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Peter Odhiambo Onyuongo v. Republic

(2013) JELR 96611 (CA)

Court of Appeal  •  Criminal Appeal 216 of 2008  •  26 Jul 2013  •  Kenya

Coram
David Kenani Maraga, John Wycliffe Mwera, Stephen Gatembu Kairu

Judgement

JUDGMENT OF THE COURT

The Appellant’s memorandum of appeal has three grounds: that the learned High Court Judge erred in law in failing to realize that the charge against him was defective; that his conviction was based on contradicted evidence; and that his defence was not considered.

When the Appellant appeared before us on 30th May 2013, he said he would rely entirely on his written submissions which he had filed.

On the first ground the Appellant submitted that the charge of defilement was defective for two reasons. One that the particulars of the charge did not allege that the sexual act was “forceful or unlawful”. Secondly, the complainant, as the doctor, PW3, testified was at the material time aged 18 years old and she consented to the sexual act. The Appellant blamed the two courts below for failure to note that crucial point.

On ground two, the Appellant submitted that when the charge of defilement was read to him, he admitted that he had indeed had sexual intercourse with the co…

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