CHARLES MACHARIA MUTHONI v REPUBIC [2012] eKLR ii) the learned magistrate introduced her own theories in the judgment; iii) the charges were duplex; iv) the burden of proof was shifted to him; v) his constitutional rights under Section 72(3) of the former Constitution was violated; vi) the charges were at variance with the evidence and Section 214 of the Criminal Procedure Code was not complied with. Learned counsel for the respondent opposed the appeal arguing that the appellant was positively identified by the complainant who immediately after the sexual assault gave the name of the appellant to her elder sister, P.W.2 and to the police. That there was electricity light at the trading centre, where the complainant had seen the appellant in a group of other young men. Being the first appellate court, the evidence on record must be subjected to fresh analysis for this court to arrive at an independent decision, bearing in mind that the witnesses testified not before it but before the trial court. In brief, the evidence on record may be stated as follows: The complainant who gave her age as 14 years, in the company of another young girl who did not testify, were sent for paraffin by the former’s elder sister (P.W.2) as there was power black-out on the evening in question namely on the 19th August, 2009 at about 9p.m. The two girls found the shop for paraffin already closed. They decided to go to the market to buy candles. They noticed five people, including the appellant seated at the stalls. They followed the girls to the shop where they brought the candles. http://www.kenyalaw.org - Page 2/5