Kennedy Chimwani Mulokoto v Republic [2013] eKLR The Clinical Officer noted that the little girl's genitalia was reddened and her hymen was torn. He therefore concluded that the little girl had been defiled. The clinical officer (PW4) also examined the appellant. All the laboratory tests conducted on the appellant, were negative. PW4 told the court that the laboratory tests conducted on the little girl were also negative. That means that both the appellant and the complainant had no diseases. When the appellant was put to his defence, he denied committing the offence. He said that he was arrested at his house, where he was preparing lunch. It is noteworthy that the appellant opted not to cross-examine any of the prosecution witnesses. That implies that the evidence tendered by the prosecution was not challenged at all. The said evidence proved that the little girl had been sexually molested. The evidence also placed the appellant squarely at the scene of crime, where he was found wearing only his T-shirt. His trousers together with the panty of the little girl were recovered from the maize plantation where the offence had been committed. All that evidence proves that it was the appellant, and nobody else, who had defiled the little girl. Pursuant to the provisions of Section 31 of the Sexual Offences Act, a witness may be declared vulnerable on account of factors such as age, trauma, possibility of intimidation, the nature of the subject matter of the evidence or any other factor the court considers relevant. In this case, the court noted that the little girl was unable to talk, because of her tender age. Pursuant to Section 31(5) of the Sexual Offences Act, the learned trial magistrate appointed the mother of the little girl as an intermediary. When the mother of the little girl gave her evidence, she was deemed to be giving evidence on behalf of that little girl. Section 31(7) recognizes the fact that a vulnerable witness can be allowed to give evidence through an intermediary. Therefore, for all intents and purposes, when the mother of the little girl gave evidence, she did so as a legally recognised intermediary, for and on behalf of the little girl. Such evidence was admissible. The said evidence of the intermediary was corroborated by the evidence of all the other prosecution witnesses. Therefore, pursuant to Section 31 (10) of the Sexual Offences Act, the conviction of the appellant was founded upon a sound evidentiary basis. There is no merit in the appeal. It is therefore dismissed. I uphold both the conviction and the sentence. DATED SIGNED AND DELIVERED AT ELDORET THIS 12TH DAY OF NOVEMBER, 2013 http://www.kenyalaw.org - Page 3/4