicting magistrate is not the one who handled the matter when the victim testified. More so that the questions put to PW2 and PW3 during voir dire examination were not recorded. All the same it was urged that the conviction and the sentence be upheld. Analysis and determination 21.This being a first appeal, this court is mandated to analyse 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.” 22.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.” 23.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 a duty to inform the accused of his right to recall witnesses who have already testified. In this case, the convicting magistrate took over the case from the preceding magistrate after PW1, 2, 3 and 4 had testified. The record of the trial court shows that the learned trial magistrate on taking over the case did not comply with the provisions of section 200(3) of the Criminal Procedure Code. The question then is whether the failure to do so vitiated the trial. 24.The Appellant has cited authorities that postulate that failure to comply with the said provisions renders the trial a nullity. These include the cases of Office of Director of Public Prosecutions v Peter Onyango Odongo & 2 others and Paul Ochieng Omollo v Republic (supra). In the latter case the court cited 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…..” 25.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………” 26.The reason behind the provision for the succeeding court re-hearing the evidence of witnesses who have already testified before another court is to enable the succeeding court assess the demeanor and credibility of witnesses. 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) 27.In the case against the Appellant, the magistrate who convicted him did not hear the evidence of the most critical witnesses in the case, i.e PW1, PW2, PW3 and PW4. She was therefore not in a position to assess their credibility and demeanor. The magistrate failed to inform the Appellant of his right to recall and re-hear the said witnesses as required by section 200(3) of the Criminal Procedure Code which is a mandatory requirement under that section. It is clear from the authorities cited above that it is settled law that failure to comply with section 200(3) of the Criminal Procedure Code renders a trial a nullity. It is therefore my finding that the trial in the case against the Appellant was vitiated and thus a nullity for failure by the trial court to comply with section 200(3) of the Criminal Procedure Code. 28.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.” 29.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.” 30.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. One of the factors to be considered is whether on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. 31.The testimony of the victim in this case was that the Appellant was driving the tuk tuk in which she was travelling in. That she was seated with the Appellant at the front of the tuk tuk. That the Appellant stopped the tuk tuk, removed her skirt and underpants. He then lowered his trousers to his knees, placed her on his thighs and inserted his penis into her vagina. However, the other minors who were at the back of the tuk tuk who included PW2 and PW3 testified that the victim fell off the tuk tuk and was injured in her vagina. Of these two witnesses, PW2 was the elder brother of the victim. He was aged 12 years. PW3 was aged 11 years while the victim was aged 4 years. The incident was said to have taken place at 5 pm which means that it was in broad day light. How come then that PW2 and PW3 did not see the Appellant inserting his penis into the victim`s vagina? In view of the disparity between the evidence of the victim on one hand and the evidence of PW2 and PW3 on the other hand as to how the victim received the injuries, it is highly unlikely that a conviction might result if a re-trial is ordered. It is in the circumstances pointless to order a retrial. 32.The upshot is therefore that I find merit in the appeal. Consequently, the conviction entered by the trial court against the Appellant is quashed and the sentence thereof set aside. I order the Appellant be set at liberty forthwith unless lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 8TH DAY OF MAY 2026.J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch holding brie3f for Ms Ngina Mutua for RespondentAppellant - present virtually at G.K. Prison MalindiCourt Assistant: Nasra