JUDGMENT
This is a second appeal by the appellant, John Mwinzi, who was convicted on the main charge of defilement contrary to Section 8(1) as read with sub-section 4 of the Sexual Offences Act. Particulars were that on the 26th day of August, 2010 at a place in the then Eastern Province he committed an act which caused penetration of his penis into the vagina of RM, a child aged 10 years. He was convicted after the trial where the prosecution called 7 witnesses and sentenced to imprisonment for life. His appeal to the High Court of Kenya at Garissa was dismissed by Mutuku, J. in a Judgment delivered on 28th November, 2013.
We are mandated by Section 361(1) (a) of the Criminal Procedure Code to consider only issues of law but not matters of fact which have been tried and retried by the trial court and the appellate court on first appeal – See Peter Ngure Mwangi v Republic [2014] eKLR where it was held in respect of that mandate:
“This being a second appeal, our mandate is as set out in S…