Josam Okonda Oyombe v Republic

with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 9. I find that the particulars of the charge sheet provided herein, were sufficient, as it contained reasonable information as to the nature of the offences with which the Appellant was charged. Essential Witnesses 10. According to the Appellant, his father was an essential witness. 11. So too, was the Appellant’s niece, whom the Complainants used to go looking for: the said niece is named A. 12. PW2 testified that the father of the Appellant had gone to her house, and had informed her that he had seen the Complainants go into the house of the Appellant. 13. It is that report which prompted PW2, (who is the mother of PW1), to go to the Appellant’s house. 14. Upon arrival at the said house, PW2 found the door locked. 15. She testified that the Appellant had, initially, refused to open the door. 16. And when he eventually opened the door, the Appellant denied the assertion that the Complainants were inside his house. 17. Nonetheless, PW2 testified that the Complainants were seen as they were running away from the Appellant’s house. PW2 testified that the Complainants exited from that house through a hole in the wall. 18. However, the children were pursued and brought back to the home. 19. The Appellant’s father did not testify. Considering that he is the person who had seen the Complainants entering the Appellant’s house, his testimony could have given information about the said entry. 20. However, I hold the considered view that because both PW2 and PW3 went to the Appellant’s house, from where the Complainants were seen running away, the absence of evidence from the Appellant’s father did not weaken the case against the Appellant. 21. The first Complainant testified that she recognized the Appellant. Therefore, this was a case of recognition. 22. As regards the Appellant’s niece, (A), she was not present at the Appellant’s house when the incidents took place. 23. Therefore, A was not an essential witness. Date of the Incident 24. The charge sheet specified that the offences were committed on 5 th January 2013. 25. The Appellant submitted that because the prosecution witnesses testified about incidents which occurred on 13 th January 2013, the said evidence was inconsistent with the particulars of the charge sheet. 26. PW1 testified that she was defiled on 5th January 2013, as well as on 3 other occasions. 27. PW2 said that the children had been seen entering the Appellant’s house on both 5 th and 12th January 2013. 28. PW3 is a grandmother of both the Complainants. She testified that after the Appellant was arrested, she escorted him with the Complainants to the sub-chief. 29. PW4 was the Assistant Chief of Emaloba. On 13th January 2013, at about 5.00pm, he received PW2, PW3, together with the 2 Complainants, at his office. He advised PW2 and PW3 to report the case of the alleged defilement, at the Luanda Police Station. 30. The Assistant Chief also testified that he handed over the accused to the police at Luanda Police Station. 31. During cross-examination, the Assistant Chief told the court that the Complainants had told him that it was the Appellant who had defiled them. 32. PW4 further testified that the Appellant had, reportedly, defiled the Complainants more than once.

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33. However, it was not until 13th January 2013 when PW4 first received a report about the defilements. 34. After PW4 testified, the trial court ordered that D.A, who was one of the Complainants, should undergo mental assessment at the Jaramogi Oginga Odinga Teaching & Referral Hospital, in order to ascertain if she had the mental capacity to testify. 35. The said order was granted after it was asked for by the prosecution, and when the Appellant told the court that he had no objection to it. 36. However, there is nothing in the Court records to show whether or not DA ever underwent mental assessment. 37. I am unable to ascertain why there had been a need to have the mental capacity of that Complainant verified. 38. But it is clear that DA did not testify at the trial. Her failure to testify was not explained to the court. 39. In my considered opinion, the Complainant, DA, was an essential witness. 40. When she failed to give evidence at the trial, and in the light of the fact that her said failure was not explained, I find that the Appellant was deprived of the opportunity to cross-examine her. 41. I appreciate that PW1 testified that DA was defiled in her presence. 42. I also appreciate the presence of medical evidence that appeared sufficient to prove that DA. was defiled. However, that is not, in my considered opinion, an acceptable substitute for the evidence which the Complainant could have tendered. 43. More significantly, the failure by the Complainant (DA) to testify had deprived the Appellant of his right to test her evidence through cross-examination. To that extent, the Appellant’s right to a fair trial was violated. 44. Accordingly, I find that the conviction on Count 2 cannot be sustained. 45. But in relation to Count 1, there is sufficient and compelling medical evidence, proving that MAC was defiled. 46. The Complainant recognized the Appellant as the perpetrator. 47. And the age of the Complainant was proved through the Clinic Card. I find that the said Clinic Card was a document that had been issued in the ordinary course of business, when MAC was receiving medical attention. 48. It is not a document that was created for the purposes of the case. 49. The document is an official record, which was made in the discharge of official duty, by the medical personnel who were providing medical attention to the Complainant in question. Therefore, pursuant to Section 38 of the Evidence Act, the Clinic Card was admissible in evidence. 50. In the result, the conviction on Count 2 is quashed. 51. However, the conviction and sentence on Count 1 are upheld. DATED, SIGNED and DELIVERED at KISUMU This 11thday of March 2020 FRED A. OCHIENG JUDGE

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