David Ndumba v Republic [2013] eKLR his condition from understanding the questions put to him and giving rational answers to them.” Based on the foregoing we concur with the following findings by the High Court:“At page 2 of the judgment of the learned trial magistrate who took the evidence of the two witnesses, and therefore had the occasion to determine the level of the understanding of these two witnesses observed: ‘The complainant testified before me. The court could not gauge the extent of her mental illness. But she was fairly comprehensible.’ From the foregoing statement, the learned trial magistrate after observing the complainant, and considering the answers she gave to the questions put to her at the trial, formed the opinion that she understood the questions and gave rational answers to those questions, and therefore she was comprehensible. I am satisfied that the complainant was a competent witness and that her evidence was comprehensible and therefore should be considered.” We therefore, find no reason to interfere with the concurrent finding of facts by the two lower courts on the competency of F. 16. We find that despite the medical evidence showing that the appellant did not suffer from the same sexual transmitted infection as F did not in any way exonerate him .This is because we are of the considered view that the evidence of F was corroborated by George who found the appellant red handed having sexual intercourse with F. Grace also testified that when she found F in the kitchen she was fidgeting and was pulling on her clothes and that F told her that the appellant had raped her. Further, medical evidence which clearly showed that F had had sexual intercourse. We concur with the two lower court’s that there was overwhelming evidence that the appellant had sexual intercourse with F who lacked the necessary mental capacity to grant her consent. 17. The appellant argued that the charge sheet was defective for including Section 7 of the Sexual Offences Act which was not applicable in this case. We agree that the offence was not committed within the view of a family member, a child or a person with mental disability and therefore the particular section was not applicable. However, we are of the view that the inclusion of the said section is curable under Section 385 of the Criminal Procedure Code. Furthermore we find that the appellant was aware of the nature of the offence he was charged with and he suffered no prejudice. Therefore, this ground fails. 18. Having perused the record we cannot help but note that the appellant’s defence was considered by the trial court which found that there was no reason for Grace and Geoffrey to give false testimony against him. On the issue of the alternative charge we find that nothing turns on the fact that the trial court did not make a pronouncement on the same. In M.B.O. –vs- Republic, – Criminal Appeal No. 342 of 2008, this Court held, ‘The practice of charging offences in the alternative is one of abundant caution and that is why no finding is made on such charge once there is ample evidence to support the main charge.’ 19. Lastly, we wish to consider whether enhancement of the appellant’s sentence by the High Court was legal. The principles upon which an appellate Court will act in exercising its discretion to review or alter a sentence imposed by the trial court have been firmly settled as far back as 1954, in the case of Ogolla s/o Owuor, (1954) EACA 270 wherein the predecessor of this court stated: http://www.kenyalaw.org - Page 5/7