[2023] KEHC 26286 (KLR)

Ondieki v Republic (Criminal Appeal E029 of 2023) [2023] KEHC 26286 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26286 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E029 of 2023

KW Kiarie, J

December 7, 2023

Between

William Moseti Ondieki

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O.A case No.41 of 2019 of the Senior Principal Magistrate’s Court at Ogembo by Hon. P. Biwott–Senior Principal Magistrate)

Judgment

1. William Moseti Ondieki, the appellant herein, was convicted of the offence of rape contrary to section 3(1) (a) (b) (3) [sic] of the Sexual Offences Act No 3 of 2006.

2. The particulars of the offence were that on the 2nd day of April 2019 in Sameta Sub-County within Homa Kisii County, intentionally and unlawfully caused his penis to penetrate the vagina of EG, without her consent.

3. The appellant was sentenced to serve fifteen years imprisonment. He was aggrieved and has appealed against both conviction and sentence. He was in person. He raised grounds of appeal as follows:a.That the trial magistrate failed in both law and facts by convicting the appellant without observing that the offence of rape was not proved beyond reasonable doubt.b.That the learned trial magistrate failed in both matters of law and facts despite the glaring contradictions and inconsistences thus making his conviction unsafe.c.That the learned trial magistrate failed in both law and facts by convicting the appellant without considering the general circumstances on the offence.d.That the trial magistrate further erred in both law and facts by convicting the appellant without considering the investigation report tendered in court was shoddy and scanty.

4. The prosecution, through Akelo Job Cletus prosecution counsel, conceded the appeal on grounds that section 200 (3) was not complied with when Hon. P. Biwott took over from Hon. Gloria N. Barasa.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

6. Section 200 (3) of the Criminal Procedure Code provides: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 resummoned and reheard and the succeeding magistrate shall inform the accused person of that right.

7. The record indicates that hon. P Biwott took over the conduct of this case on January 4th 2022 but did not comply with section 200 (3) of the CPC. The Court of Appeal in the case of Henry Kailutha Nkarichia & another v Republic [2015] eKLR had the following to say on failure to comply:The requirement that the court inform the accused of the right to recall witnesses is plain, admitting to no obscurity. The duty on the court is mandatory and a failure to comply with it wholly vitiates the trial since it goes to the very heart of an accused person’s right to a fair trial. We need do no more than reiterate what we recently stated in David Kimani Njuguna –vs- Republic, Nakuru Criminal Appeal No 294 Of 2010 after a review of several decisions of this Court on the subject;“All of these decisions declare that the provisions of Section 200 (3) [of the Criminal Procedure Code] are mandatory and a succeeding Judge or Magistrate must inform the accused person directly and personally of his right to recall witnesses. It is a right exercisable by the accused person himself and not through an advocate and a Judge or magistrate complies with it out of statutory duty requiring no application on the part of an accused person. Further, failure to comply by the court always renders the trial a nullity.

8. The non-compliance vitiated the trial. I, therefore, quash the conviction and set aside the sentence. I direct that the appellant be presented before a magistrate of competent jurisdiction in Ogembo, other than hon. Biwott within fourteen days of the date hereof forpurposes of taking a plea to be followed by an expeditious retrial.

DELIVERED AND SIGNED AT HOMA BAY THIS 7thDAY OF DECEMBER 2023KIARIE WAWERU KIARIEJUDGE