Gichachi v Republic

High Court, at Nyeri December 7, 1994

Ang’awa J

Criminal Appeal No 387 of 1993

(From original conviction and sentence in Criminal  Case No 1332 of 1992 of SRM’s Court at Kerugoya)

Evidence – corroboration – sexual offences – uncorroborated evidence of complainant – how Court should treat such evidence – duty of trial court to warn itself before convicting on such evidence – failure of trial court to warn itself – effect of such failure.

Criminal Practice and Procedure – judgments – writing judgments – duty of Court to give reasons for decision reached in each count and its findings –failure of Court to do so – effect of such failure.

The 3 accused in this case were charged with offence of rape contrary to section 140 of the Penal Code and robbery contrary to section 290(1) of the Penal Code. They all pleaded not guilty. Trial was held and were all found guilty of rape and stealing (not robbery). Accused 1 was sentenced to 4 years imprisonment with 5 strokes of cane. Accused 2 committed to Youth Corrective Centre and accused 3 placed in probation for 3 years because they were minors. Accused 1 appealed.

The complainant alleged that the 3 raped her when they volunteered to take her home, and accused 1 and 3 searched her bag.

Counsel for accused raised points of technicalities, first, stating that the magistrate should have warned herself before convicting on evidence of a single witness, that identification was not sufficiently done and that medical evidence was not produced.

It appeared however that though accused 1 was convicted on both counts, he was not sentenced on count number 2.

Held:

1. Section 169 of the Criminal Procedure Code should be complied with in writing of judgments. There are two counts. A point to point decision should be reached in each count and its findings. Sentence should be for each count and the two may not be corroborated.

2. Warning by a trial magistrate must be given for relying on uncorroborated  evidence of a single witness.

3. The medical evidence is required to be adhered to strictly which was not done.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) sections 140, 275, 296(1)

2. Criminal Procedure Code (cap 75) section 169

Kabage v Republic

High Court, at Nyeri June 29, 1994

Ang’awa J

Criminal Appeal No 282 of 1992

(From original conviction and sentence in PM’s  Criminal Case No 92 of 1991 at Nyeri)

Evidence – technical witness – where an accused never challenged technical report – whether technical witness should be called to be subjected to cross-examination.

The two accused persons in this case were charged with the offence of attempting to obtain money by false pretence contrary to section 313 as read with section 389 of the Penal Code. The 1st accused had a debt at a bar of Kshs 59. He had no Kenyan currency, so he sought to change $500, with a passport which belonged to the second accused. The second accused was however acquitted but accused was convicted.

The accused’s case was to the effect that he did not know whether dollars were fake nor did the charge disclose that he tried to obtain money by false pretences.

Held:

1. The appellant never challenged the report nor the fact that the dollars were fake.

2. There was quite a considerable evidence against 2nd accused under the doctrine of aiding and abetting the appellant, but the trial magistrate used discretion to acquit him, so the High Court is not permitted to interfere with his acquittal.

3. The facts which have to be proved to establish guilt must be proved beyond all reasonable doubt on evidence considered as a whole.

Appeal rejected.

Cases

Mwaula & Muthoka v Republic [1976 - 80] 1 KLR 1656

Statutes

1. Penal Code (cap 63) sections 313, 389

2. Criminal Procedure Code (cap 75) section 214

Advocates

Mr Mwangi for Mr Waweru for the Appellant

Mr Maari for the State/Respondent