David Ndumba v Republic [2013] eKLR
The learned Judge further erred in law in holding that upon her alleged evaluation of the
prosecution’s evidence in totality, the contradictions of the prosecution witnesses’
evidence did not prejudice the appellant.
The learned Judge further erred in law in failing to fault the trial magistrate’s treatment
and/or evaluation of the medical evidence and the extraneous findings of the trial
magistrate in explaining away the discrepancies.
The learned Judge further erred in law in holding that both PW1 and PW5 were competent
witnesses for the prosecution and further erred in holding that their evidence had been
sufficiently corroborated by other evidence.
The learned Judge erred in law in not finding that failure by the trial court to decide or
comment on the second count of the charge was unprocedural and fatal to the
prosecution’s case.
The learned Judge further erred in law by failing to notice that the case against the
appellant had not been proved to the required standard.
The learned Judge further erred in law and in fact in failing to evaluate and/or consider the
appellant’s defence.
8. Mr. B.G. Kariuki, learned counsel for the appellant, submitted that the learned Judge (Kasango,
J.) did not properly evaluate the evidence that was adduced in the trial court. In that firstly, the
language which the appellant understood was not stated; and secondly, that PW1, F, and PW5
Kathurimo were mental patients and therefore their evidence ought to have been treated with
care. Mr. Kariuki submitted that trial court did not conduct a voir dire to support her finding that
F’s evidence was fairly clear. Thirdly, that the medical evidence adduced by the prosecution
clearly exonerated him because unlike F he had no sexual transmitted infection. Fifthly, that his
defence that the charge against him was fabricated by his colleagues was not considered by the
lower courts.
9. Mr. Kariuki submitted that the appeal before the High Court was on conviction of the appellant
and not on sentence. Therefore, the High Court erred in enhancing the sentence.
10. Mr. J. Kaigai, Assistant Deputy Public Prosecutor, in opposing the appeal submitted that the
prosecution’s case was proved to the required standard. He argued that the appellant was found
red handed by PW2, Geoffrey, having sexual intercourse with F; and that PW1, F, and PW5,
Kathurimo, were lucid at the time of the incident and during the trial. Mr. Kaigai urged that there
are concurrent findings of fact by the two lower courts hence this Court ought not to interfere with
the said findings. He maintained that PW2, Geoffrey, was a competent witness.
11. Mr. Kaigai submitted that any error in the charge sheet is curable under Section 382 of the
Criminal Procedure Code. He urged that the learned Judge was correct in enhancing the
appellant’s sentence since the one issued by the trial court was illegal under the Sexual
Offences Act. He maintained that the sentence issued by the High Court was the minimum
sentence for the offence of rape and therefore the sentence was not excessive. He further
submitted that the two lower courts considered the appellant’s defence.
12. This being a second appeal and by dint of Section 361(1) of the Criminal Procedure
Code, Chapter 75, laws of Kenya, this Court's jurisdiction is limited to matters of law only. In
Chemagong vs. Republic (1984) KLR 213 at page 219 this Court held,
“A second appeal must be confined to points of law and this Court will not interfere with
http://www.kenyalaw.org - Page 3/7