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Charles Enose Makokha v. Republic

(2016) JELR 104081 (CA)

Court of Appeal  •  Criminal Appeal 79 of 2014  •  27 May 2016  •  Kenya

David Kenani Maraga, Daniel Kiio Musinga, Stephen Gatembu Kairu



1. On 28th June 2012, the Magistrate’s Court at Homa Bay convicted the appellant, Charles Enose Makokha,for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. He was subsequently sentenced to imprisonment for a term of 15 years. That court acquitted him on the offences of indecent act and of attempted rape with which he had also been charged.

2. He challenged the conviction before the High Court at Kisumu. That court delivered its judgment on 20th January 2014, and dismissed that appeal, having been satisfied that the charge for the offence of defilement had been proved.

3. The appellant remains dissatisfied and has lodged this second appeal.

4. During the hearing of the appeal before us, the appellant, who was un-represented, argued that the trial court and the High Court failed to appreciate that the offence was not proved; that the necessary ingredients of that offence, namely penetration, and the age of the vi…

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