David Ndumba v Republic [2013] eKLR concurrent findings of facts arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did. (Reuben Karari s/o Karanja vs. Republic 17 EACA146)”. 13. We have considered the judgments from the two lower courts, the grounds of appeal, able submissions of counsel and the law. Mr. Kariuki submitted that the appellant did not understand the language used at the trial. Having perused the record we cannot help but note that the proceedings were translated in Kiswahili. Further from the cross examination which the appellant himself conducted at the trial it is quite evident that he understood the language used. Therefore, this ground of appeal must fail. 14. On the issue of discrepancies in the prosecution’s evidence we do note that PW5, Kathurimo testified that as they were going to get porridge Grace was left behind to take care of a patient who wanted to break the door while PW3, Grace, testified that she was left taking care of a woman who wanted to go to the maternity as F and Kathurimo went to get porridge. We also note that Grace testified that she saw Kathurimo running away and she stopped him and upon inquiring Kathurimo informed her that F was in the kitchen with the appellant; and on the other hand Kathurimo testified that after the appellant blocked him from entering the kitchen he went looking for Grace to inform her what happened. We concur with the learned Judge that this discrepancies did not in any way prejudice the appellant or occasion a miscarriage of justice. We further find that the said discrepancies were curable under Section 382 of the Criminal Procedure Code, which provides; “Subject to the provisions herein-before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” In Joseph Maina Mwangi- vs- Republic, - Criminal Appeal No. 73 of 1993, this Court held:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentences. 15. Mr. Kariuki urged us to find that the evidence adduced by F was not credible by virtue of the fact that she was a medical patient and no vior dire was conducted by the trial court to establish her competency as witnesses. Section 125 of the Evidence Act provides:“125(1) All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether body or mind) or any similar cause. 2) A mentally disordered person or lunatic is not incompetent to testify unless he is prevented by http://www.kenyalaw.org - Page 4/7