Wilson Mugambi Njeru v Republic [2013] eKLR that the Appellant was not placed on medical checkup to prove his involvement in the said act. 6. That the learned trial Magistrate did not consider the Appellant’s defence which was plain truth and that he has no knowledge of court matters. The facts of the case are that PW1 then aged fifteen (15) years left home for his grandmother’s home on 10/09/2009 evening. The reason was that he had feared being beaten by his father for failing to account for shs.100/= given to him by his father to pay for tuition fee. On the way he met the Appellant who told him it was not safe to walk at night. He offered him accommodation at his house. He had known the Appellant before as a conductor. While asleep the Appellant woke him up at 1.00am and ordered him to remove his trouser or else he would kill him. He was holding a knife and the boy feared. He removed his trouser and the Appellant had sex with him through the anus. He felt a lot of pain. The next morning they boarded a motor vehicle with the Appellant and he was dropped at a tea collection Centre. When his sister passed on her way to school he asked her how the father was and he was told he was okay. He went to Manyatta market where he stayed. PW2 came there and he told him what the Appellant had done to him. PW2 took him home and reported the incident to his mother. PW1 repeated the same report to his mother. The boy’s father was informed and that’s how the Appellant was arrested. PW1 was treated at Embu Provincial General Hospital. Dr. Julia M. Ndawa (PW4) produced a P3 form (EXB1) in respect of PW1. The report confirmed that the boy had been sexually assaulted through the anus. In his unsworn defence the Appellant denied the charge. He stated that on 16/8/2009 PW3 and her husband had been passengers in his taxi when they claimed he had taken their bag and he would pay. So that’s why they had framed him. When the appeal came for hearing the Appellant presented the Court with written submissions in which he had expounded on his grounds of appeal and even raised the issue of a defective charge sheet. The learned State Counsel M/s Ing’ahizu opposed the appeal saying the evidence was overwhelming. This is a first appeal and this Court has the duty to reconsider and reevaluate the evidence on record and arrive at its own conclusion. The Court of Appeal in the case of MWANGI –V- REPUBLIC [2004]2 KLR 28 held thus; 1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate Court’s own decision on the evidence. 2. The first appellate Court must itself weigh the conflicting evidence and draw its own conclusions. 3. It is not the function of the first appellate Court merely to scrutinize the evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court had the advantage of hearing and seeing the witnesses. Being guided by the above authority I have reconsidered the evidence on record. I have also considered submissions by the Appellant and the learned State Counsel plus the grounds of appeal. On the 1st ground of appeal the Appellant states that he was held in prison for over 24 hours. He has not indicated what day of the week the 11th September 2009 was. The provisions of the 2010 Constitution do not however apply to those dates he has cited. In any event if he is very certain that those quoted dates did http://www.kenyalaw.org - Page 2/4