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(2019) JELR 98763 (CA)

Court of Appeal  •  Criminal Appeal 31 of 2016  •  24 May 2019  •  Kenya

Philip Nyamu Waki, Daniel Kiio Musinga, James Otieno Odek



1. The appellant, Mutie Musauli, was arraigned before the magistrate’s court charged with defilement contrary to Section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 9th April 2012, at about 5.00 pm, at [Particulars Withheld] Location in Mutomo District within Kitui County, he defiled KM a child aged 13 years by penetrating his penis into her vagina.

2. Upon evaluating the evidence, the trial magistrate convicted the appellant and sentenced him to a term of 20 years’ imprisonment. His first appeal to the High Court was dismissed. The learned judge upheld his conviction and sentence. Aggrieved, the appellant has lodged the instant second appeal to this Court.

3. In his amended memorandum of appeal, the appellant raises the following grounds:

“(i) The judge erred in concluding that the prosecution had proved its case beyond reasonable doubt.

(ii) The judge erred in not considering the appellant had a grudge with the PW2, the mother o…

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