PATRICK MWABILI V. REPUBLIC

JUDGMENT OF THE COURT

The charge against the appellant in the trial court was that of the defilement of a girl under the age of 16 years contrary to the now repealed section 145 (1) of the Penal Code. In the alternative the appellant was charged with the offence of indecent assault contrary to section 144 (1) of the Penal Code.

The prosecution case was that on 29^th April, 2005 in Mombasa District of Coast Province, the appellant had carnal knowledge of B. C. R (PW 1) a girl under the age of 16 years. The background facts as narrated by prosecution witnesses were that at the material time, the complainant was sharing a bed with her nine year brother C.R PW 2. The incident is said to have happened at 11.00 p.m. when the complainant’s mother was upcountry and her father PC .R PW 4 had temporarily gone out of his house. While asleep PW 1 was awoken by the presence of the appellant who had already undressed her and gained penetration. Her elder brother PW 2 had also noticed the presence of a…