Dennis Okello Mateba v Republic

The Court accepted that the medical report did not conclusively prove penetration, but held that penetration may be established by the victim's evidence, medical evidence or other cogent evidence. The blood from the complainant's private parts, PW2's observation of the legs-astride position, and the inference that the appellant bought emergency contraceptive tablets to prevent pregnancy together constituted circumstantial evidence of penetration. The menstruation theory was discounted because PW5 testified menstruation began hours after the assault.

The Court relied on the proviso to Section 124 of the Evidence Act permitting conviction on the uncorroborated evidence of a child of tender years if the court, for reasons recorded, is satisfied the child is telling the truth. The trial magistrate had warned herself on the evidence of PW1 and PW2 and on the need for corroboration, and the first appellate judge re-evaluated and upheld that approach. The appellant failed to demonstrate the minors were not credible.

Applying John Nyaga Njuki, the Court held that discrepancies only matter if they create doubt as to the guilt of the accused. Here the identification of the appellant and the corroborative evidence overwhelmingly outweighed any inconsistency, so the discrepancies neither dented nor dislodged the prosecution case.

The Court held that a given set of facts may support a charge under several statutes and that it is not for an accused person to determine the provision under which he is charged or sentenced. The complaint about charging under Section 8(1) as read with Section 8(3) instead of Section 8(2) was raised for the first time on appeal, and no prejudice or miscarriage of justice was demonstrated.

Following Bernard Kimani Gacheru, sentence rests in the discretion of the trial court and an appellate court will not interfere absent manifest excessiveness or a material oversight. The appellant was sentenced to the statutory minimum, and the Court, noting the stupefaction of the complainant with herbal concoction and the appellant's masquerade as a pastor, found the sentence proper. The Court was cognizant of Muruatetu on the unconstitutionality of mandatory sentences.