CHARLES MACHARIA MUTHONI v REPUBIC [2012] eKLR As they begun their journey back home, the men began to follow them. They ran as the five pursued them. The complainant recalled that when the men caught up with them, the appellant called her, pushed her to the ground, undressed her while covering her mouth to prevent her from screaming; that the appellant raped her as the other four men held her hands and legs. Her companion, the other young girls meanwhile was throwing stones at them. The police happened to pass by as a result which the men ran away. The complainant ran towards her home screaming. Her sister, P.W.2 and her husband heard her screams and shortly the complainant arrived and explained that she had been defiled by the appellant. P.W.2 and her husband took the complainant to a nearby health centre, from where they were referred to Ol Kalou District Hospital. An Administration Police (AP) Constable, P.W.3 George Mwangi confirmed hearing screams from a small girl at about 9p.m. with a colleague, Sgt. Njeru, they went to find out what was happening. They met the complainant who explained to them that she had been defiled by the appellant and four men held her. On 24th August, 2009, some five days after the alleged defilement the complainant reported to APC George Mwangi (P.W.3) that she had seen the appellant, who was, as a result of the report arrested and taken to Kipipiri Police Station where the charges were preferred. Earlier on 20th August, 2009, the complainant was examined by P.W.6 Peter Nginyo, a clinical officer at Ol Kalou District Hospital who observed that although her external genitalia was normal and no spermatozoa noticed, laboratory results of a swab indicated red blood cells and upon physical examination, the clinical officer also found that the complainant’s hymen had been broken but it was noted to be old. According to Exhibit 2 (P.3), the appellant was suffering from herpes genitalia on the penile shaft. In his unsworn defence, the appellant argued that this was a case of extortion; that the complainant had a tendency of extorting money from men and that when he refused to pay her money, she caused the charges to be brought against him. In her judgment, the learned magistrate found that the evidence summarized above proved beyond any reasonable doubt. No doubt the alleged offence took place at night (9p.m.). It is also common ground that the appellant and the complainant were not strangers to each other. The broad question in the trial and in this appeal is whether the complainant was gang defiled. The complainant repeatedly maintained that she was defiled. She said: http://www.kenyalaw.org - Page 3/5