Majumba Benjamini Vs the Republic, Criminal.Appeal No 454 of 2022

This case is about issue of medical praticiner who examine the PW1 should be the same person to testify and not one on behalf. Also provide issue of consent and penetration as ingridients of Rape. Please read the holding of the court and download for further perusal.

With respect, we agree with Mr. Mkonyi, first, that what PW3 did was to testify in the place of the medical practitioner who examined PW1 and secondly, that s. 34B of the Evidence Act was misapplied because, 

the witness was not called to tender the statement of the intended witness, that is; the medical practitioner who examined PW1 and prepared the medical report (exhibit PI). On that serious anomaly therefore, we hereby expunge that exhibit from the record as prayed by the learned State Attorney.

With regard to the 4th ground, the learned State Attorney argued that, whereas PW1 testified that the appellant did have carnal knowledge of her without her will and thus proved penetration and lack of consent, PW2 corroborated that evidence because, according to his evidence, he found the appellant in the act of having carnal knowledge of PW1. 

Citing the case of Hando Hau @ Hau Petro v. Republic, Criminal Appeal No. 453 of 2018 (unreported), Ms. Ombock submitted that, the two ingredients of the offence of rape were established by the evidence of PW1 who was the best witness as far as proof of the charge which involved a sexual offence is concerned. She prayed that the appeal be dismissed.

We have duly considered the submissions of the learned State Attorney on the fourth ground of appeal. We are of the settled mind that, as submitted by her, penetration, which is one of the ingredients of the offence, was proved because the evidence of PW1 as supported by that of PW2, whom the two courts below found to be credible, was cogent on the fact that, the appellant was found in the act of having carnal knowledge of PW1. With respect however, we find that the courts below misapprehended the evidence on the issue of consent.