PATRICK HAMISI v REPUBLIC[2012] eKLR PC Evans Kimaiyo Kimunge (PW6) arrested the appellant on 28/5/09 after he was pointed out by PW2. When asked to enter his defence the appellant in his unsworn defence denied knowing anything about the offence and that the charges were a frame up. The state opposed that appeal for reasons that PW1 knew the appellant well as a neighbour; the incident was in broad daylight; that the matron examined PW1 and later the Clinical Officer confirmed that PW1 had been defiled; that the appellant never raised the issue of being framed when the prosecution witnesses testified. On the question of whether or not the appellant was properly identified, PW1 testified that the appellant is known as Patrick and was their neighbour. The appellant never challenged PW1’s testimony that he was a neighbour and that she knew him well. Infact he never challenged that fact when PW1’s mother, PW2 testified. In his defence, he admitted that he had been staying in Gilgil where PW1 resided too. The identification of the appellant by PW1 was not in issue. There was therefore no need to give the appellant’s description to the police upon the first report. The complainant conceded that she never informed anybody about her ordeal, either her sister who was at home or her parents because of fear of the appellant who had threatened to beat her. It was not until she became sick while in school that she disclosed it to her teacher. As per the P3 form, PW1 was found to have pimples like eruptions on her labia, hymen was broken and membranes were torn, she had a vaginal discharge, pus discharge and she was treated for sexually transmitted infection (STI). Although PW1 had not disclosed what had happened till about a month later on 27/5/09, this court is satisfied that it is as a result of the threats and fear of the appellant that the complainant took so long to report. There is, overwhelming evidence that she was defiled and the court is satisfied that though the incident was discovered a month later, the appellant is the one whom the complainant identified as the person who abused her. The appellant claims that not all relevant witnesses who should have been called were not called by the prosecution. It was his submission that his brother with whom he lived and PW1’s father should have been called as witnesses but he did not point to any valuable evidence they would have added to the case. Section 143 of the Evidence Act provides that there is no fixed number of witnesses required to prove a fact. It reads as follows:“S.143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” The appellant has not pointed to any law that requires a certain number of witnesses to be called to prove the prosecution case. Further to the above, the requirement of corroboration of the evidence of young witnesses in sexual offences was done away with, with the amendment to the law. It is enough that the court believes the evidence of the witnesses who are called and gives reason for it. See Section 124 of the Evidence Act. The appellant also complains that the proceedings before the trial court were in a language he did not understand. On a perusal of the court file, on 2/6/09, when the plea was read to the appellant, it is indicated that it was read to him in the Kiswahili language and he denied the offence. PW1 testified in the Kiswahili language and so did PW3, PW5 while PW4 and PW6 testified in English. It is not indicated what language PW2 used. The appellant cross examined all the witnesses and gave an unsworn defence. At no stage did he complain that he did not understand the language or that he could not follow http://www.kenyalaw.org - Page 3/5