JUDGMENT OF THE COURT
This is a second appeal arising from the Judgment of the High Court of Kenya at Garissa in Criminal Appeal No. 86 of 2012 (George Dulu, J) dated 6th November, 2014.
The facts leading to the appeal are that, the appellant was arraigned before the Senior Resident Magistrate’s court at Mwingi charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offence Act (SOA) No. 3 of 2006. The particulars were that, on 27th July, 2012 at Nduluku village, Itendeo sub-location, Kyathani location in Mwingi Central District within Kitui County, he did an act which caused the penetration of his male genital organ namely: penis into the female genital organ, namely vagina of NM, a girl aged 5 years old. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the same Act, particulars being that, the appellant on the same date and place committed an indecent act which caused contact of…