NEWTON CHOMBA WATHITHA v REPUBLIC [2012] eKLR My major concern is count two for which the Appellant is serving sentence. Section 8(1) of the Sexual Offences Act under which the Appellant was charged provides; “A person who commits an act which causes Penetration with a child is guilty of an offence termed defilement”. The ACT defines penetration as meaning “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. There is nowhere in the ACT anything talking about “Carnal Connections”. Even if one would close his/her eyes and assume that carnal connection means penetration there is nowhere in the facts read out to the court where it’s shown that the Appellant had the so called carnal connection with the complainant. Finally the P3 form produced therein was so worthless and could not even assist the court. It had writings to the effect that the “Vaginal Canal was open and D.D.T was negative”. I do not know what the learned trial Magistrate interpreted it to mean. A reference to section 169(2) and section 215 Criminal Procedure Code clearly shows that a conviction precedes sentence. Secondly under the Sexual Offences Act No.3 of 2006 there are no words known as “CARNAL CONNECTION”. Thirdly in reference to the case of ADAN –VS- REPUBLIC 1973 EA 445 the main reason why facts are read is to enable the trial court to satisfy himself/herself that the plea of guilty was really unequivocal and that the accused has no defence. The particulars of the charge herein did not disclose the ingredients of a charge of defilement under the Sexual Offences Act. The facts given by the Prosecution did not add any meaningful value to the particulars. The P3 form (EXB 1) did not in any way make things better for the Prosecution. My finding therefore is that the plea was equivocal and cannot be left to stand. I allow the Appeal and quash the conviction. The sentence is set aside. The Appellant to be set at liberty unless otherwise lawfully held under a separate warrant. DATED, SIGNED AND DELIVERED AT EMBU THIS 3RD DAY OF MAY 2012. H.I. ONG’UDI JUDGE In the presence of; M/s Matiru for prosecutor http://www.kenyalaw.org - Page 2/3