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Alfayo Gombe Okello v. Republic

(2010) JELR 105688 (CA)

Court of Appeal  •  Criminal Appeal 203 of 2009  •  30 Apr 2010  •  Kenya

Johnson Evan Gicheru, Samuel Elikana Ondari Bosire, Philip Nyamu Waki



Alfayo Gombe Okello (the appellant) was convicted by Nyando Senior Resident Magistrate, LN Mbugua, for the offence of defilement contrary to section 8 (3) of the Sexual Offences Act, No. 3 of 2006 (the Act). It had been alleged in the charge sheet that on 19th day of August, 2007 at Tura sub-location in Nyando district of Nyanza Province, the appellant had carnal knowledge of S A, a girl under the age of sixteen years. There was also an alternative count of indecent assault contrary to section 11 (1) of the Act. It will be apparent at once that the reference in the particulars of the main count to “a girl under the age of sixteen years” is a hangover from the provisions of section 145 (1) of the Penal Code which was repealed by the Act on 21st July, 2006. Under section 8 (3) of the Act, there is no reference to “a girl under the age of sixteen years.” We shall revert to this aspect of the matter later in this judgment. Upon his conviction, the appellant was sente…

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