https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/441

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **SOA CASE NO. E053 OF 2025** **REPUBLIC……………………………………………………………..…..…..PROSECUTOR** VERSUS **D.W……………………..………………..…………………….…………………….... ACCUSED** **JUDGMENT.** **Introduction and Evidence** 1. The accused person was presented before court for plea taking on 26th November 2025. The court upon enquiry and upon a copy of birth certificate of accused person being availed ascertained that the accused person was seventeen years old. Subsequently, Ms. Waswanni Advocate was appointed as counsel for the subject. The charge sheet in this matter was amended on 5th May 2026 with the accused person being charged with two counts of Attempted Defilement. 2. He was charged with attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act. 3. The particulars are that the subject on the 22nd day of November 2025 at Kaliwa location in Teso Central sub-county within Busia County intentionally and unlawfully attempted to cause his penis to penetrate the vagina of G.F a child aged 7 years old. 4. He was charged with a second count of attempted defilement with the particulars being that on 22nd November 2025 at Kaliwa location in Teso Central sub-county within Busia County, the subject intentionally and unlawfully attempted to cause his penis to penetrate the vagina of K.R a child aged 6 years. 5. He was further charged with the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. 6. The particulars are that the subject on the 22nd day of November 2025 at Kaliwa Location in Teso Central Sub County within Busia County intentionally and unlawfully caused his penis to touch the vagina of G.F a child aged 7 years old. 7. He was further charged with a second alternative count of committing an indecent act with a child with the particulars being that the subject on the 22nd day of November 2025 at Kaliwa Location in Teso Central Sub-County within Busia County intentionally and unlawfully caused his penis to touch the vagina of K.R a child aged 6 years old. 8. He was admitted to bond terms of Kshs. 100,000/= with surety of similar amount and the matter was set down for hearing. The prosecution called a total of six witnesses. 9. PW1 was the mother to the minors G.N who testified that on 22nd November 2025 her daughter K.R told her that Danny had been doing bad manners to her. She told her mother that the accused person liked to “soda” by inserting his “koko” inside hers. That in the luhya dialect “sota’ referred to sex. She told the girl that they should report to their father. The elder child also told her that the incident had occurred three to four times in the kitchen of one Petronilla. They reported the incident at Amukura Police Station, statements were recorded and the children’s department was involved. She also took the minors to the hospital for examination. She testified that F.G was seven years old and K.R was 6 years old. 10. On cross-examination she testified that F.G told her that the last incident was 22nd November 2025 but K.R could not remember the date. That they went to hospital on 24th November 2025 and they did not ordinarily reside in that area. That she knew Danny who assisted them in their farm. That many people visit their compound but it was not possible that any other person could have done the act. That their compound had nearby sugarcane plantations where the children alleged to have been touched. That her co wife was aware of the incident but she did not report to have seen the subject on the 22nd day of November 2025. That G.F told her that the accused person had put her “dodo” inside hers and it was painful. That the girls were assaulted severally but not usually when they were together. 11. There was no re-examination for this witness. 12. PW2 was on F.G who gave unsworn evidence and who testified that sugarcane is planted at home and the subject was doing bad manners to her and her sister. That the subject further did bad manners to them at the kitchen belonging to one Mama Noel, she felt pain and told her mother what the subject was doing to her. That she knew the subject as Dani. 13. On cross-examination she testified that where they live she had not done bad manners with her friend. That Dani did something bad to her and it was not the first time. That she was no present when Dani did bad manners to her sister. That one Mama Noel did not see Dani do bad manners to her. 14. There was no re-examination for this witness. 15. PW3 was one K.N who equally gave unsworn evidence testified that Danny did bad manners to her and her sister and he put what she referred to as “koko” inside hers. That they had clothes at the time and she was not with her sister. That she was treated at Amukura Hospital and felt bad about the incident. That the subject did it many times with one time being at the sugar cane plantation and in the kitchen of Mama Noel. 16. On cross-examination she testified that Danny gave them sugar cane and put his “koko” inside them. That she felt bad about the incident and at the same time she felt pain. 17. There was no re-examination for this witness. 18. PW4 was one P.A and father to the minors who testified that on 23rd November 2025 at 2100hours his wife told him that one Dani had sexual intercourse with both of his children. He spoke to K.R who told him that Danny was trying to have sex with both of them in the kitchen of Mama Noel and in the sugar cane plantation. He interrogated the second child who confirmed that the incident had occurred. They reported at Amukura Police Station. Statements were recorded and the children were examined where it was established that there was a swelling and bruises. That Dani would help them at their home with menial jobs. 19. On cross-examination he testified that two of his children were defiled by the same person and who he knew well. That he did not report the issue at the police station to avoid paying salary arrears. That the incident occurred in the kitchen of one Mama Noel and that the larger compound was shared by 7 to 8 people but he could not tell if there were people at the time of the incidences and there had been no prior complain. 20. PW5 was one Winnie Nabalayo Clinical Officer from Amukura Level 4 Hospital who testified that she saw two patients on 24th November 2025 namely K.R and F.G. The history of sexual assault was given by their mother. That with respect to K.R on vaginal examination everything was okay. There was no discharge and the hymen was intact. On laboratory examination everything was equally okay and she made a diagnosis of attempted defilement as there was no penetration. She however saw inflammation on labia minora at 4 o’ clock but the labia marjora was normal. She filled a P3 form with similar information and produced treatment notes as PEXH 1(b) and 3(b) respectively. That the minor could not remember date of incident and despite the inflammation she could not tell if attempt was of the same day. 21. That she also examined F.G who on vaginal examination there was no discharge, labia minora was inflamed, labia marjora was normal and hymen was present. She arrived at a conclusion that no penetration had occurred. That all laboratory tests were equally okay. That she saw the minor after three days and the reddening of the labia minora had gone down. 22. On cross-examination she testified that with regard to K.R Labia Minora was okay. She further testified that it was not possible that the labia minora be inflamed without the labia marjora being equally inflamed. That a child or adult even itching or scratching would lead to inflammation of the labia minora and it is possible that some scented soaps cause itchiness and lead to inflammation. 23. There was no re-examination for this witness. 24. PW6 was the investigating officer one PC Samwel Mauti who testified that on 24th November 2025 one Patrick and his wife accompanied by their two children reported that their neighbor a student was touching their children inappropriately. He booked their report and sent them to the children’s office and later recorded all their statements. He went to Kaliwa Village and arrested the subject. They all went to hospital and he charged the accused person with the offence before court. He was able to ascertain the ages of the children whose birth certificates were availed. That K.R was born on 15th November 2019 and F.G was born on 21st October 2018. He produced copies of the birth certificates as PEXH 2(a) and 2(b). 25. On cross-examination he testified that the children said that the incident occurred at a sugar cane plantation and this was not an isolated incident. That the children identified the accused person. That he relied on the evidence of the minors who could not lie. 26. In re-examination he testified that the children did not speak of the offence being committed in Butula and the photographs he took did not have any weight in this case. 27. This marked close of the prosecution’s case and pursuant to a ruling delivered on 4th June 2026, the subject was placed on his defence under Section 211 of the Criminal Procedure Code. 28. He elected to give sworn evidence and call one witness. However, on the date of defence hearing, he testified on his own behalf without calling any witnesses. 29. He testified that on 22nd November he was going about his business as usual and left. He went to follow up payment after two days when he saw officers who arrested him who later told him that he had defiled children. That he worked for a lady on that date and never saw the complainants. 30. On cross-examination he testified that he did not know the children at all and they owe him Ksh. 500/= for the work that he did. 31. There was no re-examination for this witness. 32. This marked close of the defence case and the court reserved the matter for judgment on 6th August 2026. **Analysis and Determination** **Count 1: Attempted defilement of F.G** 1. Section 9(1) and 9(2) of the [***Sexual Offence Act***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2006/3)provides that: “9(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement. (2)A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years” 1. In the case of [***Benson Musumbi v Republic***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2019/8723)**[2019] KEHC 8723 (KLR)** the court stated as follows on the ingredients of the offence of attempted defilement: ***“The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is as if it were a failed defilement, because there was no penetration.”*** 1. In [***John Gatheru Wanyoike v Republic***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2019/7622)**[2019] eKLR** the court reiterated as follows: ***“It is clear that the elements of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the child was a minor, that there was an act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.”*** 1. This court has to establish the following elements if the offence of attempted defilement were proved beyond reasonable doubt: ***a)*** ***Whether the age of the complainant was proved.*** ***b)*** ***Whether there was an act to cause penetration, which was not successful.*** ***c******) Whether the accused person was positivitely identified by the minor as her assailant.*** 1. It has been held that the age of the victim in sexual offences can also be proved by the direct evidence of parents or guardian or by observation by the court. In **Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR)cited with approval Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No. 2 of 2000** which held that: ***“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.”*** 1. The importance of proving the age of the complainant in sexual offences was emphasized in **Alfayo Gombe Okello v Republic [2010] KECA 319 (KLR)** where the Court stated that: ***“In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently, the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1)…proof of age of a victim is a crucial factor in cases of defilement under Sexual Offences Act. It must be proved failing which the offence will not have been proved beyond reasonable doubt in material particulars.”*** 1. In **Dominic Kibet v Republic Criminal Appeal No. 155 of 2011** it was held that: ***“…while the Court may in certain circumstances rely on evidence other than an age assessment report, the onus of proving the age of the victim resides with the prosecution and a simple statement by the complainant as to their age does not in my view constitute such proof.”*** 1. In the case of **JOA v Republic [2019] eKLR** the court expressed itself as follows regarding the issue of age, ***“whereas proof of age of a complainant in defilement cases is a duty of the prosecution, to establish the age of the victim of defilement, it is equally trite law that proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certificate, birth notification, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation by the court, or testimony by the parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim.***” 1. In this case the complainant testified that she was seven years old. Her evidence was corroborated by her mother who testified as PW1 that the minor was seven years old. This evidence was further corroborated by the investigating officer who testified that in the course of his investigations he was able to come across the birth certificate of F.G who was born on 21st October 2018 and he produced a copy of birth certificate as PEXH 2(a). The evidence on age was not challenged by defence counsel. The offence is alleged to have been committed on 22nd November 2025. Simple arithmetic therefore shows that the victim was seven years at the time of committal of the offence. Based on the evidence of the parent and the copy of the birth certificate produced in court coupled with observation of the court as guided by the authorities hereinabove, it is the finding of the court that the ingredient of age was proven by the prosecution. 2. On ***Whether there was an act to cause penetration, which was not successful,*** In [***David Ochieng Aketch v Republic***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2015/679)**[2015] eKLR Makau J** observed as follows on attempted defilement: ***“The appellant was charged and convicted with an attempted defilement contrary to Section 9 (1) of***[***Sexual Offences Act***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2006/3)***No. 3 of 2006. What is attempted defilement? It can safely be stated to be the unsuccessful defilement. For a successful prosecution of an offence of attempted defilement, the prosecution must adduce sufficient evidence to the required standard to prove an attempted penetration. This may in my view include bruises or lacerations from complainant’s vagina and/or bruises or lacerations of culprit’s genital organ and finding male discharge such as semen or spermatozoa outside the complainant’s vagina or innerwear without there being penetration. There was absence of penetration or evidence linking the culprit with the offence of attempted defilement.”*** 1. In the case of **Benson Musumbi v Republic [2019] eKLR** it was stated that: ***“In order to prove an attempt to commit an offence, the prosecution must prove the mens rea which is the intention and the actus reus which constitute the overt act which is geared to the execution of the intention. The actus reus must be more than mere preparation to commit the act as there is a difference between mere preparation to commit an offence and attempting to commit an offence.”*** 2. Section 388 of the [***Penal Code***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1948/81)defines “attempt” as: - ***When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.*** ***It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.*** ***It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.*** 1. Further the Court of Appeal in **Muganga Chilejo Saha v Republic [2017] KECA 359 (KLR),** held: ***"Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M M v R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial courts should record as nearly as possible what the child says happened to him or her."*** 2. In this case and guided by the authorities above, the complainant testified that the accused person did “bad manners” to her on four occasions. This court is alive to the jurisprudence of the Court of Appeal as seen in paragraph 45 of this judgment that child victims of sexual offences frequently employ age appropriate expressions such as bad manners to describe sexual acts and that the use of such terminology does not of itself render their evidence unreliable. The court must therefore evaluate the entirety of the complainant’s evident in its proper context. 3. The court also observed the complainant testify over three separate hearing dates. She was visibly distressed, had to be stood down and referred to the Department of Children Services for psycho social support. Her discomfort was further demonstrated by her inability to verbally mention the accused person’s name during the proceedings, opting to instead write it down as reflected in the record. The court has no reason to doubt that the complainant genuinely believed that she had been wronged. 4. However, the offence before the court is one of attempted defilement. The prosecution was therefore required to prove beyond reasonable doubt that the subject committed an overt act manifesting an intention to penetrate the complainant’s genital organs. Although penetration need not be proved, there must be evidence of conduct amounting to the intention to cause penetration. 5. In the present case, the complainant did not explain what she meant by bad manners. She did not describe any act committed by the subject. She did not testify that the subject removed or attempted to remove her clothes, lay on top of her, exposed his genitalia, attempted to insert his genital organ into hers, or performed any other act from which the court could infer an intention to penetrate. To conclude that the words bad manners alone established the overt act necessary for attempted defilement would require the court to speculate as to what transpired, yet criminal liability must be founded on evidence and not conjecture. 6. The medical evidence did not assist the prosecution’s case. The clinical officer found reddening of the labia minora but candidly conceded during cross examination that such reddening would ordinarily be accompanied by the reddening of the labia marjora and that the finding could equally have resulted from itching. The medical evidence was therefore inconclusive and neither established nor corroborated attempted penetration. 7. While the accused person admitted being at Mama Noel’s home, one of the locations mentioned by the complainant, his presence at that location without more does not prove the commission of the offence alleged. 8. Accordingly, the court finds that the ingredient of an act to cause penetration that was not successful was not proven by the prosecution. 9. On identification, where identification is based on recognition, this is where the complainant knows the accused and it has been held to be more reliable than identification of a stranger. The Court of Appeal in **Francis Muchiri Joseph v Republic [2014] KECA 199 (KLR)** held that: ***“In LESARAU v R, 1988 KLR 783, this court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name”.*** 1. On the issue of identification, the court is satisfied that the subject was positively identified as the person alleged to have committed acts complained of. Despite the complainant’s obvious discomfort while testifying, evidenced by the fact that the hearing had to be conducted over three separate occasions, her referral to the Department of Children Services and her inability to verbally mention the accused’s name, she consistently identified him by writing down his name as reflected in the record. She further identified locations where the incidents allegedly occurred namely Mama Noel’s home and a nearby sugar cane plantation. Significantly, the accused person himself admitted that he was present at Mama Noel’s home and confirmed the existence of sugar cane plantation albeit denying that he met the complainant and attributing the case to a dispute. The court therefore finds that there was no likelihood of mistaken identity and the ingredient of identification was proven by the prosecution. 2. It is therefore the finding of the court that the prosecution proved beyond reasonable doubt the ingredients of age and identification but failed to prove the essential ingredient of attempted defilement, namely that the accused person committed an overt act directed towards causing penetration which was not completed and the accused person is acquitted of the charge of attempted defilement. **Alternative Count: Committing an Indecent Act with a child F.G.** 1. Based on the analysis at paragraphs 46 to 52 of this judgment, it is the finding of the court that the alternative charge was equally not proved. Although proof of penetration is unnecessary the prosecution was still required to prove an act amounting to an indecent act. The complainant did not describe any specific act of indecent contact, and the court cannot infer such conduct from the phrase “bad manners” alone. The accused person is accordingly acquitted on the alternative charge as well. **Attempted Defilement of Child K.R** ***Whether the age of the complainant was proved.*** 1. In this case the complainant testified that she was six years old. Her evidence was corroborated by her mother who testified as PW1 that the minor was six years old. This evidence was further corroborated by the investigating officer who testified that in the course of his investigations he was able to come across the birth certificate of K.R who was born on 15th November 2019 and he produced a copy of birth certificate as PEXH 2(b). The evidence on age was not challenged by defence counsel. The offence is alleged to have been committed on 22nd November 2025. Simple arithmetic therefore shows that the victim was six years at the time of committal of the offence. Based on the evidence of the parent and the copy of the birth certificate produced in court coupled with observation of the court as guided by the authorities cited in this judgment, it is the finding of the court that the ingredient of age was proven by the prosecution. ***Whether there was an act to cause penetration, which was not successful*** 1. The complainant testified that the accused person put his “koko” inside her. PW1 her mother explained that “koko” is the word the children used to refer to the male genital organ. The complainant further testified that she experienced pain and “felt bad” following the incident. The court once again is mindful that child witnesses often describe alleged sexual acts using age appropriate language and that such expressions must be considered in their proper context. The complainant however also stated that both she and the accused person had their clothes on during the incident and did not give further particulars how the alleged act occurred. The medical evidence i reiterate was inconclusive and did not establish penetration or otherwise clarify the nature of the alleged conduct. While the medical evidence is not determinative of a charge of attempted defilement, the prosecution was nevertheless required to prove, through the totality of the evidence, an overt act directed towards causing penetration. On the evidence presented, the court is not satisfied that this essential ingredient was proved beyond reasonable doubt. ***Whether the accused person was positively identified by the minor as her assailant.*** 1. On the issue of identification, the complainant confidently identified the accused person and testified that she saw him at the home of Mama Noel who lives near their home. The accused person also admitted to being at Mama Noel’s home a fact that is consistent with the complainant’s testimony. The court therefore finds that the identity of the accused person was proved beyond reasonable doubt. 2. It is therefore the finding of the court that the prosecution proved beyond reasonable doubt the ingredients of age and identification but failed to prove the essential ingredient of attempted defilement, namely that the accused person committed an overt act directed towards causing penetration which was not completed and the accused person is acquitted of the charge of attempted defilement. **Alternative Count: Committing an Indecent Act with a child K.R.** 1. Based on the analysis at paragraph 58 of this judgment, it is the finding of the court that the alternative charge was equally not proved. The prosecution did not lead evidence to establish the unlawful contact required to prove the alternative charge. The accused person is accordingly acquitted on the alternative charge as well. 2. The upshot of my findings is that the prosecution failed to prove the main counts of attempted defilement and the alternative charges of committing an indecent act with a child to the required threshold of beyond reasonable doubt and the subject is acquitted under Section 215 of the Criminal Procedure Code. **JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 6TH DAY OF AUGUST, 2026.** In the Presence of D.W the subject Ms. Waswanni Counsel for the Subject Mr. Tony Rotich Prosecution Counsel Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 06.08.2026