https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/140

Republic v Emujele (Sexual Offence E017 of 2025) [2026] KEMC 140 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 140 (KLR) Republic of Kenya In the Malaba Law Courts Sexual Offence E017 of 2025 OA Zowade, RM June 25, 2026 Between Republic Prosecutor and Simon Murunga Emujele Accused Judgment 1.The accused person took plea on 4th April 2025 on the charge of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 2 of 2006. 2.The particulars are that on diverse dates between January 2025 and April 2025 at Sokomoko area in Teso North Sub-County within Busia County intentionally and unlawfully caused his penis to penetrate the vagina M.W a child aged 17 years. 3.The accused person was charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 2 of 2006. 4.The particulars are that on diverse dates between January 2025 and April 2025 at Sokomoko area in Teso North Sub-County within Busia County intentionally touched the breast and vagina of M.W a child aged 17 years. 5.The accused person pleaded not guilty to the charges and was admitted to Bond terms of Kshs. 100,000/= with surety of similar amount. The matter was fixed for hearing and the prosecution called a total of three witnesses. 6.PW1 was one J.A.E mother to the victim who testified that her daughter disappeared from home between February 2025 and April 2025 when she was called and informed that her daughter was at Malaba Police Station. She was later called by her daughter’s school and informed that she was pregnant. That she later told her that one Daru was responsible for the pregnancy That she took her to Amukura Level 4 Hospital. That she knew Daru who was a neighbor and did not know the accused person before court. That her daughter was born on 3rd November 2007. 7.On cross-examination she testified that the girl had never told her where she used to go. 8.There was no re-examination for this witness. 9.PW2 was the investigating officer one CPL Nelly Naliaka who testified that on 2nd April 2025 a case of defilement was minuted to her for investigation. She recorded statements of witnesses and accused person and took both the complainant and the accused person to the hospital for examination together with the wife to the accused person. That the complainant was a friend to the accused person’s wife with whom they shared a house. She charged the accused person with the instant offence and she did not visit the scene That the whereabouts of the complainant remained unknown until the date of hearing. That an age assessment was conducted on the complainant and it was established that she was below the age of 17 years. She was pregnant at the time and she told them that the accused person was not the father of the child. 10.On cross-examination she testified that she was not at the scene and the accused person was arrested by nyumba kumi. That the complainant visited the accused person and his wife as a guest. That the doctor was best placed to confirm whether the accused person had sexual intercourse with the girls or not. 11.There was no re-examination for this witness. 12.PW3 was the clinical officer one Pauline Sirengo who testified that she examined a child M.W on 2nd April 2025 and who had been defiled by a person well known to her on 27th January 2025 and her last monthly period being 25th December 2024. On examination she had an old broken hymen, with whitish discharge and was pregnant with the age of pregnancy being approximately 14 weeks. According to the history given by the patient she was defiled by two people on two different occasions one in November and another in January. She was advised to attend Antenatal clinic and placed on medication. 13.On cross-examination she testified that the complainant was defiled by two different people on two different occasions but she could not ascertain who was responsible for the pregnancy. That the complainant did not identify the perpetrator. 14.There was no re-examination for this witness. The prosecution was given an opportunity to avail the complainant to no avail and closed its case without the complainant having testified. 15.Pursuant to a ruling delivered on 26th February 2026 the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give sworn evidence without calling any witnesses. 16.In defense he told the court that he was living in Sokomoko area with his wife who was pregnant at the time. That his wife was with a girl whom he was informed was his wife’s sister and who would assist his wife during her pregnancy. That at 2300hours nyumba kumi knocked at his door and he was threatened to admit that the other lady was also his wife. That the following morning they went to Kocholia Hospital and was informed that the other lady was also pregnant. That the case was as a result of a grudge between himself and nyumba kumi who had once asked him for “tea” and which he did not have. 17.On cross-examination he testified to having met the girl once and that she was to assist her wife during her pregnancy. 18.This marked close of the defense case and the court reserved the matter for mention on 12th May 2026 to fix a date of judgment which was subsequently scheduled for 25th June 2026. Analysis and Determination 19.The ingredients of the offence of defilement are now settled; proof of age of the complainant, proof of penetration and proof of the identity of the perpetrator. Ordinarily the court would proceed to interrogate each of these elements against the evidence on record. 20.In the present case however, such an exercise would serve little purpose. This is because the prosecution’s case taken as a whole, was fundamentally incoherent and incapable sustaining a charge from the onset. 21.This is not merely because the complainant did not testify. It is trite that failure by a complainant to testify is not, of itself, fatal to the prosecution case, provided the remaining evidence is sufficient to establish the ingredients of the offence. The court must still weigh the totality of the evidence presented. 22.Here, however, the evidence tendered by the prosecution did not establish a coherent case of defilement. The investigating officer appeared to prosecute a case of pregnancy rather than defilement. Crucially, she testified that the accused person was not responsible for the pregnancy. That evidence, far from advancing the prosecution’s case, severed any nexus between the accused and the alleged sexual act. 23.The complainant’s mother was equally unable to connect the accused person to the offence. She testified that she did not know the accused person and similarly spoke of the pregnancy attributing responsibility to one Daru. 24.The only witness who touched on the element of penetration was the clinical officer. While her evidence may have supported the fact of sexual intercourse. She testified that the complainant had been defiled by two different persons, thereby further introducing uncertainty in the identity of the perpetrator. 25.Taken together, the prosecution evidence was contradictory, disjointed and wholly insufficient to prove the charge beyond reasonable doubt. Rather than establishing defilement by the accused person, the evidence pointed in different directions and left the court to speculate on the identity of the offender which it cannot do. 26.The inevitable conclusion is that the prosecution failed to prove its case against the accused person and was a non-starter from the very beginning. 27.Accordingly, the accused person is acquitted of the main count of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act and the alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act under Section 210 of the Criminal Procedure Code under Section 215 of the Criminal Procedure Code. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 25TH DAY OF JUNE, 2026.In the Presence ofSimon Murunga Emujele the Accused PersonMr. T. Rotich Prosecution CounselCourt Assistant: Paul OtienoA.Z. OGANGERESIDENT MAGISTRATE