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(2015) JELR 102821 (CA)

Court of Appeal  •  Criminal Appeal 116 of 2013  •  8 May 2015  •  Kenya

Wanjiru Karanja, William Ouko, Stephen Gatembu Kairu



On 19th February 2009 the appellant David Masese Mogaka was convicted by the Magistrates’ court at Makadara, Nairobi for the offence of rape under section 3(1) of the Sexual Offences Act, Act No. 3 of 2006 and sentenced to 15 years imprisonment. His first appeal against the conviction and sentence was rejected by the High Court (A. Mbogholi Msagha, J) in a judgment delivered on 19th December 2011. Dissatisfied with the decisions the two courts, he has appealed to this Court.

The Facts

On 8th July 2007 at about 6.00 am, S W M (PW 1)(we shall refer to her as S) was on her way home from a birthday party in Kayole, Nairobi. She was crossing a road to take a matatu when the appellant, accompanied by two other men, held her at gunpoint and escorted her to a house. Inside the house, the appellant placed her on a carpet. He raped her until midday. Pretending to be going to the toilet, S managed to escape from the house.

S reported the incident to Police Constable Ruth Maithy…

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