PATRICK HAMISI v REPUBLIC[2012] eKLR the proceedings. This court is convinced that the proceedings were conducted in a language that the appellant understood and the allegation that he did not understand is an afterthought. As to whether the appellant’s defence was considered, the appellant’s defence comprised four sentences. He denied any knowledge of the offence and concluded that it was all a lie. It was a bare denial. It did not at all displace the evidence adduced by the prosecution witnesses. The trial court did consider that the defence was a mere denial and believed the evidence of the prosecution to be corroborated and credible. The appellant contends that the prosecution evidence was full of contradictions and inconsistencies. He submitted that whereas PW1 talked of having informed PW4 of what happened to her on 5/5/2009, PW4 talked of 27/5/09. It is true that PW1 talked of having informed her teacher (PW4) about her ordeal on 5/5/2009, but PW1 talked of 27/5/09. The matron (PW5) who checked PW1 also talked of 27/5/09. Similarly PW2, PW1’s mother recalled that the Headteacher of the School where the complainant went to school asked her to go to the school on 27/5/09 and she went to the school on 28/5/09, after the incident was discovered. I find that PW1 must have informed PW4 of her ordeal on 27/5/2009. This court notes that PW1 was a child of 9 years. Her birth certificate was produced in evidence. It indicates that she was born on 22/7/1999. By the time she testified she was about 10 years. She was a child of tender age who may not have appreciated dates. The evidence of PW2, PW4 and PW5 is consistent as to when PW1 informed PW4 of her ordeal and the discrepancy in the date does not go to vitiate the prosecution evidence. The contradiction is not material and would not prejudice the defence case in anyway. The appellant also submitted that his rights under Article 49(1) (c) of the Constitution were infringed in that he was not given witnesses statements and was not therefore able to prepare his defence. Article 49 provides for rights of arrested persons. Right to evidence of prosecution is under Article 50(2)(f) of the Constitution. At no stage, during the trial, did the appellant allege that he was denied the witness statements which are ordinarily issued to accused persons at the time of plea. The appellant never complained to the court or prosecution, he only cross examined the witnesses and entered a defence. This allegation is an afterthought and this court finds that it is not true and it is hereby dismissed as such. In any event such allegations of infringement of fundamental rights should be raised at the earliest time possible. The complainant was found to have been infected with a sexually transmitted infection and was treated for it. The court was not told why the appellant was not taken for medical examination to ascertain whether he too was infected. Despite that omission the court finds that the offence was committed during the daytime; it was committed by a person well known to the complainant. There was no reason for the complainant, a child of tender age to frame the appellant. The appellant never disclosed why he could have been framed. I find that even if there was no other independent evidence to corroborate that of PW1, she testified on affirmation, her evidence was tested in cross examination, the trial court believed her and I am satisfied that the trial court arrived at the correct finding, that it is the appellant who committed this heinous offence on a small girl, who was his neighbour. It is interesting that the police never took the appellant for medical examination to ascertain whether or not he had a sexually transmitted infection. That was necessary to prove the second charge of whether or not the appellant intentionally, knowingly and willfully infected the complainant with a veneral disease. Failure to take the appellant for medical examination left a gap in the prosecution case. Despite the fact that the complainant identified the appellant as the person who defiled her, it does not automatically follow that the second charge was proved. I find that the prosecution did not make any effort to prove the second charge and I would accordingly find that it was not proved beyond any http://www.kenyalaw.org - Page 4/5