Joel Omino Ngutu v Republic [2013] eKLR
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
Criminal Appeal No. 10 Of 2013
(Appeal Arising From The Original Conviction And Sentencing Of The Principal Magistrate Court Maseno
In Cr.Case No. 1066 Of 2011 – J.Ongondo - Srm)
Joel Omino Ngutu………………………………………........Appellant
Versus
Republic.………….………..………......................................Respondent
JUDGMENT
INTRODUCTION
This is an appeal from the judgment of the Senior Resident Magistrate at Maseno by which the
appellant was convicted of defilement contrary to section 8 (1) (2) OF The Sexual Offences Act and
sentenced to serve life imprisonment. The issues for determination are whether the offence of
defilement was proved beyond reasonable doubt and secondly whether the life sentence awarded to the
appellant was excessive and erroneous, This court's view is that the appeal lacks merits.
BACKGROUND
The appellant was charged with defilement contrary to Section 8 (1) (2) of the Sexual Offences Act
No.3 of 2006.
The particulars of the offence were that on 22.1.2010 at 4 p.m at [particulars withheld] Kisumu West
District, the appellant intentionally caused his penis to penetrate the anus of F O J, a child aged 10
years.
In the alternative the appellant was charged with committing an indecent act with a child contrary to
section 11 (1) of the Sexual Offences Act No. 3 of 2006. The prosecution called four witnesses to
support the charge .
PROSECUTION CASE
F O J (PW1) gave a sworn testimony after voir dire examination by the trial magistrate. He explained
how on 22.1.2010 he was at home alone when the appellant, a neighbour, came there and proposed to
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