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D W M v. Republic

(2016) JELR 104967 (CA)

Court of Appeal  •  Criminal Appeal 12 of 2014  •  3 Feb 2016  •  Kenya

Philip Nyamu Waki, Roselyn Naliaka Nambuye, Patrick Omwenga Kiage



The appellant D W Mo was arraigned before the Senior Resident Magistrate's Court at Baricho for the main offence of defilement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006, in that on the 24th September, 2010 in Kirinyaga South District he penetrated the vagina of H.W, a girl aged 5 years, with his penis. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Act, in that on the same day and place he committed an act of indecency with H.W by rubbing his penis against her buttocks. The appellant denied both counts prompting the trial in which the prosecution called a total of five (5) witnesses while the appellant was the sole witness for the defence.

The brief facts are that H.W. who testified as PW1 is the biological daughter of R and the appellant. R left home on 22nd September, 2010 to attend a funeral of her brother-in-law leaving behind H.W under the care, control and custody of …

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