Stanley Nkunja v Republic [2013] eKLR spermatozoa on her thighs. C reported the incident to PW3, John Muhidi (John), the community policing officer, who arrested the appellant and took him to (Particulars withheld) Police Post where he was re-arrested by PW5, PC Mumo Mutua. 4. PW4, Ali Gebaba (Ali), a clinical officer at Nyambene District Hospital produced a P3 form filled on 14th February, 2008 by one Banis Mutie. According to Ali, V had a bruised labia minora with a partially broken hymen. He testified that as per the P3 form, there was no bleeding of the vagina at the time of examination and that there was evidence of attempted vaginal penetration but that the penetration was not complete. At the time of commission of the said offence, V was 9 years old. 5. The appellant, in his defence, gave an unsworn statement. He denied committing the offence and stated that the charges were a fabrication. He testified that V father held a grudge against him for demanding Kshs. 490/= for the miraa he had harvested. 6. Being convinced that the prosecution had proved its case to the required standard, the trial court convicted the appellant and sentenced him to 20 years imprisonment. Aggrieved with the trial court's decision the appellant filed an appeal in the High Court. The High Court vide a judgment dated 9th December, 2010 dismissed the appellant's appeal and enhanced his sentence to life imprisonment. It is against that decision that the appellant has filed this current appeal based on the following grounds:The learned Judge erred in law when re-evaluating the evidence by failing to hold that section 72(3) of the former Constitution had been violated. The learned Judge erred in law by failing to hold that the prosecution's evidence that was contradictory and could not be relied upon. The learned Judge erred by failing to hold that PW1 was never medically examined from Mau General Hospital where the police took her. 7. During the hearing of this appeal, the appellant, who appeared in person, relied on his written submissions that were filed on the 24th June, 2013. He submitted that his rights under section 72(3) of the former Constitution had been violated because he was arrested on 12th February, 2008 and he was arraigned in court on 15th February, 2008. He contended that the prosecution had not given an explanation for the delay. The appellant submitted that the prosecution's evidence was full of contradictions, in that V testified that the incident took place on 12th February, 2007 while the charge sheet indicated that the incident took place on 12th February, 2008; V indicated in her testimony that the incident occurred at [Particulars withheld] Market while the charge sheet indicated that the incident occurred at ([particulars withheld] Location; and that V testified that she went home and told her mother about the alleged defilement while C testified that she went to the hotel where she saw the appellant coming from the kitchen followed by V who told her what happened. The appellant further submitted that V was never sexually assaulted because the evidence on record showed that she never bled. He complained about his sentence being harsh. 8. Mr. K.M. Lugadiru, Senior Public Prosecution Counsel, in opposing the appeal maintained that the appellant's conviction was safe and based on overwhelming evidence produced before the trial court. He submitted that the appellant never raised the issue of the alleged contravention of his rights under Section 72(3) of the former Constitution before the trial court and the High Court. He argued that this being a second appeal, this Court was bound by the concurrent findings of the two lower courts. While admitting that the appellant was not given notice that his sentence would be enhanced, Mr. Lugadiru submitted that the learned Judge was correct in enhancing the sentence to correct the illegal sentence issued by the trial court. 9. This being a second appeal and by dint of Section 361(1) of the Criminal Procedure Code, Chapter 75, Laws of Kenya, this Court's jurisdiction is limited to matters of law only. In http://www.kenyalaw.org - Page 2/5