Jackson Kalenga v Republic

The court identified the onus as resting on the prosecution to establish penetration, the complainant's age and the perpetrator's identity. The P3 form showed a tear on the hymen proving penetration; the age assessment report and testimony fixed the complainant's age at 8 years; and the complainant identified the appellant, her neighbour, by name to her mother. The concurrent findings of the two lower courts were based on credible evidence.

Relying on Evans Wamalwa Simiyu v Republic, the court held the power to order DNA testing is discretionary. The complainant identified the appellant by recognition as her neighbour; the trial court assessed her demeanor and found her candid and honest under Section 150 of the Evidence Act; and the High Court on re-evaluation also found the case proved beyond reasonable doubt. There was therefore no requirement for DNA testing to prove the offence.

The court reproduced the trial court's ruling that the accused did not raise his alibi defence at an early stage so that it could be tested, that it was an afterthought, and that the complainant was a candid and honest witness. On that basis the Court of Appeal held the defence was considered and rejected as untruthful on the facts and evidence adduced, disposing of the appellant's complaint.

Article 50(2)(h) guarantees assignment of an advocate at State expense where substantial injustice would otherwise result, but the court, following David Macharia Njoroge, Douglas Kinyua Njeru, Thomas Alugha Ndegwa and Joseph Kakei Kaswili, held the provision remained aspirational until legislation gave it effect. The Legal Aid Act, enacted in 2016 and commenced on 20th May 2016, postdated the appellant's arraignment in October 2012, so no enforceable obligation existed at the material time.