M.W v Republic [2013] eKLR PW3 Police Constable Sheilla Kiptum of Turbo Police Station testified that she received a complaint from PW2 that the Appellant had been defiling PW1. That upon investigations it was found that the Appellant was H.I.V positive and had been attending Ampath Clinic for treatment of the disease. PW5 Jane Lamoko, who should have been named as PW4 is the Clinical Officer who examined both PW1 and the Appellant. She also produced the complainant's P3 form. Her testimony was that, upon examination, PW1's genitalia had tears on both walls. She noted she had white smelly discharge. Laboratory tests revealed few white cells and few epithelial cells. She concluded that an offence of incest had been committed. She further testified that it was confirmed that the Appellant was HIV positive and had been attending the Health Centre's Ampath Clinic in this regard. PW6 (who should have been named as PW5), A. W testified that she had lived with the Appellant as husband and wife for a period of six months. She said that she did not know that the Appellant had been defiling PW1. That she learnt that the Appellant had been defiling PW1 from a teacher and the police. The Appellant gave an unsworn statement of defence in which he stated that he had lived with PW1 for a period of ten years but denied having defiled the minor. However, all the prosecution's evidence crystallized together was consistent and not contradictory. PW1 having lived with her father (Appellant) for such a long period would not have had a reason to falsely implicate him. It is on record how traumatized she was as she began to account the beastly act her father meted on her. It is factual that PW1 was the only eye witness to her case. But her testimony was candid leaving no doubts that the court believed in her. The Appellant took advantage of the frequent absence of his second wife (PW5) to defile his daughter. The trial court noted PW1 was brilliant enough to tell the truth and respectively found her evidence credible in the following words:"The minor was very clear on what happened. There was nobody at home. Accused person's second wife was away. I find the accused person had opportunity to defile the minor. The girl is brilliant. I am satisfied that she is truthful. Her testimony is convincing. Accused person's defence is a mere denial ...." Moreover the proviso to Section 124 of the Evidence Act which reads thus; "Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth." In this regard, it was proper of the trial Magistrate to solely rely on testimony of PW1 which she believed in. The evidence of PW2, 3, 4 and 5 further corroboratesd that of PW1. It is therefore doubtless the Appellant defiled PW1 whom he knew was her daughter. He also knew that he was H.I.V positive and without the interest of his own daughter blantly had sexual intercourse with her notwithstanding the possible attendant results. Accordingly, grounds of appeal numbers 3, 4 and 6 must fail. In light of the foregoing, I also overrule ground of appeal number 5. The prosecution is not restricted to call a particular number of witnesses in its case. Of paramount importance is that the witnesses it calls http://www.kenyalaw.org - Page 5/8