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Court orders retrial of convict jailed for 17 years in sodomy case

By Lynn Kolongei - April 19th 2022

The High Court has ordered a retrial of a convict jailed for 17 years for sodomising his three-year-old son and assaulting him.

IK is said to have done the unnatural act on May 16, 2019, at Riwo, West Pokot County

The trial court in Kapenguria delivered the sentence after it was convinced that IK was guilty. 

In an appeal filed before the High Court in Kapenguria in February, the accused cited lack of a fair and impartial hearing as the major ground for his appeal.

He claimed the trial court denied him an opportunity to cross-examine the victim. 

He added that the evidence tabled in court was inconsistent and that the magistrate failed to evaluate and appreciate the defence case. 

Ruling on the appeal, Justice Weldon Korir noted that the trial court erred resulting in miscarriage of justic, which was prejudicial to IK.

He stated that after the magistrate found that the complainant was incapable of giving sworn testimony, he proceeded to the minor’s unsworn evidence but ignored the appellant's request to cross-examine the witness. 

“The record does not indicate that the appellant was given an opportunity to cross-examine the witness and he declined to do so. It can therefore be implied that the appellant was not afforded an opportunity to cross-examine the complainant,” ruled Justice Korir. 

Justice Korir further stated that the whole court process that found the appellant guilty was a mistrial. 

The judge noted that although the charges facing IK were serious, the injuries suffered by the victim were also serious. He further said that the complainant was young and a vulnerable member of the society who deserves the protection of the court, therefore the ends of justice could only be met if a proper trial was held. 

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