Bakililei v. R. Crim. App. 872-M-70; 21/6/71; El-Kindy Ag. J.

Bakililei v. R. Crim. App. 872-M-70; 21/6/71; El-Kindy Ag.  J.

            The appellant was convicted of defilement of a girl under twelve years of age c/s 136 (1) of the Penal Code. The case for the prosecution was that the complainants aged 9 years together with her friend also aged 9 years were on the material day going to a nearby river to draw water. On their way back they met the appellant who grabbed the complainant to the bush where he savagely defiled the complainant. After the alleged sexual intercourse, the appellant fled leaving behind a basket which was later found in the complainant’s house. The learned trial magistrate admitted the evidence of the complainant on oath after conducting a viva voce and being satisfied that they possessed sufficient intelligence and understood the nature of the oath. The complainant’s friend gave a clear description of the clothes the appellant was wearing during that evening and the basket he carried. The main question was whether the learned trial magistrate had directed himself properly on the evidence and the law.

                        Held: (1) “……. Although he (the magistrate) accepted the evidence of the two girls, he still, as a matter of practice, needed corroboration. As it was held in the case of Oloo s/o Ghai v. R. (1960) E. A.  p. 86 and followed in the case of Michael s/o Sulusi and Anor. v. R. Cr. App. 254 & 255 of 1970 (unreported) corroboration, as a matter of law, is not needed where a child gives evidence on oath, but as a matter of practice such corroboration is required unless the trial court properly warns itself of the danger of convicting a person on such evidence. In this case there was the sworn evidence of Microt and Estania. The two girls also described, inter alia, the basket the appellant carried, and this basket was subsequently found in possession of the appellant. The learned magistrate accepted the evidence of the two girls, and found corroboration of their evidence in the finding of the basket which fitted with the descriptions given by the prosecution witnesses. I cannot, therefore, say that the learned magistrate was not entitled to accept the evidence of the prosecution witnesses, as he did.” (2) Appeal dismissed.