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Juma Said Wanje v. Republic

(2020) JELR 100424 (CA)

Court of Appeal  •  Criminal Appeal 46 of 2018  •  22 May 2020  •  Kenya

Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu



1. The appellant was convicted of defilement of a girl child, EM, aged 3 years. He was sentenced by the trial court to imprisonment for life.

2. Being aggrieved by the said conviction and sentence, the appellant preferred an appeal to the High Court of Kenya at Malindi.

3. During the hearing before the Chief Magistrate’s Court at Malindi, the prosecutor applied for the mother to give evidence on behalf of the child as she could not talk. The trial court invoked section 31 of the Sexual Offences Act and permitted the child’s mother to testify on behalf of the child.

4. The child’s mother, PW1, told the trial court that on 22nd October 2013 at about 1 p.m. a woman by the name RK, PW3, told her that she had seen a man holding a child; and that he had lifted up the child’s skirt while the child sat on him, facing him as she cried. The man was inside a house that was under construction. The scene was not far from the place where both PW1 and PW3 were working.

5. PW1 rushed…

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