Samwel Kiberenge v Republic [2013] eKLR On the issue whether there was sufficient and sound evidence to establish the charge against the appellant, in considering whether the evidence was sufficient, the trial court in its judgment at page 4 stated that: “….I have warned myself against entering a conviction based on the uncorroborated evidence of a minor in the case of this nature and I find that for reasons aforegoing (sic) it would be safe to do so. Accordingly I find that the accused did commit the acts complained of and in result I convict him....” For her part, the High Court Judge in her judgment at page 5 stated that: “I am satisfied that the Appellant was convicted on very sound evidence which was not challenged by the defence. The conviction is therefore safe.” Notably, the trial court believed that the complainant, NNM, stated the truth by stating in the judgment at page 3 as follows: “The only eye witness to the incident in question is the complainant herself...As the court of trial I had the benefit of observing her demeanour and it was manifest that she was frightened and embarrassed. Secondly, I am unwilling to discount her evidence because it gels with what she narrated to her mother PW2 when she decided to open up. Thirdly, the findings by the medical officer as noted in the P3 form are consistent with the history PW1 gave of a sexual assault against her. At the trial I also read the demeanour of the complainant PW2 and PW3 and I found them to be both candid and forthright. Factoring in the complainant’s evidence that articulates with that of the doctors I have no reason to disbelieve the said witness.” The proviso to section 124 of the Evidence act (Cap 80, Laws of Kenya) as amended by Act No. 5 of 2003, stipulates: “Provided that where in a criminal case involving a sexual offence the only evidence is that of a child of tender years who is the alleged victim of the offence, the court shall receive the evidence of the child and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the child is telling the truth.” This Court is guided by the case of JACOB ODHIAMBO OMUMBO V R, [2008] e-KLR, where this Court held: “Though P’s evidence was that of a child of tender years, the court can convict on it by virtue of the proviso to S 124 of the Evidence Act.” (supra) In the instant appeal, we note that the trial magistrate observed that PW 1 was intelligent enough to appreciate the court proceedings and the need to be truthful. Further, the trial magistrate observed that PW 2 and PW 3 were both candid and forthright; and that PW1’s evidence was in consonance with that of the doctor. http://www.kenyalaw.org - Page 5/8