M.W v Republic [2013] eKLR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL APPEAL NO. 89 OF 2009
M.W…....................................................APPELLANT
VERSUS
REPUBLIC..............................................RESPONDENT
(Being An Appeal From The Original Conviction And Sentence Contained In The Decision Of The
Hon. B. Mong'are (Senior Resident Magistrate) Delivered On 3rd June, 2009 In Eldoret Chief
Magistrate's Criminal Case No. 2041 Of 2009)
JUDGMENT
In Count I, the Appellant M. W was charged with incest by male contrary to Section 20 (1) of the Sexual
Offences Act No. 3 of 2006.
Particulars of the charge were that on the 29th day of March, 2009 in Lugari District within Western
Province unlawfully and intentionally did an act which caused penetration with a female person in that he
caused penetration of his genital organ (particulars withheld) into the genital organ (particulars withheld)
of C. M a girl child of the age of ten (10) years who is to his knowledge was his daughter.
In the alternative to Count I he was charged with indecent act with a child contrary to Section 11 (1) of
the Sexual Offences Act No. 3 of 2006.
Particulars of the charge are that on the 29th day of March, 2009 in Lugari District within Western
Province unlawfully had indecent act with C. M a girl aged ten (10) years by touching her private parts
namely vagina.
In Count II he was charged with deliberate transmission of HIV (Human Immunodeficiency Virus)
contrary to Section 26 (1) of the Sexual Offences Act No. 3 of 2006
Particulars of the same were that on the 29th day of March, 2009 in Lugari District within Western
Province having actual knowledge that he was infected with Human Immunodeficiency Virus (HIV)
knowingly and willfully caused penetration of his genital organ (particulars withheld) into the genital
organ (particulars withheld) of C. M a girl aged ten (10) years an act which was likely to lead the said C.
M to be infected with Human Immunodeficiency Virus (HIV).
The trial court found the Appellant guilty in Counts 1 and II and was sentenced to life imprisonment and
30 years imprisonment respectively. The sentences were ordered to run concurrently.
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