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Ndioo Kithuku v. Republic

(2017) JELR 98501 (CA)

Court of Appeal  •  Criminal Appeal 77 of 2016  •  15 Dec 2017  •  Kenya

Coram
Daniel Kiio Musinga, William Ouko, Stephen Gatembu Kairu

Judgement

JUDGMENT OF THE COURT

1. The appellant was on 27th July 2012 convicted by the Senior Resident Magistrate's Court at Mutomo for the offences of defilement and indecent assault contrary to Section 8(1)(3) and Section 11(1) respectively of the Sexual Offences Act and sentenced to a prison term of 20 years. The trial court did not however indicate to which of the two offences, the sentence related. On appeal to the High Court, the conviction with respect to the offence of indecent assault was set aside while the conviction for the offence of defilement as well as the sentence for 20 years was upheld. This is a second appeal.

2. The background is that, in April 2012, the complainant, MM, (PW1) then aged 13 years, was a student in Standard 5 at [particulars withheld] Primary School. On 23rd April 2012 her father, (PW3), noticed that the complainant was not going to school and enquired from her why that was so. The complainant informed him that she was pregnant. PW3 then asked his wife, the co…

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