NMG v Republic [2020] eKLR Case Summary

Court
High Court of Kenya at Embu
Category
Criminal
Judge(s)
Hon. A. Mshila
Judgment Date
October 01, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the NMG v Republic [2020] eKLR case summary, highlighting key legal principles and outcomes. Ideal for legal students and practitioners seeking insight into recent judicial decisions.

Case Brief: NMG v Republic [2020] eKLR

1. Case Information:
- Name of the Case: NMG v. Republic
- Case Number: Criminal Appeal No. 44 of 2018
- Court: High Court of Kenya at Embu
- Date Delivered: October 1, 2020
- Category of Law: Criminal
- Judge(s): Hon. A. Mshila
- Country: Kenya

2. Questions Presented:
The central legal issue presented for determination by the court is whether this case is suitable for ordering a retrial of the appellant, NMG, who was convicted of incest.

3. Facts of the Case:
The appellant, NMG, was charged with incest contrary to Section 20(1) of the Sexual Offences Act No.3 of 2006, and an alternative charge of committing an indecent act with a child, contrary to Section 11(1) of the same Act. The incident occurred on May 4, 2015, in Kirigi sub-location, Embu County, where NMG allegedly penetrated the genital organs of his 3-year-old daughter, GM. The trial court convicted him and sentenced him to twenty years of imprisonment. NMG appealed the conviction and sentence, raising nine grounds of appeal, including claims of procedural irregularities and insufficient evidence.

4. Procedural History:
The case progressed from the trial court, where NMG was convicted and sentenced, to the High Court on appeal. During the appeal, NMG was represented by Mr. Njoroge, while the state was represented by Ms. Chemenjo. The appellant's counsel made oral submissions, and the state relied on written submissions. The appellate court identified a single issue to consider: whether a retrial should be ordered.

5. Analysis:
Rules:
The court referred to Section 31(2) of the Sexual Offences Act, which outlines the procedure for declaring a witness as vulnerable and the need for proper application and appointment of an intermediary prior to the testimony of such a witness.

Case Law:
The court cited the case of MM v. Republic (NRB CRA Case No. 41 of 2013), which established that the appointment of an intermediary must precede the testimony of the vulnerable witness. This precedent was relevant to the appellant's claim that he was denied a fair trial due to procedural missteps in the trial court.

Application:
The court noted that the trial court failed to follow the correct procedure in appointing the mother of the victim as an intermediary after she had already testified. This error deprived the appellant of the opportunity to cross-examine her in her role as an intermediary, constituting a violation of his right to a fair trial. The court determined that the defects in the trial warranted a retrial, emphasizing that the appellant had already been incarcerated for two years and would not suffer prejudice from a retrial.

6. Conclusion:
The High Court quashed the conviction and set aside the sentence of twenty years. It ordered a retrial before a subordinate court with competent jurisdiction, finding that there were valid reasons to support a retrial and that it was in the best interest of justice.

7. Dissent:
There were no dissenting opinions noted in the judgment.

8. Summary:
The High Court of Kenya in NMG v. Republic found sufficient grounds to order a retrial due to procedural irregularities that affected the appellant's right to a fair trial. The court quashed the previous conviction and sentence, emphasizing the importance of adhering to proper legal procedures in cases involving vulnerable witnesses. The decision underscores the judicial system's commitment to ensuring fair trials and the proper administration of justice.

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