Abubakari Okumu Abiyeka v Republic

The substantive offence was correctly identified as defilement under section 8(1) and the particulars were adequate. The error lay only in citing the penalty subsection for a child aged eleven or less. The Appellant knew the allegation concerned a child said to be fourteen and defended on penetration and identity; nothing in his defence would have differed had subsection (3) been cited. Section 8(3) is a sentencing provision, not a lesser cognate offence under section 179.

PW3 and PW4 found normal genitalia, no injury, blood or spermatozoa, and irregular hymenal margins which could be traumatic, congenital or hormonal. No medical witness expressed the opinion that the hymen had been disturbed by penetration. Selecting the incriminating possibility converted conjecture into proof. Ground 3 succeeded only as a demonstration of misdirection, but penetration was otherwise proved by the complainant's tested evidence.

The OB entry was admitted as Defence Exhibit 1 and conceded by PW6, so it could not be rejected merely because its maker was not called; the trial court's failure to evaluate it was a material omission. However, the two police formulations had uncertain authorship and provenance, whereas the complainant's sworn testimony was tested in cross-examination and corroborated as to consistency by the medical history and PW1's evidence of disclosure. The court recorded its belief in the complainant's evidence as required by the proviso to section 124 of the Evidence Act.

Section 143 of the Evidence Act does not require a plurality of witnesses, but an adverse inference may arise where a material witness is not called and the adduced evidence is weak. The complainant gave direct evidence excluding Roney, and the Appellant admitted presence throughout the night. The Respondent's argument that the Appellant had to prove Roney committed the offence was legally incorrect.

The constitutional question was introduced only through submissions without amendment under section 350(2) of the Criminal Procedure Code. The Supreme Court in Mwangi held that a minimum sentence preserves discretion above the statutory floor but not below it, and that constitutional validity of such provisions requires a properly pleaded and fully argued case before the High Court. Section 8(3) therefore binds the Court unless and until declared unconstitutional in a properly constituted proceeding.

Following Ahamad Abolfathi Mohammed, 'take account' requires actual credit for custody. The Appellant was arrested on 2 November 2018, released on bond after the surety was accepted on 22 May 2019, remanded upon cancellation of bond on 24 April 2024, and sentenced on 12 June 2024. No credit was given for either custodial period. Exact days are to be verified from remand warrants, surety-release documents and prison records.