Case ID:169724

Josphat Mutwiri Anampiu v Republic [2021] eKLR

Case Metadata

Case Number:

Criminal Appeal 50 of 2020

Parties:

Josphat Mutwiri Anampiu v Republic

Date Delivered:

04 Feb 2021

Case Class:

Criminal

Court:

High Court at Kisumu

Case Action:

Judgment

Judge(s):

Thripsisa Wanjiku Cherere

Citation:

Josphat Mutwiri Anampiu v Republic [2021] eKLR

Advocates:

Ms. Mbithe for the State -

Case History:

(Being an appeal against judgment, conviction and sentence in Tigania Criminal Case No. 2354 of 2015 by Hon. P.M. Wechuli (RM) on 28th May, 2020)

Court Division:

Criminal

County:

Kisumu

Advocates:

Ms. Mbithe for the State -

History Docket No:

Criminal Case 2354 of 2015

History Magistrate:

Hon. P.M. Wechuli - RM

History Advocates:

One party or some parties represented

History County:

Meru

Case Outcome:

Appeal allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

(

CORAM: CHERERE-J

)

CRIMINAL APPEAL NO. 50 OF 2020

BETWEEN

JOSPHAT MUTWIRI ANAMPIU........................................APPELLANT

AND

REPUBLIC...........................................................................RESPONDENT

(Being an appeal against judgment, conviction and sentence in

Tigania Criminal Case No. 2354 of 2015 by Hon. P.M. Wechuli (RM) on 28

th

May, 2020)

JUDGMENT

Background

1.

JOSPHAT MUTWIRI ANAMPIU

(

Appellant

) has filed this appeal against his conviction and sentence on the first charge of rape contrary to section 3(1)(a) and (b) as read with subsection 3 of the Sexual Offences Act (

the Act

) and the second charge of assault causing actual bodily harm contrary to Section 251 of the Penal Code. The offences were allegedly committed against

CK

on 11

th

October, 2015.

2. At the conclusion of the trial, the Appellant was found guilty and convicted of both counts. He was subsequently sentenced to serve ten (10) years’ imprisonment for the offence of rape and two (2) years’ imprisonment for the offence of assault causing actual bodily harm.

The Appeal

3. The conviction and sentences provoked this appeal which was argued by way of submission.

Analysis and Determination

4. This being a court of first appeal, I am guided by the

Court of Appeal’s decision in the case of

Issac Ng'ang’a Alias

Peter Ng'ang'a Kahiga V Republic Criminal Appeal No. 272 OF 2005

which held as follows: -

“

in the same way, a court hearing a first appeal (i.e. a first appellate court) also has duty imposed on it by law to carefully examine and analyze afresh the evidence on record and come to its own conclusion on the same but always observing that the trial court had the advantage of

seeing the witnesses and observing their demeanor and so the first appellate court would give allowance of the same.

5. I have considered the appeal. The record of the trial court reveals as follows:

i. The Appellant was arraigned before the court on 28

th

October, 2015

ii. He pleaded not guilty to both counts and was released on bond

iii. Appellant jumped bail and case was withdrawn under section 87(a) of the Criminal Procedure Code on 26

th

November, 2018

iv. Almost a year later, Appellant was arrested and was presented before the court on 03

rd

June, 2019, and charged afresh

v. The complainant was not recalled to testify on the new charge and only the doctor testified

vi. On the basis of complainant’s evidence on the withdrawn charge, the Appellant was convicted and sentenced

6. From the foregoing summary of the trial, I have come to the conclusion that the trial court erred when it failed to call the complainant to testify on the new charge.

7. The trial is therefore declared a mistrial. The state urged the court to order a retrial which the Appellant is not opposed to.

8. There is no doubt that the crimes committed against the complainant are grave.

9. Consequently, it is hereby ordered:

1. Appellant’s appeal is allowed, the conviction quashed and the sentence set aside

2. The file is sent back to Tigania Magistrate’s Court for retrial before any other magistrate other than Hon. P.M.Wechuli

3. Mention 03.03.2021 at Tigania Magistrate’s Court for directions as to the retrial

DELIVERED AT MERU THIS 04th DAY OF February 2021

T. W. CHERERE

JUDGE

In the presence of-

Court Assistant - Kinoti

Accused - Present in person

For the State - Ms. Mbithe