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(2016) JELR 104951 (CA)

Court of Appeal  •  Criminal Appeal 5 of 2012  •  5 Feb 2016  •  Kenya

David Kenani Maraga, Daniel Kiio Musinga, Stephen Gatembu Kairu



1. Daniel Mwaura, the appellant, was convicted of defilement of EWK, a child aged 11 years. The trial court sentenced him to 15 years’ imprisonment. Being dissatisfied with the said conviction and sentence, the appellant preferred an appeal to the High Court. The High Court dismissed the appeal against conviction. The first appellate court found that the sentence imposed by the trial court was illegal as it was contrary to section 8 (2) of the Sexual Offences Act No. 3 of 2006. It set aside the sentence and substituted it with life imprisonment.

2. The appellant moved to this Court on a second appeal. In such appeal, we are under a legal duty to pay homage to the concurrent findings of fact by the two courts below, and we can only interfere if we are satisfied that there was no evidence at all upon which the findings were based, or if the evidence which gave rise to the findings was of such a nature that no reasonable tribunal could be expected to base any decision…

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