[2013] KEHC 1740 (KLR)
The court found that the appellant was not given the opportunity to cross-examine the complainant, a violation of Article 50(k) of the Constitution, which guarantees the right of an accused person to challenge evidence. The court emphasized that even when the witness is a child or otherwise vulnerable, the right to...
Source-derived case information.
- Citation
- [2013] KEHC 1740 (KLR)
- Parties
- Appellant: Peterson Mureithi Njeru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 114 of 2011
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; retrial ordered
- Judges
- DAS Majanja
- Legal Topics
- Defilement, Sexual Offences Act, Right to Fair Trial, Cross Examination, Child Witness, Retrial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peterson Mureithi Njeru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant's right to cross-examine the complainant was violated.
- 2 Whether the conviction and sentence could stand in light of the procedural irregularity.
Ratio Decidendi
The court found that the appellant was not given the opportunity to cross-examine the complainant, a violation of Article 50(k) of the Constitution, which guarantees the right of an accused person to challenge evidence. The court emphasized that even when the witness is a child or otherwise vulnerable, the right to cross-examination must be preserved, with the court providing appropriate safeguards as required by law. The failure to allow cross-examination constituted a fundamental procedural irregularity, rendering the conviction unsafe. Consequently, the appeal was allowed and a retrial ordered.
Court Disposition
appeal allowed; retrial ordered
Orders
- The appeal is allowed.
- A retrial of the appellant is ordered.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 114 OF 2011
BETWEEN
PETERSON MUREITHI NJERU ..........……...………….. APPELLANT
AND
REPUBLIC ………………………………............……….. RESPONDENT
(Being an appeal from the original conviction and sentence in Siakago Criminal Case 767 of 2010 by S.M. Mokua P.M on 6th July, 2011)
JUDGMENT
The appellant faced two charges in the subordinate court, the first one was that of defilement contrary to section 8(1) and (3) of the Sexual Offences Actand an alternative charge of indecent assault of a child contrary to section 11(1) of the Sexual Offences Act. The appellant was convicted on 6th July 2011 of offence of defilement and imprisoned for a period of 20 years. He now appeals against conviction and sentence.
The brief facts are that between 29th August 2010 and 1st September 2010, PW1’s mother reported the loss of her daughter SW to the police at Gachoka police patrol base. Through a tip off from members of the public, the parents were informed PW1 was in the appellant’s house. Police proceeded to the accused’s house where they found the appellant with the child in the house. He was arrested and taken to Gachoka Police Patrol Base.
The first witness to testify was the child, PW 1, who gave unsworn testimony after a voire dire examination. She testified how she was lured by the appellant to his house and locked up and how the appellant later had sexual intercourse with her. On the basis of this evidence and corroborating evidence the appellant was convicted.
The record does not show that the appellant was given the opportunity to cross-examine or put questions to PW 1. This is a violation of Article 50(k) of the Constitution which protects the right of every accused person to challenge evidence against him. Even where the victim is young or vulnerable the right to challenge evidence through cross-examination should not be denied. It is for the court to provide sufficient safeguards to the vulnerable witness under section 31 of the Sexual Offences Act.
The appeal is accordingly allowed on that basis and a retrial of the appellant ordered. The appellant shall be taken forthwith to plead before the Magistrates Court.
DATED, SIGNEDand DELIVERED at EMBU this 30th day of October 2013
D. S. MAJANJA
JUDGE