https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/426

Republic v Hamisi (Sexual Offence E045 of 2025) [2026] KEMC 426 (KLR) (6 August 2026) (Judgment) Neutral citation: [2026] KEMC 426 (KLR) Republic of Kenya In the Malaba Law Courts Sexual Offence E045 of 2025 AZ Ogange, RM August 6, 2026 Between Republic Prosecution and Kassim Hamisi Accused Judgment Introduction and Evidence 1.The accused person took plea on 29th September 2025 on the charge of Committing an Indecent Act with an adult contrary to section 11(A) of the Sexual Offences Act. 2.The particulars are that the accused person on the 17th day of September 2025 at Malaba town in Teso North Sub-County within Busia County intentionally touched the anus of EE with his penis against his will. 3.The accused person pleaded not guilty to the charges. The court called for a Pre-Bail Report which report was not favorable and indicated that the accused person is a flight risk. The report further failed to take into account the victims sentiments and the matter proceeded with the accused person in remand. 4.The matter was set down for hearing and the prosecution called a total of four witnesses. 5.The complainant testified as PW1. The court upon assessment of the said complainant deemed it fit to conduct a voire dire. The complainant upon such examination gave unsworn evidence. He told the court that he is 23 years old and the incident occurred on 17th September 2025 when he was praying for passengers at the [Particulars Withheld] area in Malaba. That there was a boy who was manning the toilets and denied him access to the toilets forcing him to relieve himself on the road near a bridge. That the boy came and pulled him and inserted what he referred to as his thing used for urination. That the boy made him fall and tried to insert it inside him. They struggled and he felt pain. That the boy ran away and he went to sleep at the police station. He went home the following day. He told the court that he had not met the accused person prior to the incident but saw him using moonlight. That he was taken to the hospital by his father after the incident. 6.On cross-examination he testified that he was assaulted at 2000hours in the month of July. That at the time there were people inside the immigration building not outside. That there was a security man and he was afraid to report but he later reported the incident to boda boda riders. That the people at the [Particulars Withheld] area were inside the offices waiting for buses from Mbale and Kampala. He confirmed that the immigration area has CCTV cameras. 7.In re-examination he testified that the incident took place at [Particulars Withheld] area. 8.PW2 was the clinical Officer one Protus Okhonga Wafula from Teso North Sub-County Hospital and who testified that he examined the complainant on 25th September 2025 and who alleged to have been assaulted by a person known to him on 17th September 2025 at Malaba Bridge near [Particulars Withheld] area but could not remember the suspects house. That he felt pain on the waist and had difficulty going for a long call for a period of nine days. That his private parts and anus did not have any sores. That on laboratory examination all tests were okay and he administered laxatives and pain killers. He approximated the injuries to be seven to eight days. The anus had no lacerations and there was no proof of penetration. He produced the treatment notes, P3 form and PRC form as PEXH 1, 2 and 3 respectively. That the pain in the waist was caused by the failure to go for a long call and there was no correlation between the sexual assault and the symptoms that the accused person had. 9.On cross-examination he confirmed that there were no sores or injuries on the anus and he could not tell whether the complainant was touched or not. That he did not know if the incident was in July but he indicated that the approximate age of injuries was seven to eight days with the accused person having been assaulted between 17th to 18th September 2025. 10.There was no re-examination for this witness. 11.PW3 was one PPA and father to the complainant who testified that he received a report on 25th September 2025 that his son had been raped by a gentleman at [Particulars Withheld] area. That he was interrogated on whether he knew what had happened to his son but he found him going about his usual business. That the complainant told him that he was raped and he was able to report to the officers on duty and the accused person was arrested. That he did not know the perpetrator to date. That he took his son to hospital and who did not have any infection. That the complainant is a person living with disability but could go about his businesses and could also identify people. 12.On cross-examination he testified that he did not know the accused person and was seeing him for the first time. That he testified in court as father to the complainant and he knew that the incident was in September not July and that the incident occurred at 2000hours. That he reported to the officer at the [Particulars Withheld] office and that it is only the complainant who could tell whether there were people at the time of incident or not. 13.In re-examination he testified that the complainant could not relieve himself in the presence of people. 14.PW4 was the Investigating Officer one PC Asha Sidi who testified that on 25th September 2025 a case of defilement was reported at Malaba Police Station and established that on the night of 17th September 2025 the accused person attempted to assault the complainant who struggled with the accused person and went to report the incident. That three days after the first report, the complainant saw the accused person having tea at the [Particulars Withheld] area and the accused person was arrested by members of the public. That she recorded statements of witnesses and established that the incident was at 2000hours near the river and there were a few people but no one saw the incident. 15.On cross-examination she testified that the accused person was arrested on 28th September 2025 and confirmed that [Particulars Withheld] area has cameras. 16.In re-examination she testified that the accused person was arrested on 26th September 2025. 17.This marked close of the prosecution’s case and pursuant to a ruling delivered on 28th May 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give unsworn evidence without calling any witnesses. 18.He testified that on 23rd September 2025 he left Uganda with a packet of cigarettes and he was stopped at the [Particulars Withheld] area and he was arrested and placed in the cells at the [Particulars Withheld] area. He was later transferred to Malaba Police Station and did not know anything else. That to date he knows nothing about the offence. 19.This marked close of the defence case and the court reserved the matter for judgment on 6th August 2026 Analysis and Determination 20.This case presents a difficult question for the court. The charge concerns the offence of committing an indecent act with an adult. It is not disputed that the complainant is a vulnerable adult with special needs. Throughout the proceedings, the court directly observed that the complainant experienced communication difficulties and frequently fell asleep during the hearing. Indeed both the complainant and his father PW3 informed the court that he had a tendency to fall asleep unexpectedly. Owing to the apparent communication challenges, the court considered it necessary to conduct a voire dire examination before receiving his evidence which was ultimately taken unsworn. 21.The complainant stated that the accused person “put his thing to urinate” and that he experienced pain. However, he did not clearly describe the nature of the alleged indecent act or identify the part of his body that was allegedly touched. At another point, he stated that the accused person merely attempted the act and that they struggled. The evidence therefore remained unclear as to what exactly transpired between the complainant and the accused person. 22.The medical evidence did not resolve these uncertainties. The clinical officer testified that there was no evidence of penetration and was unable to conclude whether the complainant had been subjected to any form of sexual touching. While proof of penetration is not an ingredient of the offence of committing an indecent act, the medical evidence did not provide corroboration of the alleged unlawful contact. 23.The prosecution case also left significant evidential gaps regarding the circumstances surrounding the alleged incident. According to the evidence on record, the incident occurred within [Particulars Withheld] area. The court takes judicial notice that the [Particulars Withheld] area is ordinarily characterized by substantial human activity, including the movement of buses, trailers, motorists and pedestrians, particularly during operational hours. The investigating officer acknowledged that there were people in the vicinity. Against that background, the prosecution did not lead evidence explaining whether the alleged location was secluded or whether there were circumstances that would account for the alleged struggle occurring without attracting the attention of any person. The court does not suggest that an offence cannot occur in a busy place, however where such circumstances arise, the available evidence should satisfactorily address those matters if they are material to the prosecution case. 24.Similarly, although there was evidence that CCTV Cameras existed within the Custom area, no evidence was led as to whether the alleged scene was covered by those cameras, whether footage was retrieved or whether the location constituted a blind spot. The absence of such evidence does not by itself render the prosecution case untenable. However, where CCTV evidence was reasonably available and capable of shedding light on disputed events, the failure to account for its absence leaves an evidential gap which the court cannot fill by conjecture. 25.The complainant further stated that he initially reported the incident at the [Particulars Withheld] Police Station. This evidence was corroborated by the Investigating Officer. However, no evidence of such a first report was produced nor was any officer from [Particulars Withheld] Police Station called to testify regarding the contents or timing of that report. The first report disclosed by the evidence before the court was made on 25th September 2025. The prosecution offered no explanation for this discrepancy or for the absence of evidence relating to the alleged initial report. 26.Having considered the evidence in its entirety, the court is alive to the complainant’s vulnerability and the need to ensure that persons with disabilities have equal access to justice. Equally, the court must remain faithful to the fundamental principle that an accused person may only be convicted where the prosecution has proved the charge beyond reasonable doubt. 27.The upshot of my findings therefore is that having considered the evidence on record, it is apparent that the court was left with reasonable doubt as to whether the prosecution had established all the elements of the offence. These doubts must in accordance with the law be resolved in favor of the accused person. Accordingly, the accused person is acquitted under Section 215 of the Criminal Procedure Code on the offence of Committing an Indecent Act with an Adult contrary to section 11(A) of the Sexual Offences Act No. 3 of 2006. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 6TH DAY OF AUGUST, 2026.A.Z. OGANGERESIDENT MAGISTRATE06. 08.2026In the Presence ofKassim Hamisi the Accused PersonMr. T. Rotich Prosecution CounselCourt Assistant: Paul Otieno