CHARLES MACHARIA MUTHONI v REPUBIC [2012] eKLR “As we were leaving, we saw five people sitting in the stalls. They followed us to where we were buying candles. They started running after us. I identified the accused person. He called me. He pushed me onto the ground. He undressed me. He removed my shorts and my pant. He covered my mouth with his hand. I could not scream. He raped me. The other four were holding my hands and legs.” There is also evidence that the complainant told her sister, P.W.2 and the police immediately after the incident that it was the appellant who had defiled her. In terms of the provisions of Section 124 of the Evidence Act, the trial magistrate found that the complainant was a truthful witness. In terms of Section 10 of the Sexual Offences Act, the offence of gang rape is committed where a person commits the offence of rape or defilement in association with another or others or with a common intention, a person, in the company of another or others commits the offence of rape or defilement. The complainant’s evidence was that only the appellant raped her but that he was assisted by four others who held her hands and legs. The clinical officer found that the complainant’s hymen was broken and it appeared to have been broken earlier, suggesting in my view that the complainant had had sexual intercourse before the date in question. In view of the complainant’s clear account of events and the fact that the trial magistrate who observed her demeanour found her to be truthful coupled with the medical evidence, I find that the prosecution proved the charges against the appellant. His defence did not address the accusation alleged against him. The defence was displaced by the prosecution evidence. In the result, this appeal fails and is dismissed. Dated, Signed and Delivered at Nakuru this 27th day of March, 2012. http://www.kenyalaw.org - Page 4/5