David Ndumba v Republic [2013] eKLR
3. The prosecution called a total of six witnesses in support of its case. It was the prosecution’s
case that on 21st November, 2007 at around 6:00 a.m PW3, Grace Kuriko (Grace), a nurse at the
Isiolo District Hospital woke up two mental patients, PW1, FK (F) and PW5, Paul Kathurimo
(Kathurimo), to go and get porridge from the kitchen hospital. As Grace was escorting both F and
Kathurimo to the kitchen she met another patient who needed her assistance and she directed F
and Kathurimo to go to the kitchen and she would follow them. Upon reaching the Kitchen the
appellant who was the cook directed F and Kathurimo to use the back door since the front door
was closed. When F had entered the kitchen, the appellant blocked Kathurimo from entering the
kitchen and threatened to stab him with a knife if he went in. Kathurimo waited outside the
kitchen and saw the appellant pulling F by her hand.
4. F testified that the appellant dragged her into the inner room of the kitchen and he flung her to
the ground. The appellant lifted her clothes up to her waist, tore her underpants and proceeded
to rape her. While PW2, Geoffrey Kainga (Geoffrey), the hospital guard, was heading home after
the end of his shift he saw Kathurimo standing outside the Kitchen and upon inquiring Kathurimo
informed him that the appellant had taken F into the Kitchen. Geoffrey entered the kitchen and
went into the inner room where he found the appellant having sexual intercourse with F. The
appellant insulted Geoffrey and ordered him to leave the kitchen. Geoffrey left the Kitchen and
went home.
5. Thereafter, as Grace was heading to the Kitchen she met Kathurimo who informed her that F
was in the kitchen with the appellant. Upon entering the kitchen Grace found the appellant stirring
porridge while F was fidgeting and pulling on her clothes. After the appellant informed her that
the porridge was not ready she took F and they headed back to the ward. When the porridge was
ready F refused to go to the kitchen to get some and she finally told Grace that the appellant had
raped her. Grace examined her and discovered that her underpants had been torn. PW4, Elias
Muhidin (Elias), a clinical officer, examined F and found that her vulva was swollen and had a
whitish discharge. He also found that she had contracted Trichomonus virginalis. Elias also
examined the appellant but did not find any sexualy transmitted infection on him. Subsequently,
the appellant was arrested and charged with the offence of rape.
6. The appellant in his defence testified that on the material day that F and Kathurimo came to the
kitchen, he gave them porridge and they left; and that at time he was in the company of Geoffrey
and the hospital driver. Later in the evening he was directed not to work and he went home. He
was later arrested the following day and charged. He denied committing the offence and
contended that the charges were fabrications by his colleagues. He urged that the medical
evidence supported his innocence since he had no sexual transmitted infection like F.
7. Being convinced that the prosecution had proved its case, the trial court convicted the appellant
for the offence of rape and sentenced him to imprisonment for seven years. The appellant
appealed to the High Court against the conviction. The High Court in its judgment dated 27th
September 2011 confirmed the appellant’s conviction but enhanced his sentence from seven
years to ten years imprisonment. It is against that decision that the appellant has filed this appeal
based on the following grounds:The learned Judge erred in law in stating that she had re-evaluated the evidence of the
trial Magistrate in that had she done so, she would have come to the conclusion that the
plea had not been properly taken, and that the trial proceeded in a language which the
appellant did not understand.
The learned Judge erred in law in failing to hold that the trial Magistrate had heavily
shifted the burden of proof on the appellant throughout her judgment which action greatly
prejudiced the appellant in his defence.
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