PATRICK HAMISI v REPUBLIC[2012] eKLR 3. That in the first report to police, no description was given of the offender; 4. That the prosecution evidence was contradictory and raised doubts which should have been resolved in favour of the appellant; 5. That his rights under Article 49(1) C(II) of the Constitution were violated in that he was not given copies of the witnesses’ statements; 6. That the proceedings proceeded in a language he did n ot understand; 7. That the trial magistrate erred in failing to consider that all essential witnesses were not called; 8. That the appellant’s defence was not considered. As a first appellate court, this court is required to re-evaluate, and analyse the evidence and arrive at its own findings, while bearing in mind that this court did not have the opportunity to see and weigh the demeanor of the witnesses. The brief facts of this case are that the complainant, F.A.M, a child aged about 9 years was playing outside their house when the appellant who was her neighbour called her. She knew him as a neighbour. She entered in the appellant’s house after he asked her to help him wash utensils. After washing one cup she wanted to go out but the appellant got hold of her hand, dragged her to the bed, removed his trouser and her underpants, penetrated her genitalia by using his genitals; she felt pain and he threatened to beat her if she told anybody. She left his house but never told her parents or sister for fear that she would be beaten. She went back to school and on 5/15/09, she and informed her class teacher, B, because she had got wounds on her vagina. The teacher checked her, referred her to the matron and the head teacher directed that she be taken to hospital. She was treated. Her mother was called to school and went the next day. PW2, J.A.M, the mother of PW1, and a teacher at the School, confirmed that the complainant is one of her children. She recalled that on 27/5/2009, the Head teacher called her and informed her that the complainant was unwell. She visited the school on the next day, and was informed that the child had a sexually transmitted disease and had been taken to hospital. She took PW1 to hospital for further laboratory tests. She obtained a P3 form, took her to Gilgil Police Station. She said that PW1 mentioned Patrick as the one who defiled her and PW2 found him at his house and he was arrested. The complainant was examined by Grace Ngurani (PW3), a Clinical Officer at Bahati District Hospital. PW1 had a history of defilement. She observed that PW1 had rashes like eruptions on the labia, hymen was torn, had a whitish discharge. Urinalysis was done and pus cells were seen, blood cells in uniform. HIV test was negative and PW1 was treated for sexually transmitted infection. She opined that the degree of injury as grievous harm. B.G.G (PW4), a teacher at the Boarding Primary, recalled that on 27/5/09, while at school, she went to Class 4 when PW1 told her that she had pains on her thighs and after she took PW1 outside PW1 further informed PW4 that she had pains in her vagina. The Matron took PW1 to hospital and the doctor found that she had been defiled. PW1 informed PW4 that she had been defiled by a neighbour during the August holidays. Thereafter PW4 called the girl’s parents. L.W (PW5), the matron at the Primary School recalled that a teacher referred PW1 to her on the morning of 27/5/09. She checked PW1 and found pimples on her private parts, PW1 was later referred to the District Hospital, Nakuru on 28/5/09. PW1 informed PW5 that a neighbour defiled her. http://www.kenyalaw.org - Page 2/5