JOHN MBURU V REPUBLIC[2012]eKLR clearly shows that the appellant and complainant were in close proximity. In those circumstances, there is no way that the complainant could have mistaken the appellant for another person. The appellant has raised the issue that the appellant could have screamed for assistance if indeed he was being sodomised. That may well be true. However, the complainant has stated that when he tried to raise the alarm, the appellant told him to keep quite. He has further explained that he could not scream because the prisoners would have mistaken it for an attempt to escape from prison with dire consequences. These are plausible reasons. I have no doubt at all that they represent the truth. In any case, the complainant stated under cross-examination that he was only 3 weeks old in the institution. That may well explain his naivety. The trial court too appreciated the circumstances under which the complainant was compelled not to raise the alarm and correctly so in my view. The trial court noted that this could be explained owing to the nature of prison custody. He could have been mistaken for an escapee. The appellant too has raised the issue of a frame up. However, there was no evidence of such frame up. There was no motive for the complainant to raise against the appellant a false complaint. Nor did the appellant raise the issue in his cross-examination of the complainant and the prison warden (PW2) nor in his defence. The issue has only cropped up in his submissions before this court. To me therefore it is an afterthought. In any event, I do not think that the appellant could have gone to the extent of injuring himself in the anus merely to frame the appellant. The appellant too has raised the issue of not being supplied with statements by the prosecution witnesses. The record shows that indeed he made the request for statements. However, the appellant never pursued. If anything the record shows that the appellant engaged the court in a ping pong game, seeking stall the case for as long as he wanted. This game plane forced the court at some point to commence the trial, his protestation notwithstanding. In any case, the appellant never raised the issue with trial court once the trial commenced. He cross-examined the witnesses called. I do not think therefore that failure to avail to him witness statements occasioned him a miscarriage of justice. With regard to the complaint that the trial court did not record correctly the proceedings, there is no such evidence. In any event, the appellant has not pointed out what was it that was not correctly recorded. With regard to failure to call other prisoners to testify, the evidence of the investing officer is that those prison witnesses had been released by the time the case was being heard. In any event, if they did not witness the incident, what were they coming to testify about? In my view, the prosecution case was clear. It was not doubtful. The evidence placed the appellant at the scene of crime and the commission thereof. This appeal therefore lacks merit and it is accordingly dismissed in its entirety. DATED, SIGNED and DELIVERED at MACHAKOS this 28TH dayof SEPTEMBER 2012. ASIKE MAKHANDIA JUDGE While the design, structure and metadata of the Case Search database are licensed by Kenya Law under a Creative Commons Attribution-ShareAlike 3.0 Unported License, the texts of the judicial opinions contained in it are in the public domain and are free from any copyright restrictions. Read our Privacy Policy | Disclaimer http://www.kenyalaw.org - Page 3/3 Powered by TCPDF (www.tcpdf.org)