JOHN MBURU V REPUBLIC[2012]eKLR witness. He claimed in his defence that he did not commit the act and that he was framed with the case. He stated that on a day he could not remember, the complainant woke up and claimed that he had been sodomised and pointed an accusing finger at him. He was beaten at the office and complainant was taken to hospital. Otherwise he did not commit the offence since no one saw him do it. The learned magistrate having carefully considered the evidence on record both for the prosecution and defence, found the case for the prosecution proved, convicted the appellant and sentenced him to 15 years imprisonment. The conviction and sentence aforesaid triggered this appeal. The appeal is hinged on the grounds that the prosecution case was full of inconsistencies, hearsay, there was no prove medically that the substance observed on the complainant’s short trouser was spermatozoa nor was there evidence of penile penetration of the complainant; that the magistrate failed to consider that there was plenty of light in the ward with 130 inmates who did not notice the incident. When the appeal came before me for hearing on 12th July, 2012, the appellant orally submitted that he was not given statements by prosecution witnesses before the trial commenced, the court did not record correctly the proceedings, the evidence regarding holes on the shorts was contradictory. It was impossible to commit the offence in the room with over 120 inmates, the complainant never screamed for help, none of the other prisoners were called to testify and finally, PW2 and complainant had a grudge against me. In response, Mr. Mukofu, learned State Counsel submitted that the appellant was positively identified in the act by the complainant, from the medical evidence, it was clear that the complainant had been sodomised, there was no evidence of a frame up nor did the appellant raise the issue in crossexamination of the complainant and PW2. For all the foregoing reasons, the State urged for the dismissal of the appeal. This being a first appeal, it is a requirement of law that I subject the evidence tendered before the trial court to a fresh and exhaustive examination and evaluation so that I can reach my own conclusion as to whether the findings and conclusions of the trial court are sustainable. From the evidence on record, it is common ground that the complainant was sodomised. This comes out clearly from the medical evidence tendered by PW1, the clinical officer who examined the complainant the following day after the incident. He came to the conclusion that there was evidence of forceful penetration of the anus causing blunt trauma on the anal mucosa. This evidence was not seriously challenged by the appellant. The question then is who caused that injury. To the complainant, it was the appellant. However, the appellant proclaims innocence. In so far as he is concerned the case was a frame up. I have no doubt at all in my mind that the appellant committed the act complained of given the evidence of identification on record. The appellant has conceded that he shared the prison cell with the complainant. The appellant too has conceded that there was plenty of light in the cells. Indeed in ground 4 in his petition of appeal, he states categorically that “… the learned trial magistrate misdirected himself against both the law and facts when he failed to consider that there was plenty of light in the ward with one hundred and thirty inmates…” So the question as to whether the cell was lit or not is a non-issue. The appellant and complainant knew each other. Indeed on the night in question, the appellant and complainant were sleeping next to each other. This was the testimony of the complainant. When the appellant inserted his penis in his anus, the complainant in a bid to resist parted the appellant, but he warned him to keep quite. This http://www.kenyalaw.org - Page 2/3