John Nzamba v Republic

Appellant carrying the complainant on the shoulders. Pw3 then saw the appellant removing the complainant’s pants. Pw3 confronted the Appellant. The Appellant then started running away but he was given chase and caught. The Appellant was escorted to the Chief’s camp then to the police station and was subsequently charged with the offences herein. 6. In his defence, the Appellant stated that he was arrested by three men who took away his kshs. 1,300/=. That when they released him he ran home to inform his mother what had happened. The following day he was re-arrested by two of the men and escorted to the Chief’s Office. The Appellant blamed this case on a grudge with the complainant’s mother. The Appellant further stated that the grudge arose after the complainant’s mother was found with a donkey which had been stolen from the Appellant’s family. The Appellant further stated that he had a long dispute with one Kilonzo (pw3). The Appellant testified stated that the complainant’s mother (pw1) and Kilonzo (pw3) lived together. He blamed them for framing him up with this case. 7. At the conclusion of the case, the trial magistrate convicted the Appellant in the alternative count of indecent act with a child. The Appellant was sentenced to ten (10) years imprisonment. 8. The Appellant was aggrieved by both the conviction and sentence and appealed in this court on grounds that can he summarized as follows: a. That the prosecution case was not proved due to contradictory and inconsistent evidence that lacked corroboration. b. That the investigating officer did not visit the scene. c. That no medical evidence was adduced. d. That the prosecution failed to call crucial witnesses. e. That the defence case was not considered. 9. During the hearing of the appeal, the Appellant relied on written submissions. The submissions essentially reiterate the grounds of appeal. 10. The appeal was opposed by the state. The learned counsel for the state submitted on the sufficiency of the prosecution evidence. 11. This being a first appeal, I am duty bound to re-evaluate the evidence and the record afresh and come to my own conclusions and inferences– See Okeno –vs- Republic (1972) EA 32. 12. The five year old complainant (pw2) testified after the case had carried out a voir dire and was satisfied that she understood the meaning of oath. 13. The complainant’s evidence that the Appellant carried her to the bush and removed her pants was corroborated by that of pw3. It was the evidence of pw3 that he saw the Appellant carrying away the complainant and also saw him removing her pants. The offence took place in broad day light. It was evidence of recognition by both the complainant (pw2) and pw3. Both witnesses knew the Appellant as a neighbour. Pw3 denied having any grudge with the Appellant. 14. The complainant’s mother (pw1) testified that the complainant told her that the accused took her to the bush and removed her pants. The version of events given by the complainant to her mother on the material day is consistent with the complainant’s evidence in court. The complainant’s mother denied the suggestion by the Appellant that they had a dispute over a donkey.

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15. Pw4 PC Bernard Mahanda gave the evidence that confirms a report was made and the investigations carried out. 16. The defence by the Appellant that the case was framed up on him is not believable due to the strong prosecution evidence against him. The Appellant was caught red handed with the child. 17. After evaluating the evidence afresh, I find no reasons to differ with the finding of the trial magistrate who had the benefit of seeing the witnesses testify and observing their demeanor. 18. On whether the prosecution failed to call crucial witnesses, the answer is found in the following dictum in the case of Bukenya & Others –vs- Uganda (1972) EA 549, at page 550 where the Court of Appeal for East Africa stated:“It is well established that the Director has a discretion to decide who are the material witnesses and whom to call, but this needs to be qualified in three ways. Firstly, there is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. Secondly, the court itself has not merely the right, but also the duty to call any person whose evidence appears essential to the just decision of the case. Thirdly, while the director is not required to call a superfluity of witnesses; if the calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled under the general law of evidence, to draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution.” 19. The failure to visit the scene or adduce medical evidence is not fatal to the prosecution case. The proviso to section 124 of the Evidence Act stipulates as follows:“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 20. The appeal has no merits and is dismissed. …………………………… B. THURANIRA JADEN JUDGE Dated and delivered at Kitui this 29th day of January 2015. …………………………… B. THURANIRA JADEN JUDGE

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