[2020] KEHC 2730 (KLR)
The court found that the failure to conduct voire dire examination of the child victim, who was a key witness and of tender years, was a fundamental procedural irregularity. This omission vitiated the entire trial, rendering the conviction and sentence unsafe. Both parties agreed that a retrial was appropriate. The...
Source-derived case information.
- Citation
- [2020] KEHC 2730 (KLR)
- Parties
- Appellant: William Okello Awich; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 68 of 2019
- Procedural Posture
- Criminal Appeal / Judgment on Appeal
- Outcome
- conviction quashed; retrial ordered
- Judges
- RE Aburili
- Legal Topics
- Defilement, Sexual Offences Act, Voire Dire Examination, Child Witness, Conviction Quashed
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Okello Awich
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on Appeal
Legal Issues
- 1 Whether failure to conduct voire dire examination of a child witness vitiates the trial.
- 2 Whether the conviction and sentence should be quashed due to procedural irregularity.
Ratio Decidendi
The court found that the failure to conduct voire dire examination of the child victim, who was a key witness and of tender years, was a fundamental procedural irregularity. This omission vitiated the entire trial, rendering the conviction and sentence unsafe. Both parties agreed that a retrial was appropriate. The court therefore quashed the conviction and set aside the sentence, ordering a retrial before a different magistrate to ensure compliance with the law and the rights of the accused.
Court Disposition
conviction quashed; retrial ordered
Orders
- The conviction of the appellant is quashed.
- The sentence of life imprisonment is set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL 68 OF 2019
WILLIAM OKELLO AWICH...............................................APPELLANT
VERSUS
REPUBLIC...........................................................................RESPONDENT
(Being an Appeal arising from Judgment, conviction and sentence vide Criminal (SO) Case No. 01 of 2019 at SRM’s Court at Ukwala dated 21. 8.2019 before Hon. C.I. Agutu, Senior Resident Magistrate)
JUDGMENT
The Appellant William Okello Awich was charged with the offence of defilement contrary to Section 8(1) as read with section 8 (2) of the Sexual Offences Act. He pleaded not guilty.
1. After full trial, he was convicted and sentenced to life imprisonment. The victim of defilement was a child aged 7 years.
2. On giving directions on appeal, it is observed that PW2 who is a child of tender years and the victim of the offence was never taken through Voire dire examination as required by law. That in itself vitiates the trial of the appellant.
3. The Prosecution requests for a retrial and the appellant does not object. In the premises, I find it necessary to determine this appeal on a preliminary point of law instead of wasting judicial time.
4. I quash the conviction of the appellant and set aside the life imprisonment imposed on him by the trial court. In its place, I order that the appellant be held in custody but he shall be retried by Ukwala SRM’s court before another Magistrate other than Hon. C.I. Agutu.
5. The trial court file to be placed before Ukwala SRM forthwith and Mention on 8/10/2020 for directions.
6. This file is closed.
7. Prosecution to take note.
8. Orders accordingly.
Dated, signed and Delivered at Siaya this 5th Day of October, 2020
R.E. ABURILI
JUDGE
In the Presence of:
Appellant present virtually via Microsoft Teams from Prison
Mr. Okachi, Senior Principal Prosecution Counsel for State
Court Assistants: Brenda and Modestar