JAPHETH MWAMBIRE MBITHA V. REPUBLIC

JUDGMENT OF THE COURT

[1] Japheth Mwambire Mbitha (appellant) has preferred this second appeal against a conviction for the offence of defilement contrary to Section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. As far as this appeal is concerned our jurisdiction is circumscribed under Section 361 (1) (a) of the Criminal Procedure Code to only matters of law. In Karani v. R [2010] 1 KLR 73 this Court stated as follows:

“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters o…