Rex v Mawingu (Cr. App. No. 26/1936.) [1936] EACA 39 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); SIR SIDNEY ABRAHAMS, C. J. (Tanganyika) and WEBB, J. (Kenya).

## REX, Respondent (Original Prosecutor)

RAMAZANI BIN MAWINGU Appellant (Original Accused). Cr. App. No. 26/1936.

complainant—Unsworn $Evidence \rightarrow Rape\sim Corroboration$ $\quad\text{ of }\quad$ testimony of children.

The facts appear from the judgment.

Held (10-2-36). - That, as a witness whose evidence requires corroboration cannot corroborate, the evidence of the complainant could<br>not be corroborated by the unsworn testimony of two children.

R. v. Solu wa Totu (1934 E. A. C. A. 183) and R. v. Southern $(22 \text{ Cr. App. R. 6})$ followed.

Appellant absent, 'unrepresented.

Dennison, Crown Counsel, for the respondent.

JUDGMENT (delivered by SIR SIDNEY AHRAHAMS, C. J.).-In this case the learned trial judge has treated the evidence of two boys, one aged ten and the other aged six, as corroborative of the complainant. The practice of this Court is to require corroboration in sexual offences, but it laid down in Solu wa Totu v. R. (1934 E. A. C. A. 183) that a witness who himself requires corroboration cannot corroborate, and as these two boys were of too tender years to be sworn the rule of common sense and fairness as expressed by TALBOT J. in $R$ . v Southern (22 Cr. App. R. 6) is a rule which in our opinion, Courts in these Territories should follow, and corroboration of such evidence is essential.

The evidence of these two juvenile witnesses does not appear to us to have been corroborated either by oral or circumstantial evidence, nor is there any independent evidence of either description corroborative of the complainant. The fact that she was crying and made a complaint is indicative of consistency only and does not amount to corroboration. The presence of semen on her person is indicative of sexual intercourse and does not rebut the defence of consent which the appellant set up.

We therefore find that there was insufficient evidence upon which a conviction for rape could be properly had, and as the complainant is over twelve years of age a conviction under Sec. 128, Penal Code cannot be substituted.

We quash the conviction and acquit the appellant.