Amo v Republic

The evidence showed the appellant was the complainant's uncle and should have been charged with incest under Section 20 of the Sexual Offences Act. However, the Court applied the principle that discrepancies in a charge that cause no prejudice and are inconsequential to the conviction or sentence are not material. Section 382 bars reversal for such irregularities unless a failure of justice is occasioned. The sentences for incest and defilement of a girl below 11 years were both life imprisonment.

Relying on Joseph Maina Mwangi v Republic, the Court held that appellate courts assessing discrepancies in trial evidence must be guided by Section 382 and ask whether the discrepancies are so fundamental as to cause prejudice to the accused or whether they are inconsequential to the conviction and sentence. The contradiction about sexually transmitted infection was held inconsequential to the conviction.

Although no medical evidence connected the appellant to the assault, the proviso to Section 124 of the Evidence Act permits conviction on the victim's evidence alone where the court, for recorded reasons, is satisfied the victim is telling the truth. The trial court found N truthful on demeanour; she gave a detailed account to her parents on the material night and to the court; her genitalia were swollen and her hymen broken, confirming penetration.

The proviso to Section 20 provides that where the female person is proved to be under eighteen years, the accused is liable to imprisonment for life. The Court found the sentence identical whether the offence was framed as defilement of a girl below 11 years or as incest, so the enhancement occasioned no prejudice.