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Eliud Waweru Wambui v. Republic

(2019) JELR 102486 (CA)

Court of Appeal  •  Criminal Appeal 102 of 2016  •  22 Mar 2019  •  Kenya

Roselyn Naliaka Nambuye, Daniel Kiio Musinga, Patrick Omwenga Kiage



This appeal epitomizes for the umpteenth time the unfair consequences that are inherent in an critical enforcement of the Sexual Offences Act, No. 3 of 2006 (the Act) and the unquestioning imposition of some of its penal provisions which could easily lead to a statute-backed purveyance of harm, prejudice and injustice, quite apart from the noble intentions of the legislation. The case poses one more time whether it is proper for courts to enforce with mindless zeal that which offends all notions of rationality and proportionality.

The appellant, Eliud Waweru Wambui, in this second appeal protests, essentially, that he is like Shakespeare’s King Lear, a man more sinned against than sinning. He was arrested nearly a decade ago, and arraigned before the Chief Magistrate’s Court at Thika on 1st December, 2010 on a charge of defilement, contrary to section 8(1)(4) of the Act. The particulars of the charge were that;

“On the month of May 2009 at Makuyu Township in Murang?…

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