Thomas Kimani Kinuthia v Republic [2019] KEHC 3386 (KLR)
- Court
- High Court of Kenya
- Case number
- 3386
- Citation
- [2019] KEHC 3386 (KLR)
The conviction is quashed and the sentence set aside. The appellant shall be retried by a different magistrate.
Facts
The appellant was charged with defilement and indecent act with a child. The prosecution alleged that the appellant took a 13-year-old class 2 mentally challenged child to his house, removed her clothes, and inserted his penis into her vagina. The child was examined and found to have a discharge, a fresh tear on the hymen, and her pant was soiled with a clear fluid.
Issues
- Non-compliance with Section 200(3) of the Criminal Procedure Code
- Violation of the appellant's right to a fair trial
- Failure to recall witnesses
Reasoning
The court found that the appellant's right to a fair trial was violated due to the non-compliance with Section 200(3) of the Criminal Procedure Code, which requires informing the accused of the right to demand that witnesses be resummoned and reheard. The court ordered a retrial.
Outcome
Conviction and sentence quashed
Orders
- Quash conviction and set aside sentence
- Present appellant to Kiambu Chief Magistrate's Court for retrial by a different magistrate
Remedies
- Retrial
Authorities cited
Legislation (2)
- Criminal Procedure Code
- Constitution of Kenya 2010
Cases cited (1)
- Ndegwa v Republic
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