Crimes Sex Offences

Peculiar circumstances under which evidence of rape is admissible in a court of law

The circumstances under which evidence of a rape victim may be admissible in a court of law vary from time to time. However, in Criminal Appeal No. 95 of 2017 certain deliberations were made.

As with regards to testimony from a rape victim

The position of most Courts of law with regards to testimony from a victim is based of Section 124 of the Evidence Act. 

The Section states that the testimony of an alleged victim of a criminal conduct is admissible and able to implicate an accused person if it is corroborated with other material evidence.  However, for a scenario involving a sexual offence, the judge will overlook the demeanor and will only admit the testimony of the victim as evidence regardless if material evidence is not adduced provided that the testimony is consistent both in examination in chief and in cross examination as with regards to the surrounding circumstances. The court will receive this evidence and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.

As with regards to document production

At times, although the Rules of evidence dictate a maker of a document to produce it in court, the Kenyan courts are still inclined to allow a person other than the one who prepared a report such as a P3 medical form to produce it in court provided that the presumption of authenticity is met. However, if the authenticity test is not met then the documents may not be admissible.

Section 77 of the Evidence Act provides that in Criminal proceedings any document purporting to be a report made by a professional may be used and is admissible as evidence provided that the signature to any such document is genuine and was made by a professional. The court may Suo Moto (on its own motion) or upon request by the accused person, call for the maker of such a document to appear in court for cross-examination on the form and content of the report. This was a position also held in Joshua Otieno Oguga v Republic  where the court held that : “if an accused or an appellant wants a medical report to be produced by a doctor, then they have the right to apply to the court to summon the doctor who prepared the report, otherwise there is nothing wrong in law in the P3 form being produced by a Police Constable.”



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