Morris Mutie Thomas v Republic [2016] KECA 618 (KLR)

The court noted the issue was raised for the first time in the second appeal. The record showed that on 7th March 2013 the appellant requested the charge sheet and witness statements and the court directed the prosecution to avail them. The appellant never raised the issue again and made no application for an adjournment that was rejected, so there was no basis to find a constitutional violation on the record.

The appellant was a neighbour known to the victim, his home was about half a kilometre away, the house was lit by electric lights, and he stayed in the house until about 11 pm. There was also evidence of previous defilement by him. Relying on Anjononi & Others v Republic, recognition evidence of a person known to the witness is more reliable and assuring than identification of a stranger.

The victim, her mother and the clinical officer all testified that SJ was 7 years old, and an age assessment report produced as an exhibit confirmed this. Penetration was established by the victim's evidence, corroborated (though not strictly necessary) by medical evidence of bruising, absent hymen and the clinical officer's opinion that she was probably defiled.

While an alibi should be raised early to allow investigation, a late alibi cannot be ignored; the correct approach, per Ganzi & 2 Others v Republic, is to weigh it against the prosecution evidence. Here the evidence of recognition, timing and circumstance completely displaced the alibi, so nothing turns on the misdirection.

The amendment merely added an alternative count while retaining the defilement count intact; the victim's evidence on the first count had been given moments before and did not change. The appellant was offered the opportunity to recall and further cross-examine her, which he declined, so no prejudice was occasioned.