WELLINGTON WANYONYI V REPUBLIC[2013]eKLR
that they were to be paid for. The appellant hid her flour and then pulled her towards the mill, removed
her pant and defiled her. She tried to scream but he threatened to cut her with a panga if she
screamed. After he was through, he left her to go home. She took her maize flour and went home. She
did not tell anyone. On another day, thereafter, the appellant again defiled her at a corner of the Posho
mill. He then promised to take care of the child if she got pregnant. Thereafter it was a routine habit and
C continued going to the posho mill from time to time and would be defiled by the appellant. This
continued for about three (3) months and despite the promises made to her, the appellant did not take
her. She developed fear of being infected with AIDS or being made pregnant. She then reported the
incidents to P and E who organized a meeting with the appellant in the presence of a village Elder
(Mukasa). That meeting did not yield much for at first the appellant had admitted that C report was
true. Later he became hostile and walked out of the meeting never to return. A report was made to the
Police and C was given P3 by the Police. Linus Ligale (PW4) a Clinical Officer at Kitale District Hospital
examined the complainant and confirmed that she was about 15 years of age; had torn hymen and
formed the opinion that some form of sexual harassment had been done on her that had torn her private
parts. She was found to be HIV negative and was not pregnant. The appellant was arrested and taken
to Nyayo Police Patrol Base and was later was handed over to Kitale Police Station. PC(W) Lilian
Wekesa (PW6) investigated the case after the arrest of the appellant. The appellant was taken to Kitale
District Hospital where Reuben Bunyasi (PW5) a Clinical Officer examined him and found that he was
HIV positive. The appellant was thereafter charged as stated hereinabove. When put on his defence, the
appellant said that on 17th March, 2006 (sic) he was summoned to a meeting by a village elder on
grounds that it was alleged he had made a certain girl pregnant. He answered the summons from the
village Elder. He thereafter went home where he stayed for two (2) weeks. He was arrested and sent for
HIV test. C was summoned to the Police station but as she failed to respond, the appellant was released
on Police bond. After two days, he went to court. He denied ever committing the offence.
Before us, the appellant conducted his own appeal. He put in written submissions which we
have perused and considered fully.
This is a second appeal and that being so, by dint of the provisions of Section 361(1)(a) of the
Criminal Procedure Code, only matters of law come up for consideration. The appellant's Posho mill and
shop are only 50 metres away from the home belonging to P and E where the complainant lived. The
complainant was sent to that Posho mill on many occasions. The appellant was most of the time working
at the Posho mill and was thus milling complainant's maize. The complainant, at the commencement of
her evidence clearly identified the appellant. We have no doubt in our minds, like the trial court and the
first appellate court that the complainant properly identified the appellant as the person who molested
her on all those occasions. In fact they even discussed the fate of the complainant during those
occasions when he defiled her. The Clinical Officer's evidence was clear that the complainant was
defiled and her hymen was torn. There was no suggestion at any stage that any other person could have
been responsible for that act that resulted into the complaint's hymen being torn.
The appellant makes heavy weather of the finding by Linus that the complainant was HIV
negative while Reuben, another Clinical officer tested him and found him HIV positive. His view was that
if he had defiled the complainant, then she would have been infected. In our considered view, nothing
turns on those two findings by the Clinical Officers. First, it is not a must that where an HIV positive
person has carnal knowledge of an HIV negative person then the HIV negative person must be
infected. All we know is that whereas it is likely that such a scenario may ensue, it is not a must and
there must be several occasions when infection may not be the consequence of sexual intercourse
between the two. Secondly, and in any case there are cases of discordant couples. These are situations
where one HIV positive person can live with another who is HIV negative person and yet no infection
takes place. We thus do not attach any importance to that piece of medical evidence.
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