The Appellant Dennis Obiero alias Dady was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offence Act No 3 of 2006.
The particulars of the offence were that on the 7th day of January 2020 at Bagiakumu Location in Kisii South Sub-County within Kisii County intentionally caused his penis to penetrate the vagina of I. O. a child aged 7 years.
In the alternative the accused person was charged with the offence of indecent act contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006.
The Appellant was found guilty, convicted and sentenced to serve life imprisonment.
The Appellant was aggrieved by the conviction and sentence and he preferred the Petition of Appeal on 20th February 2024 on the following grounds: -
(1) That the learned trial magistrate erred in both law and fact by convicting the Appellant yet he failed to note that the ingredients of the offence were not conclusively proved.
(2) That the learned trial magistrate erred in both law and fact by convicting the Appellant yet failed to find that his defense was cogent and believable
(3) That the learned trial magistrate erred in both law and facts when he convicted the Appellant yet failed to find that prosecution did not discharge the burden of proof.
(4) That the learned trial magistrate erred in both law and facts by convicting the Appellant but failed to note that the evidence of identification by recognition of the Appellant was not positively proved.
(5) That he should be supplied with the original copy of the court’s proceedings
(6) That further grounds shall be adduced at the hearing.
The Appellant prayed that the appeal be allowed conviction quashed and sentence set aside.
The Prosecution’s case was that PW1 who was 7 years old at the time of the incident was at home alone as her grandmother had gone drinking when the Appellant who is her uncle called her to where he was and told her he would buy for her biscuits. PW1 said she was by then at her grandmother’s place. That she went to the Appellant’s house and in her words ‘’he removed my clothes and removed something from his body (points below) and inserted in my vagina (points down) and did bad things’. The Complainant went further to say that it was painful and she cried and her brother heard and called her uncle. She said the Appellant had locked her in the house and went out and when he returned he took her to a tree and she went to her grandmother. She said she found her grandmother drunk and she slept without telling her what happened.
The Complainant was taken to hospital by PW3 and she was treated and later taken to the Police Station and PW2 the investigating Officer took her again to hospital and P3 was duly filled. PW1 said that the Appellant is her uncle and he was staying in her other uncle’s home. She identified the Appellant in court as the one who defiled her. She said in cross examination that it is her uncle who told Everline to take her to hospital. She said Everline found her oozing blood from her private parts.
PW 2 P. C. Dorothy Adhiambo of Gesonso Police Station testified that on 8.1.2020 at around 11.00hrs she was instructed to investigate the case of defilement where the suspect was already in the cells after being arrested by members of public. That she interrogated the Complainant and took her to Iyabe Sub-County Hospital where it was established she was defiled.
PW2 also took the Complainant to Kisii TRH where her age was assessed and established to be 8 years. She produced the Age Assessment Report –Ex P1. PW2 said that the Complainant was walking with difficulties.
PW3 Everline Nyaboke Nyangau testified that on 8.1.2020 at 7.00am she heard a woman screaming and when she went she found a child lying down with legs raised and she was in pain. That it was the grandmother of the child who is her neighbor who was screaming. PW3 said the child was lying on the floor inside a house. PW3 took the Complainant to the police station and to Iyabe Sub-County Hospital where the child was treated and P3 issued and duly filled. PW3 said she was told it was Dady who defiled the child.
PW4 Dr. Evans Nyaata Mosota examined the Complainant who had been defiled by a known man who went to their compound and took her to a nearby hut. He said that upon examination of the genitalia the child had lacerations with freshly broken hymen. On conducting Lab tests on the urine it was found to have leucocytes, epithelial and pus cells. PW4 formed the opinion that the child was defiled. He produced duly filled P3 form as Exhibit P1
When the Appellant was placed on defense he gave unsworn statement and said that on 6/1/2020 at 6.00am he woke up and found people outside his house. That they did not tell him what happened but tied him and took him to the police station where he was placed in cells. That he stayed in the cell for 3 days and taken to court and charged with strange charges. The Appellant said he did not defile the Complainant. The Appellant alleged that his grandfather gave him a place to build his house but on his death the grandmother told him to leave the house for her so that she could sell and repair her damaged house. That when he refused the grandmother threatened to do something bad to him and he suspected that the charges were brought because of the quarrel. He said that he was the only one taking care of his siblings and justice should be done.
This appeal was canvassed byway of written submissions.
The Appellant’s submissions are undated but were filed 9TH December 2024 with additional grounds of appeal as follows: -
i) That the learned Trial Magistrate erred in law and fact on substantial contradictions diminishing credibility and applicability of Section 124 of the Evidence Act
ii) That the learned Trial Magistrate erred in law and fact closed eyes on unrepresented exhibits and controversial P3 form inter alia.
iii) That the Trial Magistrate further erred for not finding a crucial witness should have been summoned for the purpose of verification under Section 143 of the CPC
iv) That the learned Trial Magistrate erred for no neglecting that due to mechanism involved in such offence required to be informed of legal aid rights infringed Section 42(a) of the same.
In the Appellant’s submission he said that PW3 and the other uncle were involved in the land dispute and that is why no other neighbor heard the scream PW3 allegedly heard from PW1’s grandmother. He submitted further that the contradiction between the evidence of PW1 and PW3 was adverse to the Prosecution and he relied on the holding in PNM Vs Republic (2017) Eklr where the court at Nyeri held that where witnesses contradict each other it is not for the court to speculate which one of them is telling the truth.
The Appellant also contended that he was arrested on 7/1/2020 but the Investigating Officer said she found he had been arrested on 8/1/2020. He said this was further contradiction on the prosecution’s evidence.
He also contended that the clothes that the Complainant was wearing at the time of the alleged defilement were not availed and the I / O did not explain why they were not availed.
The Appellant further submitted that parts of the P3 form were not filled to show probable weapon used to inflict injury on the Complainant and therefore he should have been acquitted. The Appellant relied on the holding in G A B Vs Republic (2017) eKLR where it was held that there is no legal requirement that a victim of sexual offence must suffer lacerations, cuts, bruises or any other injury on the private parts.
The Appellant also submitted that he was not informed of his right to legal representation under Section 42(a) of the Legal Aid Act No. 6 of 2016 and hi rights under Article 50(2) (h) of the Constitution was infringed.
He also submitted further that failure to call crucial witnesses, the boy who heard the Complainant scream was contrary to Section 143 of the Evidence Act.
The Respondent filed submissions dated 11th November 2024 and it was submitted that the ingredients of the offence of defilement namely age of the Complainant, penetration, and identity of the perpetrator were proved to the required standards.
On age of the Complainant it was submitted that the evidence of PW1 that she was 8 years old was corroborated by the evidence of PW2 who took the Complainant to the hospital and her age was assessed and confirmed she was 8 years and from the P3 it was confirmed she was 7 years at the time of the incident as shown in the P3 form. On the 2nd element of penetration the Respondent Counsel submitted that PW1 testified and gave a detailed account of how the Appellant lured her into his house and defiled her and her evidence is supported by that of PW4 who examined her and found she had lacerations on the lower part of her vagina and that her hymen was freshly broken. It was therefore submitted that the 2nd element was proved to the required standards.
In regard to the 3rd element the Respondent Counsel submitted that the Complainant identified the Appellant as her uncle and that he was known by the name Daddy. The Complainant narrated that the Appellant lured her into his house and defiled her. The child knew the Appellant prior to the incident and she therefore identified him by recognition.
On the issue that the court failed to consider the Appellant’s cogent evidence it was submitted that the Appellant’s gave unsworn testimony in his defense and alleged that he was framed due to land dispute with the grandmother but he did not raise the issue with the Prosecution witnesses and the Trial Court properly dismissed the same
ANALYSIS AND DETERMINATION.
In a first appeal, the duty of the court was held in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance
for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issue for determination is;
i) Whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
ii) Whether failure to call the other uncle, grandmother and the brother of the complainant as witnesses was fatal to the prosecution’s case.
On Whether the ingredients of the offence of defilement were proved beyond reasonable doubt, Section 8 (1) as read with 8(2) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
(2) A person who commits an offence of defilement with a child below the age of eleven years is liable upon conviction to imprisonment for a term of not less than twenty years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
On proof of age, the Court of Appeal in the case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR stated as follows; -
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
From the evidence of prosecution witnesses it is not disputed that the Complainant was a child aged below 11 years and therefore a child for purposes of Section 8(2) of the Sexual Offences Act. There was proof she was 7 years at the time she was defiled and an age assessment report was produced showing that as at 10th February 2021 when the Court made and order for her age to be assessed she was 8 years.
On the issue of penetration, the Complainant said that her uncle the Appellant herein lured her into his house ‘where he was and told her he would buy for her biscuits and that when she went to the Appellant’s house ‘’he removed my clothes and removed something from his body (points below) and inserted in my vagina (points down) and did bad things’. The Complainant went further to say that it was painful and she cried and her brother heard and called her uncle.
The detailed account given by the Complainant on how the Appellant defiled her makes this court confirm the Trial Court’s finding that there was proof of penetration beyond all reasonable doubt. The Doctor’s examination and medical report stated that the genitalia of the child had lacerations with freshly broken hymen and upon conducting Lab tests on the urine it was found to have leucocytes, epithelial and pus cells thus the Doctor opined that the child was defiled. This court finds that penetration was proved to the required standard of proof.
On whether the perpetrator was positively identified, the Complainant said the Appellant was her uncle and he was living in the other uncle’s home nearby. She said the Appellant called her to his house and defiled her when her grandmother who is her guardian had gone drinking and the Complainant was at home alone. The Appellant has not disputed that the Complainant was his niece and was known to him and vice versa. The Appellant claimed in his unsworn testimony that the grandmother had a land dispute with him and that is why he was framed. He did not explain how the Complainant was involved in the land dispute and the frame up being that the grandmother who was her guardian was a drunkard and was away from home on a drinking spree and that is why the Complainant was exposed to the risk of being defiled. Nothing in the prosecution evidence pointed to why the Appellant would be framed if he did not commit the offence. The 3rd Prosecution witness is not related in any way to the Appellant or the Complainant and she only responded to distress cries of the grandmother of PW1 when she found that her grandchild had been defiled. PW3 found the child lying down with legs raised and she was in pain following incident of being defiled by the uncle. She took the child to hospital on instructions of the other uncle of the Complainant who seems to appear did not want anything to do with reporting his brother for committing such a heinous act against their vulnerable and fragile 7 years old niece. This court finds that the Appellant was properly identified by recognition.
In the Appellant’s further grounds of appeal, he faulted the Trial Magistrate for diminishing the credibility and applicability of Section 124 of the Evidence Act but he did not make any submissions in respect to this ground. When the Complainant went to court she was subjected to voir dire examination and the court found she was intelligent enough and understood the meaning of telling the truth and it was ordered that she gives her testimony on oath. Upon giving her testimony in chief the Appellant cross examined her. When writing the judgment herein the Trial Magistrate made a finding as to credibility of the Complainant and said she believed she was telling the truth as the Appellant was her uncle. This court finds no reason to make a different finding from that of the Trial Magistrate who had the opportunity to see and hear witnesses testify.
On whether failure to call the other uncle, grandmother and the brother of the complainant as witnesses was fatal to the prosecution’s case, Section 143 of the Evidence Act provides that;-
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
The Court of Appeal in Julius Kalewa Mutunga v Republic stated as follows:-
“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless for example it is shown that the prosecution was influenced by some oblique motive”
Further, in Bukenya & Others v Uganda the former East African Court of Appeal laid down the principles for calling witnesses but was categorical that the prosecution is not expected to call a superfluity of witnesses.
The Appellant faulted the Magistrate because those witnesses could have verified the evidence tendered. He said the boy who allegedly heard the Complainant screaming while the Complainant was being defiled ought to have attended to testify. The Appellant did not also make any submissions in regards to this ground. It is true that the Complainant said that when she was being defiled she felt pain and screamed and their boy heard and went to call her other uncle. That boy and the other uncle did not come to court to testify neither did the grandmother of the Complainant who raised alarm when she discovered her grandchild had been defiled.
PW3 testified that she responded to the alarm and found the child lying down with her legs raised and in pain due to incident of defilement. She took the child to hospital and to the Police Station. The child was confirmed to have been defiled. What the witnesses who were not called were going to say is whether the Complainant was defiled or not and that evidence is already on record. The Evidence of PW1 is corroborated by the evidence of PW2, PW3, and PW4 that she was defiled. The circumstances surrounding the commission of the offense also corroborates the Complainant’s testimony that it is the Appellant who committed the heinous act against the said child. This ground of appeal does not therefore hold water.
Based on this court’s re-evaluation of the evidence in the Trial Court and the judgment of the Trial Magistrate as well as the grounds of appeal and rival submissions, this court finds that the appeal herein lacks merit and the same is dismissed.
Right of Appeal 14 Days Explained.
Dated, signed and delivered at Kisii this 24th day of June, 2025
The particulars of the offence were that on the 7th day of January 2020 at Bagiakumu Location in Kisii South Sub-County within Kisii County intentionally caused his penis to penetrate the vagina of I. O. a child aged 7 years.
In the alternative the accused person was charged with the offence of indecent act contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006.
The Appellant was found guilty, convicted and sentenced to serve life imprisonment.
The Appellant was aggrieved by the conviction and sentence and he preferred the Petition of Appeal on 20th February 2024 on the following grounds: -
(1) That the learned trial magistrate erred in both law and fact by convicting the Appellant yet he failed to note that the ingredients of the offence were not conclusively proved.
(2) That the learned trial magistrate erred in both law and fact by convicting the Appellant yet failed to find that his defense was cogent and believable
(3) That the learned trial magistrate erred in both law and facts when he convicted the Appellant yet failed to find that prosecution did not discharge the burden of proof.
(4) That the learned trial magistrate erred in both law and facts by convicting the Appellant but failed to note that the evidence of identification by recognition of the Appellant was not positively proved.
(5) That he should be supplied with the original copy of the court’s proceedings
(6) That further grounds shall be adduced at the hearing.
The Appellant prayed that the appeal be allowed conviction quashed and sentence set aside.
The Prosecution’s case was that PW1 who was 7 years old at the time of the incident was at home alone as her grandmother had gone drinking when the Appellant who is her uncle called her to where he was and told her he would buy for her biscuits. PW1 said she was by then at her grandmother’s place. That she went to the Appellant’s house and in her words ‘’he removed my clothes and removed something from his body (points below) and inserted in my vagina (points down) and did bad things’. The Complainant went further to say that it was painful and she cried and her brother heard and called her uncle. She said the Appellant had locked her in the house and went out and when he returned he took her to a tree and she went to her grandmother. She said she found her grandmother drunk and she slept without telling her what happened.
The Complainant was taken to hospital by PW3 and she was treated and later taken to the Police Station and PW2 the investigating Officer took her again to hospital and P3 was duly filled. PW1 said that the Appellant is her uncle and he was staying in her other uncle’s home. She identified the Appellant in court as the one who defiled her. She said in cross examination that it is her uncle who told Everline to take her to hospital. She said Everline found her oozing blood from her private parts.
PW 2 P. C. Dorothy Adhiambo of Gesonso Police Station testified that on 8.1.2020 at around 11.00hrs she was instructed to investigate the case of defilement where the suspect was already in the cells after being arrested by members of public. That she interrogated the Complainant and took her to Iyabe Sub-County Hospital where it was established she was defiled.
PW2 also took the Complainant to Kisii TRH where her age was assessed and established to be 8 years. She produced the Age Assessment Report –Ex P1. PW2 said that the Complainant was walking with difficulties.
PW3 Everline Nyaboke Nyangau testified that on 8.1.2020 at 7.00am she heard a woman screaming and when she went she found a child lying down with legs raised and she was in pain. That it was the grandmother of the child who is her neighbor who was screaming. PW3 said the child was lying on the floor inside a house. PW3 took the Complainant to the police station and to Iyabe Sub-County Hospital where the child was treated and P3 issued and duly filled. PW3 said she was told it was Dady who defiled the child.
PW4 Dr. Evans Nyaata Mosota examined the Complainant who had been defiled by a known man who went to their compound and took her to a nearby hut. He said that upon examination of the genitalia the child had lacerations with freshly broken hymen. On conducting Lab tests on the urine it was found to have leucocytes, epithelial and pus cells. PW4 formed the opinion that the child was defiled. He produced duly filled P3 form as Exhibit P1
When the Appellant was placed on defense he gave unsworn statement and said that on 6/1/2020 at 6.00am he woke up and found people outside his house. That they did not tell him what happened but tied him and took him to the police station where he was placed in cells. That he stayed in the cell for 3 days and taken to court and charged with strange charges. The Appellant said he did not defile the Complainant. The Appellant alleged that his grandfather gave him a place to build his house but on his death the grandmother told him to leave the house for her so that she could sell and repair her damaged house. That when he refused the grandmother threatened to do something bad to him and he suspected that the charges were brought because of the quarrel. He said that he was the only one taking care of his siblings and justice should be done.
This appeal was canvassed byway of written submissions.
The Appellant’s submissions are undated but were filed 9TH December 2024 with additional grounds of appeal as follows: -
i) That the learned Trial Magistrate erred in law and fact on substantial contradictions diminishing credibility and applicability of Section 124 of the Evidence Act
ii) That the learned Trial Magistrate erred in law and fact closed eyes on unrepresented exhibits and controversial P3 form inter alia.
iii) That the Trial Magistrate further erred for not finding a crucial witness should have been summoned for the purpose of verification under Section 143 of the CPC
iv) That the learned Trial Magistrate erred for no neglecting that due to mechanism involved in such offence required to be informed of legal aid rights infringed Section 42(a) of the same.
In the Appellant’s submission he said that PW3 and the other uncle were involved in the land dispute and that is why no other neighbor heard the scream PW3 allegedly heard from PW1’s grandmother. He submitted further that the contradiction between the evidence of PW1 and PW3 was adverse to the Prosecution and he relied on the holding in PNM Vs Republic (2017) Eklr where the court at Nyeri held that where witnesses contradict each other it is not for the court to speculate which one of them is telling the truth.
The Appellant also contended that he was arrested on 7/1/2020 but the Investigating Officer said she found he had been arrested on 8/1/2020. He said this was further contradiction on the prosecution’s evidence.
He also contended that the clothes that the Complainant was wearing at the time of the alleged defilement were not availed and the I / O did not explain why they were not availed.
The Appellant further submitted that parts of the P3 form were not filled to show probable weapon used to inflict injury on the Complainant and therefore he should have been acquitted. The Appellant relied on the holding in G A B Vs Republic (2017) eKLR where it was held that there is no legal requirement that a victim of sexual offence must suffer lacerations, cuts, bruises or any other injury on the private parts.
The Appellant also submitted that he was not informed of his right to legal representation under Section 42(a) of the Legal Aid Act No. 6 of 2016 and hi rights under Article 50(2) (h) of the Constitution was infringed.
He also submitted further that failure to call crucial witnesses, the boy who heard the Complainant scream was contrary to Section 143 of the Evidence Act.
The Respondent filed submissions dated 11th November 2024 and it was submitted that the ingredients of the offence of defilement namely age of the Complainant, penetration, and identity of the perpetrator were proved to the required standards.
On age of the Complainant it was submitted that the evidence of PW1 that she was 8 years old was corroborated by the evidence of PW2 who took the Complainant to the hospital and her age was assessed and confirmed she was 8 years and from the P3 it was confirmed she was 7 years at the time of the incident as shown in the P3 form. On the 2nd element of penetration the Respondent Counsel submitted that PW1 testified and gave a detailed account of how the Appellant lured her into his house and defiled her and her evidence is supported by that of PW4 who examined her and found she had lacerations on the lower part of her vagina and that her hymen was freshly broken. It was therefore submitted that the 2nd element was proved to the required standards.
In regard to the 3rd element the Respondent Counsel submitted that the Complainant identified the Appellant as her uncle and that he was known by the name Daddy. The Complainant narrated that the Appellant lured her into his house and defiled her. The child knew the Appellant prior to the incident and she therefore identified him by recognition.
On the issue that the court failed to consider the Appellant’s cogent evidence it was submitted that the Appellant’s gave unsworn testimony in his defense and alleged that he was framed due to land dispute with the grandmother but he did not raise the issue with the Prosecution witnesses and the Trial Court properly dismissed the same
ANALYSIS AND DETERMINATION.
In a first appeal, the duty of the court was held in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance
for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issue for determination is;
i) Whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
ii) Whether failure to call the other uncle, grandmother and the brother of the complainant as witnesses was fatal to the prosecution’s case.
On Whether the ingredients of the offence of defilement were proved beyond reasonable doubt, Section 8 (1) as read with 8(2) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
(2) A person who commits an offence of defilement with a child below the age of eleven years is liable upon conviction to imprisonment for a term of not less than twenty years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
On proof of age, the Court of Appeal in the case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR stated as follows; -
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
From the evidence of prosecution witnesses it is not disputed that the Complainant was a child aged below 11 years and therefore a child for purposes of Section 8(2) of the Sexual Offences Act. There was proof she was 7 years at the time she was defiled and an age assessment report was produced showing that as at 10th February 2021 when the Court made and order for her age to be assessed she was 8 years.
On the issue of penetration, the Complainant said that her uncle the Appellant herein lured her into his house ‘where he was and told her he would buy for her biscuits and that when she went to the Appellant’s house ‘’he removed my clothes and removed something from his body (points below) and inserted in my vagina (points down) and did bad things’. The Complainant went further to say that it was painful and she cried and her brother heard and called her uncle.
The detailed account given by the Complainant on how the Appellant defiled her makes this court confirm the Trial Court’s finding that there was proof of penetration beyond all reasonable doubt. The Doctor’s examination and medical report stated that the genitalia of the child had lacerations with freshly broken hymen and upon conducting Lab tests on the urine it was found to have leucocytes, epithelial and pus cells thus the Doctor opined that the child was defiled. This court finds that penetration was proved to the required standard of proof.
On whether the perpetrator was positively identified, the Complainant said the Appellant was her uncle and he was living in the other uncle’s home nearby. She said the Appellant called her to his house and defiled her when her grandmother who is her guardian had gone drinking and the Complainant was at home alone. The Appellant has not disputed that the Complainant was his niece and was known to him and vice versa. The Appellant claimed in his unsworn testimony that the grandmother had a land dispute with him and that is why he was framed. He did not explain how the Complainant was involved in the land dispute and the frame up being that the grandmother who was her guardian was a drunkard and was away from home on a drinking spree and that is why the Complainant was exposed to the risk of being defiled. Nothing in the prosecution evidence pointed to why the Appellant would be framed if he did not commit the offence. The 3rd Prosecution witness is not related in any way to the Appellant or the Complainant and she only responded to distress cries of the grandmother of PW1 when she found that her grandchild had been defiled. PW3 found the child lying down with legs raised and she was in pain following incident of being defiled by the uncle. She took the child to hospital on instructions of the other uncle of the Complainant who seems to appear did not want anything to do with reporting his brother for committing such a heinous act against their vulnerable and fragile 7 years old niece. This court finds that the Appellant was properly identified by recognition.
In the Appellant’s further grounds of appeal, he faulted the Trial Magistrate for diminishing the credibility and applicability of Section 124 of the Evidence Act but he did not make any submissions in respect to this ground. When the Complainant went to court she was subjected to voir dire examination and the court found she was intelligent enough and understood the meaning of telling the truth and it was ordered that she gives her testimony on oath. Upon giving her testimony in chief the Appellant cross examined her. When writing the judgment herein the Trial Magistrate made a finding as to credibility of the Complainant and said she believed she was telling the truth as the Appellant was her uncle. This court finds no reason to make a different finding from that of the Trial Magistrate who had the opportunity to see and hear witnesses testify.
On whether failure to call the other uncle, grandmother and the brother of the complainant as witnesses was fatal to the prosecution’s case, Section 143 of the Evidence Act provides that;-
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
The Court of Appeal in Julius Kalewa Mutunga v Republic stated as follows:-
“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless for example it is shown that the prosecution was influenced by some oblique motive”
Further, in Bukenya & Others v Uganda the former East African Court of Appeal laid down the principles for calling witnesses but was categorical that the prosecution is not expected to call a superfluity of witnesses.
The Appellant faulted the Magistrate because those witnesses could have verified the evidence tendered. He said the boy who allegedly heard the Complainant screaming while the Complainant was being defiled ought to have attended to testify. The Appellant did not also make any submissions in regards to this ground. It is true that the Complainant said that when she was being defiled she felt pain and screamed and their boy heard and went to call her other uncle. That boy and the other uncle did not come to court to testify neither did the grandmother of the Complainant who raised alarm when she discovered her grandchild had been defiled.
PW3 testified that she responded to the alarm and found the child lying down with her legs raised and in pain due to incident of defilement. She took the child to hospital and to the Police Station. The child was confirmed to have been defiled. What the witnesses who were not called were going to say is whether the Complainant was defiled or not and that evidence is already on record. The Evidence of PW1 is corroborated by the evidence of PW2, PW3, and PW4 that she was defiled. The circumstances surrounding the commission of the offense also corroborates the Complainant’s testimony that it is the Appellant who committed the heinous act against the said child. This ground of appeal does not therefore hold water.
Based on this court’s re-evaluation of the evidence in the Trial Court and the judgment of the Trial Magistrate as well as the grounds of appeal and rival submissions, this court finds that the appeal herein lacks merit and the same is dismissed.
Right of Appeal 14 Days Explained.
Dated, signed and delivered at Kisii this 24th day of June, 2025