WELLINGTON WANYONYI V REPUBLIC[2013]eKLR
appellant, he was sentenced to imprisonment for a term of 15 years.
The appellant felt dissatisfied with the conviction and sentence. He appealed against both to the
High Court at Kitale. That appeal was heard by Ombija, J. who dismissed it in a judgment dated 4th
April, 2011 but delivered by another Judge on 7th April, 2011. In dismissing the appeal, the learned
Judge stated inter alia as follows;“Even in the absence of an eye witness, I am persuaded that the injuries to the genitals of the
complainant, as disclosed by medical evidence, corroborates the fact of penetration as defined
in Section 2 of the Sexual Offences Act, NO. 3 of 2006.
The complainant was positive that it was the appellant who severally defiled her. The
complainant's evidence was straight forward, consistent and unshaken in cross-examination.
The complainant's age was confirmed by medical exhibit evidence as 15 years. This is
supported by the evidence of PW2 and PW3 who were her parents. …....................................
Against that backdrop of evidence, I find that the prosecution had fully discharged its burden
under the law. The appellant was properly convicted. The case was proved beyond any
reasonable doubt.
On sentence the appellant was given 15 years imprisonment. The maximum allowed under the
law is 20 years. In my view the sentence was not excessive. It was reasonable given all the
circumstances of that case.
For the above reasons the appeal against both conviction and sentence is dismissed.”
Undeterred, the appellant has moved to this Court challenging that decision. He filed six
grounds of appeal which were in summary that the prosecution case was not proved beyond reasonable
doubt; that that evidence of the complainant should not have been relied upon in the absence of an eye
witness to the incident; that evidence of the Clinical Officer who found that complainant was HIV
negative and was not pregnant should have been considered in favour of the appellant by the High
Court; that as he was examined and found to be HIV positive, it should have been considered that the
appellant could have been infected if she had been defiled as she alleged and lastly that the learned
Judge erred in rejecting his appeal.
The appellant had a posho mill situated about 50 metres from the house of PWS. The evidence
on record was that he was the one working at that Posho Mill most of the time although sometimes his
wife would operate the mill in his absence. CN (PW1) was niece to EN (PW3) wife of P. She was living
with P and E and had lived with them since her early childhood to the extent that she was for all intents
and purposes treated as their daughter. She said during voire dire that she was 14 years old and was
born in 1992, but her aunt E gave her age as about 15 years old and was in Std 5 at W Primary
School. Sometime in the month of December, 2006, E sent her to mill maize at the appellant's Posho mill
nearby. She obliged. Once at the Posho mill C said in evidence that although she was there before
others, and should have been attended to earlier, the appellant who was the one operating the mill that
day made sure that her maize was the last to be ground and that was after the other customers had
left. He then gave the complainant mandazi and two sweets just before milling her maize. C thereafter
returned home. The following day C was sent to the Posho mill again with maize for milling. He found the
appellant who milled her maize. There were no other customers. The appellant then asked her to pay for
the sweets and mandazi he had given her the previous day. She was surprised for she was not aware
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