JUDGMENT OF THE COURT
This is a second appeal. The appellant, Elisha Oloo Oyugi, was charged in the subordinate court with the offence of defilement contrary to section 8 (3) of the Sexual Offences Act No.3 of 2006. The particulars of the offence were:
“ELISHA OLOO OYUGI:- On the 25th Day of November 2008 at [particulars withheld ]Trading Center in Nyando District within Nyanza Province, did an act, which caused penetration to S A O, A girl aged 12 years.”
The appellant also faced an alternative count of committing an Indecent Act contrary to section 11 (11) of the Sexual Offences Act particulars whereof were as follows:-
“ELISHA OLOO OYUGI: On the 25th day of November, 2008 at [particulars withheld] Township in Nyando District within Nyanza Province, unlawfully made an indecent act to S A O By touching her private parts.”
The appellant pleaded not guilty but after full hearing the learned Resident Magistrate (RM Oranda) found him guilty as charged in the principal count, convicted him and…