Defilement suspect to be tried afresh, jail term set aside

The High Court in Kisii has set aside a 30-year jail term handed to a defilement suspect and ordered a retrial of the case.

Justice Headwig Ong'udi ordered that Barnard Ratemo Nyamweya be tried afresh before a different magistrate in Kisii.

The decision follows a revelation that Nyamweya was not allowed to call in witnesses during his trial.

“I, therefore, set aside the conviction and sentence and order for a retrial before a competent court other than the one that presided over by Stephen Onjoro or Wahinya Kugwa," Justice Ong'udi ruled. 

Nyamweya was charged that on August 26, 2020, in Kisii Central sub-county within Kisii County, defiled a girl aged eight years. He also faced an alternative charge of committing an indecent act with a child.

The matter was initially heard by the then Kisii Resident Magistrate Onjoro who put the appellant to his defence on March 19, 2021.

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Justice Ong'udi heard that Mr Onjoro was not able to finalize the matter. The same was reallocated to Kugwa on May 4, 2022, and placed before Chief Magistrate Stella Abuya.

The appellant denied the charges before the case went to a full hearing.

The prosecution called four witnesses before closing its case on February 17, 2021. On March 19, 2021, Onjoro placed the appellant to his defence.

Four witnesses

The appellant elected to give a sworn statement of defence with four witnesses to call. He testified on June 2, 2021, while his first witness testified on November 23, 2021.

An adjournment was granted on January 26, 2022 for him to call his remaining witnesses. Nyamweya stopped coming to court and a warrant of arrest was issued against him and a summons for his surety.

He was finally presented to the court under a warrant of arrest on August 2, 2022. In the meantime, the matter had on May 4, 2022, been re-allocated to resident magistrate Kugwa.

Nyamweya's bond was cancelled on August 2, 2022 before he was remanded, awaiting determination of his case.

The court further directed those submissions to be heard on Sptember 6, 2022. Finally, submissions were filed and a judgment date for November 28, 2022 issued on November 8, 2022.

Nyamweya was convicted and sentenced to serve 31 years’ imprisonment. He filed an appeal on June 9, 2023.  

Judge Ong'udi ruled that the matter should be heard and determined within six months from the date of the judgement, on December 22, 2023.

In the event of a conviction, the trial court must consider while sentencing, the period the appellant was in custody and prison, the judge said.