In a powerful affirmation of the right to a fair trial, the High Court in
Busia has ordered the recall of a seven-year-old girl who had earlier testified
against her father in an incest case.
The move comes after the court found that the accused, EMW, was denied his
constitutional right to have legal counsel when the key witness, his daughter, gave
her initial testimony.
Justice William Musyoka delivered the ruling on June 9, 2025, allowing EMW’s
appeal that challenged the trial court's refusal to let the minor, identified
only as AAM for protection, be recalled for further cross-examination by his
newly appointed lawyer.
The man was charged with incest after allegedly defiling his daughter in
Malaba town, Teso North, Busia county.
He also faced an alternative charge of committing an indecent act with a
child under Section 11(1) of the same Act. He pleaded not guilty.
The trial, which began in Malaba Principal Magistrate’s Court in 2023,
initially saw the man represent himself.
His daughter, AAM, took the witness stand as the prosecution’s primary
witness on June 13, 2024.
The child appeared distressed and was stood down mid-testimony to undergo
counselling.
She resumed her testimony on July 22, 2024, completing her account and being
cross-examined by her father, who still lacked legal representation.
However, by the time the court reconvened on August 12, 2024, the man had
enlisted Advocate Winnie Anono to act on his behalf.
Anono immediately applied to have AAM recalled for further
cross-examination, arguing that her client, as a layperson, had not effectively
cross-examined the witness.
The application was hotly contested by the prosecution and dismissed by the
trial magistrate on August 13, 2024.
In his appeal, the man claimed the refusal to recall AAM denied him a fair
trial, citing Article 50(2)(g) of the Constitution, which guarantees the right
to choose and be promptly informed of the right to legal representation.
Justice Musyoka agreed.
“The appellant was first presented in court on March 6, 2023, when he took
plea,” the judge said.
“That was the opportune time when he should have been informed of his
constitutional fair trial rights... He was not informed of that right
promptly.”
The court noted that the man appeared in court on 11 separate occasions
before AAM testified in March 2024, yet at no point was he informed of his
right to legal counsel.
According to Justice Musyoka, this amounted to a violation of Article
50(2)(g) of the Constitution and rendered the trial unfair from the onset.
The judge described the charges AMW faced as “complex,” combining both incest
and defilement.
If convicted, EMW would face a mandatory life sentence under Section 8(2) of
the Sexual Offences Act, given the minor's age.
“An incestuous defilement of a minor of tender years ought not to attract a
lesser sentence,” the court noted.
“That would make the case more complex, and deserving of the involvement of an
Advocate.”
Despite the prosecution's argument that the man had ample time to seek legal
counsel before his daughter’s testimony, the judge stated that the right to
representation can be exercised at any stage of the trial and cannot be
restricted to the pre-testimony phase.
“The appellant cannot be blamed for deciding to appoint an Advocate after he
came to some realisation of the weight of the matter,” Justice Musyoka ruled.
“He should not be punished for it.”
The trial court had refused the recall of AAM on the grounds that she had
already testified twice and that summoning her a third time would not be in the
best interest of the child.
But the High Court found this reasoning insufficient.
“There are constitutional safeguards to a fair trial, which the trial court
ignored, as it focused only on the interests of the child complainant,” the
judge ruled.
“The best interests of the child complainant must be balanced against the
rights of the accused person.”
Justice Musyoka further observed that the child need not testify again in
the physical presence of the accused and that arrangements, such as shielding,
closed court sessions or virtual hearings, could be made to minimise trauma.
The decision to block the recall of the child was declared invalid.
In allowing the appeal, the High Court ordered the original trial court records returned to Malaba Law Courts to facilitate the continuation of proceedings, with AAM recalled for cross-examination by her father’s Advocate.
