JUDGMENT OF THE COURT
The appellant, WOO, was arraigned before the Principal Magistrate’s Court and charged with defilement contrary to section 8(1) as read together section 8(2) of the Sexual Offences Act. The particulars of the offence were that on the 10th January 2011 at [particulars withheld] Village, Hono sub-location in Siaya District within the former Nyanza Province, the appellant intentionally caused his penis to penetrate the vagina of S.A, a child aged 9 years.
The prosecution preferred an alternative charge of an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The added particulars were that the appellant intentionally touched the breasts and vagina of S.A, a child aged 9 years.
The brief facts of the case are that, the complainant, PW2, who was on orphan under the care of her grandmother had gone out to play, as is usual with children her age. It was while they were playing that the appellant, who is her uncle and neighbour called her, held h…