JUDGEMENT OF THE COURT
This is a second appeal. By dint of Section 361(1) (a) of the Criminal Procedure Code we are mandated to deal only with issues of law but not matters of fact which the two courts have made findings upon unless is be shown that there has been a misdirection on the treatment of facts or the findings of fact are not based on evidence. This statement of the law has been made, stated and restated in the many decisions that have come fourth from this court such as Thiongo v. Republic [2004] lEA 333 and Aggrey Ochieng Aguch and Anor v. Republic (Kisumu) Criminal Appeal No. 367 of 2008 (ur).
The charge facing the appellant, J O A, before the Chief Magistrate, Kisumu, was that of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act No.3 of 2006. It was alleged that on 18th October, 2007 at [particulars withhed] in Kisumu the appellant caused penetration with his sexual organ to a child "MAA" then aged 10 years. It was alleged, in the a…