JUDGMENT OF THE COURT
This is a second appeal arising from the Judgment of the High Court of Kenya at Nairobi in Criminal Appeal No. 405 of 2010 (Mbogholi, J) dated 2nd May, 2013.
The appellant was arraigned before the Senior Resident Magistrate’s court at Gatundu with the offence of defilement of a girl contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act 2006 (SOA). The particulars were that on the 19th day of July, 2009 in the Thika District in Central Province, he intentionally and unlawfully committed an act which caused penetration to a minor, a girl aged (5) years. The appellant also faced an alternative charge of indecent act with a female contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on the same date and place the appellant committed an indecent act with a minor by touching her genital organs, a girl aged five (5) years. The appellant denied both offences prompting a trial in which the prosecution tendered evidence thro…