1.During the hearing of this appeal in which the appellant Oliver Odari is unrepresented by counsel, a number of disturbing irregularities implicating the fairness of his trial emerged. We think they are dispositive of the appeal.
2.The appellant was charged, tried, convicted and sentenced to life imprisonment in the Senior Principal Magistrate’s Court at Kakamega. The charge was defilement of a girl child contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act.
3.It was alleged that on the 8th day of May 2012 at [particulars withheld] Village, Galone Sub-location in Vihiga County, he intentionally and unlawfully caused his penis to penetrate the vagina of ‘MC’ a girl aged 4 years old.
4.The main evidence consisted of the evidence of MC. She was the first witness before the learned trial magistrate and the record of the day starts very abruptly, and records what she told the court thus;
5.The first thing that pops out of this part of the record is the lack of a voir dire, a preliminary examination of a child so young so as to determine whether she was possessed of sufficient intelligence to give cogent, comprehensible testimony and, if so, whether she understood the nature of an oath and the obligation to tell the truth. This latter enquiry is to guide the trial court in determining whether the child witness, a child of tender years, should testify on oath or unsworn. It is a glaring and fateful omission that the trial magistrate did not follow these steps. Indeed, there is no telling whether the words attributed to the child were spoken under oath or not. A related issue is that one cannot tell from the record which language the child was speaking. We need not go into the obvious incongruity of attribution of technical or age-inappropriate language to the child of 4 years. Did she actually say, as the record indicates that “the accused (no name given) put his penis” into her ‘vagina” and that he ‘defiled’ her?
6.We think, with respect, that the record is in a most unsatisfactory state. The learned magistrate ought to have recorded the testimony (if it can so be termed in this case) in the very words used, or as closely to the words used, by the child as possible.
7.When we asked Mr. Okang’o, the learned Senior Principal Prosecuting Counsel what he made of the absence of voir dire, he readily admitted that there ought to have been, stating that without it, the trial court did not even reach the point of deciding whether the child should even have testified, and that she might well have been declared a vulnerable witness and testified through an intermediary.
8.This Court has pronounced itself in clear and consistent terms on the necessity of voir dire before reception of the testimony of children of tender years and we need not cite a multiplicity of cases on the subject. The rationale and process of voir dire was spelt out thus some 40 years ago in Johnson Muiruri v Republic KLR 445;
9.That case was cited by successive benches of this Court sitting in Nyeri in Japheth Mwambire Mbitha v Republic eKLR and more recently in Patrick Kathurima v Republic eKLR in which it was stated, and bears repeating that;
10.The failure to conduct a voir dire on the part of the trial court had the effect of inflicting an infirmity on the testimony, if that it was, of PW1 and constituted a reversible error.
11.Nor was that the end of it.
12.Immediately after the excerpt we reproduced, with the consequences we have stated, the record shows that the learned trial magistrate made this order;Child aged 4 years old. She cannot be cross-examined.”
13.Tellingly, this is then followed by the testimony of Christine Chepchumba, the complaint’s mother who is indicated as PW1, which casts further doubt on how exactly the complaint’s statements was treated by the learned magistrate. Was it a preliminary statement or was it testimony?
14.The question we must answer is whether the learned trial magistrate was correct to cushion the complaint’s statement from cross-examination. The right of an accused person to challenge the evidence adduced against him by the prosecution by way cross- examination of witnesses is a fundamental aspect of the right to a fair trial expressly recognized in Article 50(2)(k) of the Constitution. So critical is the right that, where an accused person is unrepresented by counsel, the trial court is under a positive obligation to ensure he understands the right and is able to exercise it. Section 208(3) of the Criminal Procedure Code expresses the duty thus;
15.That duty relates to every witness called by the prosecution, without exception. It is thus a matter concern, going to the integrity of the trial, that in the present case the duty was not discharged, and the benefit to the appellant was in fact negated. This Court has on a number of occasions addressed the anomalous instances of denied cross examination which occasionally occur. On its way to finding that the magistrate had in that case misapprehended the law in not having a child witness cross-examined and that the High Court’s failure to note the anomaly was a failure of justice, this Court sitting at Busia had this to say in H.O.W v Republic eKLR;
16.The Court sitting at Eldoret was of the same view in Angechel Lotip v Republic  eKLR finding as we have herein that the issue was determinative of that appeal.
17.In determining this appeal, we consider it expedient to confine ourselves to the ground that the appellant was not allowed to cross examine the complainant, a matter which was not raised by the appellant in the courts below.
18.The issue of failure to cross examine a complaint by the accused was addressed. In the case of Nicholas Mutula Wambua v Republic, MSA CRA No. 373 of 2006 where this Court cited with approval the decision of the Supreme Court of Uganda in Sula v Uganda  2 EA 556 thus;
19.And recently, in the case of Paul Kinyanjui Kimauku v Republic  eKLR,this Court whilst addressing a similar issue further observed thus;
20.As in the afore quoted case, the record of the instant case similarly revealed that, the appellant did not cross examine AA who gave unsworn evidence. The record shows that after AA testified, the court went on to hear the evidence of PW 2, without the appellant cross examining AA. No explanation or reasons were provided for this omission. As such, the appellant was denied the opportunity to cross examine the complainant, resulting in a misstep in the criminal justice process, which has led to a mistrial.’”
21.See also the recent decision of this Court in Nyeri inJustus Muthui Mbathe v Republic Criminal Appeal No. 69 of 2015 (unreported).
22.The two issues we have addressed with regard to the complaint’s statement or testimony speak to a failure of justice that vitiated the trial. It is unfortunate that on first appeal, the High Court (C. Kariuki, J.) failed to notice those infirmities and made no mention of them as it dismissed the appellant’s first appeal. We are further troubled by another issue, again implicative of the appellant’s fair trial rights, which the learned judge handled as follows towards the end of his judgment;
23.With great respect, we think that the learned judge’s approach was erroneous and constitutes a misapprehension of the law. It has long been settled and is expressly provided in Article 50(2)(3) that, an accused person is entitled, as a matter of fair trial;
24.This right, at the very least, imposes upon the prosecution a clear and peremptory duty to make known and available to an accused person the statements of the witnesses it intends to call. It also imposes a concomitant duty on the trial court, as a custodian of the process and guarantor of fair trial, to ensure that the prosecution discharges that duty so that the accused person is not prejudiced. It cannot be correct to say that it is upon the accused person to enforce that right. It ought to be the duty of the court to ensure there is as level a playing field as possible. It cannot adopt a detached and cavalier posture especially where, as here, the accused person is already labouring under the burden of non-representation. The non-provision of the statements and the learned judge’s dismissal of the complaint off-hand constituted yet another failure of justice.
25.The effect of the three procedural substantive errors we have addressed, taken singly and cumulatively, is that the trial of the appellant did not meet the constitutional and statutory minima for a fair trial. The same was a mistrial.
26.The question we must next address is whether we should order a retrial. Faced with that very question, the Court in MUIRURI Vs.REPUBLIC  KLR 552 reasoned as follows;
27.We note from the record that the appellant was charged on 11th May 2012 and was sentenced to life imprisonment on 27th November, 2013. That means he has served nearly 10 years in prison on account of the stricken trial. That is by any standards a long period of time and, seeing that the appellant was himself free of blame for the mistrial, it seems unarguable that to subject him to a new trial would be patently prejudicial to him and would cause him injustice, notwithstanding our appreciation that the offence charged was a serious one.
28.The end result is that the appeal is allowed. The appellant’s conviction is quashed and the sentence set aside. He shall be set at liberty forthwith unless he is held for some other lawful reason.