DAVID JAIRO & another v REPUBLIC [2012] eKLR
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Criminal Appeal 515 of 2007
(From original conviction and sentence in Criminal Case No. 424 of 2007 of the Chief Magistrate’s Court at
Kibera)
DAVID JAIRO............................................................................................................1 ST APPELLANT
ANN ACHIENG........................................................................................................2 ND APPELLANT
VERSUS
REPUBLIC....................................................................................................................RESPONDENT
JUDGMENT
The 1st Appellant was convicted in the Chief Magistrate Court, Kibera, of defilement contrary toSection 8(1) (3) of
the Sexual offences Act No. 3 of 2006, and an alternative charge of indecent act with a child contrary to Section
11 of the Sexual Offences Act. He was found guilty on count 1 and accordingly sentenced to twenty (20) years
imprisonment. The 2nd Appellant was also found guilty of child prostitution contrary to Section 15(a) of the Sexual
Offences Act. She was sentenced to imprisonment for 14 years. Each Appellant filed a separate appeal against
conviction and sentence and the two appeals were consolidated during the hearing of this appeal.
The 1st Appellant raised 7 amended grounds of appeal ‘‘ 1. THAT the particulars of the charge of defilement contrary to Section 8(1) (3) of the Sexual Offence Act
No. 3 of 2006 did not include (or ommitted) the word “unlawfully’’ thereby rendering the charge sheet
defective for it does not specify any unlawful act or any contravention of the said Act.
2. THAT the learned trial Magistrate erred in both law and fact by relying on uncorroborated, contradictory
and inconsistent evidence of PW2, PW3 PW4 and PW5 on exactly what date the offence is alleged to have
been committed, was it on 30/12/2006, 31/12/2006 and 1/1/2007 and when was she actually taken to Nairobi
Women’s Hospital for treatment?
3.
THAT the learned trial Magistrate misdirected herself by relying on the evidence of PW5 that PW2 had a
bruised virginal opening described as introital bruising, notwithstanding the fact that the said Doctor, PW5
did not give the exact age of the said injuries and