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(2020) JELR 93921 (CA)

Court of Appeal  •  Criminal Appeal 45 of 2018  •  24 Apr 2020  •  Kenya

Daniel Kiio Musinga, Agnes Kalekye Murgor, Stephen Gatembu Kairu



1. In this second appeal, the appellant, RBT, has challenged his conviction and sentence for the offence of defilement. He was charged, tried and found guilty by the Magistrates’ court at Kilifi for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. He was sentenced to imprisonment for a jail term of 15 years. His first appeal against the conviction and sentence was dismissed by the High Court at Malindi (Njoki Mwangi, J.) in a judgment delivered on 12th March 2018 after which he lodged this appeal.

2. The particulars of the offence were that on 28th March 2014 in Matsangoni location within Kilifi County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of MZL, a child aged 17 years.

3. Based on the prosecution case before the trial court, the facts are that in the early morning of 28th March 2014, at about 6.00 a.m., the complainant, MZL (PW1), was at home preparing to go to sc…

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