Michael Ang’ara Paul v Republic [2021] KECA 1004 (KLR)

The complainant testified on two occasions, remained consistent, and withstood lengthy cross-examination despite her stammer and apparent growth retardation. She identified the appellant, described the shop where the defilement occurred, and disclosed the acts to Mama Janet and PW3 despite inducements of money. Both courts below found the defence unconvincing. The Court of Appeal, constrained by its second-appeal mandate, found no misapprehension of evidence or wrong principle and upheld the concurrent findings.

The Court applied Bukenya v Republic, acknowledging the Director's duty to call or make available all witnesses necessary to establish the truth. However, it qualified this with the proviso to Section 143 of the Evidence Act, that no particular number of witnesses is required to prove a fact. The prosecution called four witnesses, including the complainant, her sister, a clinical officer, and the investigating officer, which the Court found adequate to establish the charge.

The Court examined the judgment of E.N. Maina, J. and found that the Judge analysed the entire case and reached the conclusion that the appeal lacked merit. The Judge considered the case for the prosecution and the defence as required. Consequently, the appellant's ground that the High Court failed in its re-evaluation duty was rejected, and the affirmance of the trial court's conviction and sentence followed.

Counsel for the appellant urged the Court to review the sentence, submitting that sentencing is a judicial function. The Court noted that the trial magistrate considered the appellant's mitigation — advanced age, family responsibilities, and first-offender status — before imposing twenty years, which was confirmed on first appeal. In the circumstances, including the complainant's age of 12 years, the Court found the sentence appropriate and declined to disturb it.