[2010] KEHC 1077 (KLR)
The court found that the absence of medical evidence (the P3 form and doctor's testimony) meant there was no corroboration of the complainant's account. Furthermore, the trial court failed to comply with section 124 of the Evidence Act by not recording whether it believed the complainant's evidence or giving reasons...
Source-derived case information.
- Citation
- [2010] KEHC 1077 (KLR)
- Parties
- Appellant: A K K; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 69 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held.
- Judges
- PM Mwilu
- Legal Topics
- Sexual Offences, Incest, Evidence Requirements, Medical Evidence, Appeals, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A K K
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction for incest could stand in the absence of medical evidence supporting the offence.
- 2 Whether the trial court complied with section 124 of the Evidence Act regarding the credibility of the complainant's evidence.
Ratio Decidendi
The court found that the absence of medical evidence (the P3 form and doctor's testimony) meant there was no corroboration of the complainant's account. Furthermore, the trial court failed to comply with section 124 of the Evidence Act by not recording whether it believed the complainant's evidence or giving reasons for such belief. These failures rendered the conviction unsafe. The appeal was allowed, the conviction quashed, and the sentence set aside, resulting in the appellant's immediate release unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant to be released unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CRIMINAL APPEAL NO. 69 OF 2009
A K K ................................………………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………… RESPONDENT
J U D G M E N T
A K K was convicted of incest by a male person contrary to section 20(1) of the Sexual Offences Act. He was imprisoned for a term of 10 years. He filed this appeal on the grounds that all the prosecution witnesses were from the same family and that there was no doctor’s evidence to support the conviction.
The state represented by state counsel Mr. Kabaka did not oppose the appeal on the ground that there was no medical proof that the offence had been committed.
At the hearing of the case the doctor who was said to have examined the complainant never attended court to produce the P3 form despite the case being adjourned severally to await his attendance at court. Without the P3 form evidence the trial court was left with no evidence on which it could properly hold that the appellant was guilty as charged see the case of RAJAB SAID ABDALLA V. R. MSA. Cr. Appeal No. 86 of 1997.
The trial court did not comply with the provisions of S. 124 of the Evidence Act and more particularly the proviso thereto in that it did not record whether or not it believed the evidence of the victim and further failed in not giving reasons for believing the complainant. In the absence of the doctor’s evidence and that failure to comply with section 124 there was no basis for the conviction. Consequently I allow this appeal quash the conviction and set the sentence aside. The appellant will be set at liberty forthwith unless otherwise lawfully held.
It is so ordered.
DATED SIGNED AND DELIVERED AT ELDORET THIS 30TH DAY OF SEPTEMBER, 2010.
P.M. MWILU
JUDGE
In the presence of;
Mr. Kabaka for the State
Appellant in person
Andrew Omwenga – C.C.
P.M. MWILU
JUDGE