Joseph Nakole Emathe v Republic

Section 31 of the Sexual Offences Act and Article 50(7) of the Constitution permit appointment of an intermediary, whose role is to relay the witness's evidence rather than give their own. The prosecutor applied for the complainant's mother to be appointed, but the trial magistrate instead conducted a voir dire, found the minor intelligent enough to give unsworn evidence, and heard PW1 and PW2 as substantive witnesses subject to cross-examination. Since no intermediary was ever appointed, the complaint about procedure is unfounded.

The Mohamed Abdi Mahamud principles govern admission of additional evidence on appeal. The certificate annexed to the appeal was never produced at trial or on first appeal, no explanation was given for its non-production, and nothing from the Registrar authenticated the correction of dates. The trial court relied on the certificate produced by the appellant's mother showing birth on 7th December 2000, and the High Court upheld that finding. He was therefore 20 at the time of the offence and not a child.

The complainant's age of 10 years was established by her Birth Certificate and corroborated by her mother's evidence; the appellant was identified by recognition as a cousin. Penetration may be proved by the victim's direct evidence or circumstantial evidence, and under section 124 of the Evidence Act a court may convict on the victim's evidence alone if satisfied of the truth and reasons are recorded. The minor's narration was corroborated by the clinical officer's finding of an old hymen tear and habitual sex.

Under section 143 of the Evidence Act no particular number of witnesses is required to prove any fact. The evidence does not disclose that Mutua was present during the incident, so his evidence would have been of little or no value. The prosecution is not expected to call a superfluity of witnesses.

Relying on the Supreme Court's decision in Republic v Mwangi; ISLA (Amicus Curiae), the Court held that section 361(1) explicitly bars the Court of Appeal on second appeals from hearing issues of fact, including the severity of sentence, except where the sentence was enhanced by the High Court. The life sentence here was imposed by the trial court and upheld, not enhanced, so the ground fails.