Justices Engela Kileo, Katherine Oriyo
and Ibrahim Juma found that there was overwhelming evidence against
Ramadhan, the appellant, which was adduced at the trial and as a second
appellate court they have seen no justification for interference with
the two lower court’s findings as to facts.
“In the light of the above
consideration, we have come to the settled view that the appeal by Issa
Ramadhan is without substance and for this reason we must, as hereby do,
dismiss it,” the justices declared.
During hearing of the appeal, the
appellant had told the court that the charge against him was not proven
because the victim of the crime did not testify in court and that no
police officer was called to give evidence.
In their judgment, however, the justices
ruled that the complaint by the appellant as regard to the failure of
the victim of rape to testify had no foundation because it was not the
first time that a court has arrived at a conviction without the
testimony of the victim of the crime.
“There is also a litany of cases where
testimonies of child victims of tender years have been expunged for
non-compliance with the voire dire test and yet the courts arrived at a
conviction independent of that evidence,” they observed.
As for the ground that conviction was
wrongly entered because no police officer was called to testify, they
were of the settled view that in the circumstances of the case the fact
that no police officer testified in court did not water down the case
for the prosecution. Records show that the victim of the crime (name
withheld) who did not testify at the trial was a girl of unsound mind,
as testified by her father.
On the material date, witnesses who had
been called to testify participated in search of the victim of rape
after an alarm was raised from the house of her father. In the course of
the search, they heard a child crying and as they approached the place
where they heard the cry coming from, they found the appellant in the
act of raping the girl.
The appellant was apprehended and taken
to the Village Executive Officer and eventually to court for trial.
After the prosecution had closed its case, the appellant gave his
defence based on general denial, claiming that he was arrested, beaten
up and taken to the police and eventually to court for the charge of
rape which he had not committed.
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