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MUTALI NYAMWEA
V.
REPUBLIC

(2019) JELR 97617 (CA)

Court of Appeal 7 Oct 2019 Kenya
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Case Details

Suit Number:Criminal Appeal 17 of 2016
Judges:Philip Nyamu Waki, Martha Karambu Koome, Roselyn Naliaka Nambuye
Location:Kisumu
Other Citations:Mutali Nyamwea v. Republic [2019] eKLR

JUDGMENT OF THE COURT

The appellant was tried by the Senior Resident Magistrate, Mbita (Hon. S.O. Ongeri ) for the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act, 2006 (SOA). It was alleged that on 27th July, 2014 at Mbita District of Homa Bay County, he intentionally and unlawfully caused his penis to penetrate the genital organ, namely the vagina, of JA, a child aged 9 years. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of SOA based on the same facts, by intentionally and unlawfully touching the vagina of JA with his penis. After hearing eight (8) witnesses put forward by the prosecution and considering the defence of the appellant, the trial court was not satisfied that the main count of defilement had been proved since there was no credible evidence of penetration, and rejected it. It found the alternative count proved and convicted the appellant before sentencing him to serve ten (10) ye…

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