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|Case Number:||Criminal Appeal 322 of 2007|
|Parties:||D. N. N v REPUBLIC|
|Date Delivered:||02 Dec 2011|
|Court:||High Court at Nyeri|
|Judge(s):||Joseph Kiplagat Sergon|
|Citation:||D. N. N v REPUBLIC  eKLR|
|Case History:||(Being an Appeal from the Judgment of Hon. Ndung’u H. N. Ag., Senior Principal Magistrate, in Criminal Case No.2491 of 2005 delivered on 6th March, 2007 at Nyeri)|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO.322 OF 2007
(Being an Appeal from the Judgment of Hon. Ndung’u H. N. Ag., Senior Principal Magistrate,
in Criminal Case No.2491 of 2005 delivered on 6th March, 2007 at Nyeri)
J U D G M E N T
On appeal the appellant put forward the following grounds in his petition:
5. That the learned trial magistrate erred in law and fact by relying on P.W.2’s evidence which said that the scratches on P.W.1’s face were caused by the accused person during the struggle. This statement had no supportive evidence to show that there was struggling between P.W.1 and 1.
When put on his defence, the appellant denied committing the offence. He claimed that P.W.1 and her mother had a quarrel on 20th October, 2005. In the process P.W.1 was facially injured by her mother before leaving for school. The appellant said the complainant did not come back that evening. He later learnt that she had been taken to the police by her teachers. The appellant claimed that his wife had a grudge with one of P.W.1’s teachers by the name Miss Mugambi.
The main ground argued on appeal is that there was no cogent evidence to link the appellant with the offence. It is the submission of Miss Ngalyuka that the evidence of P.W.1 was corroborated by the medical evidence tendered by P.W.5. I have considered the rival submissions. It is not in dispute that the complainant was defiled. The question is whether there was credible evidence to link the appellant with the offence. The medical evidence tendered indicates that the complainant had bacterial infection. The appellant was not medically examined to establish whether he was the person who infected the complainant with the infection. I do not know why the appellant was not subjected to medical examination. A careful consideration of the evidence of P.W.1 will reveal that the complainant had alleged she had been defiled many times by the appellant. She claimed that at one given time, her mother found the appellant on top of her. The question which has persisted in my mind is why was the complainant’s mother not summoned to testify. P.W.1 claimed that on the date i.e. 20th October 2005, she was raped for 20 minutes after which she quickly put on her clothes and ran out to hide in the bush. The question which remains unanswered is if the complainant had been defiled previously on many occasions then what prompted her this time round to run and hide in the bush? According to P.W.1 she reported the incident to her teacher the same day and that the teachers took action to inform the police. That piece of evidence is contradicted by P.W.2 who said the complainant reported the incident to her on 25th October, 2005. It is a matter of common notoriety that 20th October every year is a Public Holiday hence it is inconceivable for any teacher or pupil to be at school. In my view the evidence of P.W.1 appears to be unreliable and not credible. Her evidence needs corroboration. Her evidence could not be corroborated by the medical evidence because that piece of evidence did not create the link between the offence and the appellant.
In the end, I find that there was no credible evidence to sustain the appellant’s conviction. I will give the appellant the benefit of doubt. The appeal is allowed. The conviction and sentence are quashed and set aside respectively. The appellant is set free forthwith unless lawfully held.
Dated and delivered this 2nd day of December, 2011.