Mark Oiruri Mose v Republic

The State filed no appeal or cross-appeal against the acquittal on the defilement charge. The judge relied on Section 354(3)(ii), which governs appeals from conviction, not acquittal. Powers over acquittals lie in Section 354(3)(c) and presuppose a substantive appeal. State counsel's oral submissions supporting reversal could not substitute for an appeal, so the reversal of the acquittal and substitution of a life sentence were unlawful.

State counsel raised matters beyond the appellant's appeal, urging reversal of the acquittal. Section 354(2) obliges the court to invite the appellant to reply to matters raised by the respondent. The judge fixed a judgment date without granting the appellant a reply. Because the appellant was unrepresented and the matters raised were novel questions of law, that failure alone vitiated the proceedings.

The magistrate reasoned that the absence of spermatozoa, given the five-day delay before examination and probable bathing, was inconsistent with defilement. The Court held that the law does not require evidence of spermatozoa; penetration, even only on the surface, establishes the offence. Conversely, since only penetration was alleged, the alternative indecent act charge under Section 11(1), which excludes acts causing penetration, was not properly proved.

The complainant gave detailed unsworn evidence after voire dire but was never cross-examined, and no explanation was given. Section 146(1) of the Evidence Act entitles the adverse party to cross-examine, and the proviso to Section 124 requires the court to be satisfied of the victim's truthfulness. The Court agreed the omission was improper but noted the mother's, grandmother's and clinical officer's evidence would still have supported conviction.