Daniel Obiria Mose v Republic

The birth certificate named 'AK' while the complainant identified as 'MOM'. The court noted the trial court had observed the anomaly and declined to rely on the document. Relying on Edwin Nyambogo Onsongo, the court held age may be proved by any admissible evidence of probative value, including oral testimony. Here the complainant's evidence and the P3 form established she was 15, and the appellant never challenged her age in cross-examination.

The court held this ground was raised too late, the appellant having been represented at the High Court without raising it. The trial record showed two pre-hearing directions that the appellant be supplied with witness statements and the charge sheet, and on takeover of the file he told the court he was ready to proceed. The claim that certified proceedings were not supplied was untenable given counsel filed detailed submissions at the High Court.

Section 36(1) of the Sexual Offences Act permits but does not compel DNA sampling. Sexual offences are proved by evidence generally, not only scientific evidence (AML v Republic). Under section 124 of the Evidence Act a court may convict on the victim's sole evidence if satisfied of truthfulness with reasons, and section 143 bars any requirement of a particular number of witnesses. The complaints were general and factual, resting on concurrent findings the second appeal court could not disturb absent perversity.

Both subordinate courts made concurrent findings that the three ingredients were established: the complainant's age by medical documents and her oral evidence; penetration by her truthful testimony corroborated by the clinical officer and medical exhibits; and identity by recognition, the appellant being her neighbour. The appellant did not challenge age in cross-examination nor oppose the medical documents. Concurrent findings bind a second appellate court unless perverse, and none was shown.