SNT v Republic [2013] eKLR “Subject to the provisions herein-before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” See also the case of; Joseph Maina Mwangi -vs- Republic Criminal Appeal No. 73 of 1993 where this Court Tunoi, Lakha and Bosire JJA, held:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentences.” (13.) The ground of appeal regarding the establishment of the age of the complainant was only raised by the appellant in this second appeal. This is a matter of fact that should have been raised before the trial court. Nonetheless, we find that the prosecution's evidence that the complainant was 11 years old at the time of the sexual assault was supported by the treatment notes and the P3 form; the clinical officer also examined the complainant formed the opinion that she was 11 years old. All the aforesaid evidence was not at all challenged before the two courts below. The two courts arrived at concurrent findings on fact that the complainat was 11 years old at the time of the sexual assault. Under the provisions of Section 361 of the Criminal Procedure Code, the appellant is precluded from revisiting matters of facts. (14.) The ground of appeal that the High Court failed to subject the entire evidence to fresh analysis is oft’ relied on as it touches on a points of law and facts. In this appeal the appellant was charged with the offence of incest against the provisions of Section 20(1) of the Sexual Offences Act which provides:“Any male person who commits an indecent act or an act persons which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years. (15.) The trial magistrate who had the advantage of hearing and seeing the witnesses testify was satisfied that the complainant’s evidence was truthful. The complainant’s evidence was supported by that of her mother and the clinical officer who treated her. Under the proviso to Section 124 of the Evidence Act, Chapter 80, Laws of Kenya provides:“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.” (16.) This is what the trial magistrate observed in part of the judgement that shows the evidence of the http://www.kenyalaw.org - Page 4/7