https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/581

Republic v Kachari (Sexual Offence E005 of 2026) [2026] KEMC 581 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEMC 581 (KLR) Republic of Kenya In the Bungoma Law Courts Sexual Offence E005 of 2026 TO Omono, SRM July 8, 2026 Between Republic Prosecution and Afas Kwendo Kachari Accused Ruling 1.Afas Kwendo Kachari (“the Accused Person”) was arraigned on 19th January 2026, to answer a charge of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 003 of 2006, whose particulars are that:On the diverse dates between November 2024 to (sic) October 2025, at [Particulars Withheld] Sub-Location, East Bukusu Location, Bungoma South Sub-County within Bungoma County, the Accused Person intentionally and unlawfully caused his penis to penetrate the vagina of one NFM a child aged 13 years 2.The Accused Person also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 003 of 2006, whose particulars are that:On the diverse dates between November 2024 to (sic) October 2025, at [Particulars Withheld] Sub-Location, East Bukusu Location, Bungoma South Sub-County within Bungoma County, the Accused Person intentionally and unlawfully caused his penis to penetrate the vagina of one NFM a child aged 13 years 3.The Accused Person denied all the charges facing him, prompting the prosecution to call five (5) witnesses in a bid to prove their case against the Accused Person beyond reasonable doubt. 4.The evidence led by the prosecution before this court is summarized below. Evidence Prosecution’s Case 5.PW1 NFM testified that she was 13 years old and that she was born on 24th June 2012. She stated that the Accused Person was well known to her as babu and that her family had bought land from him. 6.She recalled that sometime in November 2024, she went to cook for the Accused Person when the Accused Person caressed her breasts and vagina. She managed to push the Accused Person and fled. 7.She added that the Accused Person later asked her to cook for him on a weekend in November 2025 when the Accused Person pushed her to her bedroom, where he defiled her on his bed. She also stated that she could not scream since the Accused Person had applied some medicine on her palms and mouth. 8.Several days later, her mother noticed changes in her body and took her to the hospital for medical examination, when it was discovered that she was pregnant. They reported the matter to their village elder and the police. Police officers issued her with a P3 form, which was duly filled. 9.In cross-examination, she stated that she had not had sex with any other person other than the Accused Person. 10.PW2 ANW is the complainant’s mother. She stated that PW1 was born on 24th June 2012. Her testimony was that sometime in August 2025, she noticed that PW1 had a problem. She decided to escort PW1 to [Particulars Withheld] dispensary for a medical examination, where it was discovered that PW1 was pregnant. PW1 told her that the Accused Person was the one who had defiled her, leading to the pregnancy. 11.She added that the Accused Person fled from his home on learning that they had reported the defilement incident to the police. She also stated that PW1 told her that the Accused Person had defiled her thrice. 12.PW3 Godfrey Wanjala Khaemba is a Clinical Officer from Bulondo Health Centre. He testified that PW1 visited the facility on 13th October 2025 with a history of having been defiled in May 2025, leading to a pregnancy. 13.He examined PW1 and established that PW1 was 24 weeks pregnant. His examination also revealed that PW1’s hymen was absent. Given the absence of the hymen and the pregnancy, he formed an opinion that PW1 had been defiled. 14.He produced PW1’s treatment notes from [Particulars Withheld] Health Centre and the P3 form dated 14th October 2025 as exhibits. 15.PW4 Davis Rono Kiplangat, a Government Analyst from the Government Chemist’s Department, Kisumu, produced a Government Analyst’s report (DNA examination report) dated 15th April 2026 showing that the Accused Person was not the biological father of JK who is NFM.’s(PW1) biological child. 16.PW5 No. 234xxx PC (W) Claire Nyarotso Madiba attached to Namwacha Patrol Base, investigated this case. Her testimony was largely a rendition of PW1 and PW2’s testimony. 17.She produced PW1’s Ante-Natal Clinic booklet, a letter dated 19th January 2026 from [Particulars Withheld] school, and a copy of PW1’s birth certificate serial No. 864xxxx as exhibits. 18.She added in cross-examination that PW1 told her that the Accused Person was the only person who had defiled her. She added that the Accused Person was charged because the Accused Person fled to Uganda and Kapkoi after the incident. Prosecution’s and Defence’s Written Submissions 19.After the close of the prosecution's case, both the prosecution and the Accused Person chose to rely on the evidence on record. Analysis and Determination 20.This court has given due regard to the evidence on record. It is this court’s duty at this stage to answer the question of whether the prosecution has established a prima-facie case against the Accused Person. 21.The term prima facie is defined by the Black’s Law Dictionary, 18th edition, as:"A case sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it makes later be proved to be untrue.” 22.In Ronald Nyaga Kiura vs. Republic [2018] eKLR, the court defined a prima facie case as follows:“…A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.” 23.Guided by the authorities above, the question that rings in the mind of this court at this stage is whether the evidence on record is sufficient for this court to return a guilty verdict if the Accused Person gives no other explanation in rebuttal. 24.The Accused Person faces a charge of defilement contrary to Section 8(1)(3) of the Sexual Offences Act and a charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. 25.In George Opondo Olunga v Republic [2016] eKLR, the court stated that the ingredients of the offence of defilement were the age of the victim, penetration, and proper identification of the perpetrator. 26.Going by the particulars of the offence in the alternative charge herein, the prosecution was obligated to lead evidence establishing a prima facie case of the Accused Person’s penis coming into contact with PW1’s vagina before this court places the Accused Person on his defence in respect of the alternative charge. 27.This court proceeds to determine whether the evidence led by the prosecution at this stage established a prima facie case of defilement and committing an indecent act with a child against the Accused Person. 28.The unimpeached evidence on record shows that PW1 was between 12 and 13 years old during the period the Accused Person reportedly defiled her. Further, given that PW1 became pregnant after the incident and in the absence of evidence of PW1 becoming pregnant through divine intervention or In Vitro Fertilization (IVF), it follows that the evidence led by the prosecution thus far proved that a penis penetrated her vagina during the period in question. 29.On the identity of the perpetrator, PW1, PW2, and PW5 maintained that the Accused Person defiled PW1. 30.PW1 reiterated that she became pregnant after she had sex with the Accused Person on a certain weekend in November 2025. She added that she only had sex with the Accused, thus the Accused Person was responsible for her pregnancy. She also stated that the Accused Person defiled her on one occasion. This contradicted the particulars of the main charge that the Accused Person defiled PW1 on diverse dates. 31.The evidence led by PW4 through the Government Analyst report dated 15th April 2026 excluded the Accused Person as the biological father of JK who was reportedly born as a result of the defilement incident herein. 32.PW5, when confronted by the Accused Person on why he was charged with the offences herein, yet the Government Analyst report ruled out the possibility of him being the father of the child born as a result of the defilement incident, stated that it was possible for a victim to be defiled by another person and to be impregnated by another person. PW5 was simply stating that the Government Analyst report on record ought not to be read in isolation. 33.This court agrees with PW5 that a Government Analyst report in defilement cases should not be read in isolation but should be read together with the other evidence on record since a victim can be defiled by another person and also be impregnated by another person on the same day, week or month. 34.However, the circumstances of this case are different. PW1 maintained that the Accused Person was the person who defiled her and impregnated her sometime in November 2025. She did not speak of any other incident where the Accused Person or any other person defiled her. It should also be remembered that PW1 was the only person who witnessed the alleged defilement incident. 35.The foregoing begs the question whether the evidence on record on the identity of the perpetrator of the offences herein warrants putting the Accused Person on his defence. The question above was answered in Simon Gichuki Maina v Republic [2016] KEHC 2924 (KLR) by Odero, J, when confronted with a situation like the one obtaining in this case as follows:“The trial magistrate seems to be gravely disappointed by the fact that the DNA results did not support the evidence given by the complainant. It is not the business of the court to side with one or other party in a case. The court must maintain an open mind and decide a case purely upon the basis of the evidence presented to it. A magistrate should never try to twist and/or manipulate evidence to suit a certain preconceived position.As noted by the trial court, the complainant claimed she was a virgin when defiled and claimed that the only sexual encounter she ever had was with the appellant. PW4 an expert witness called by the prosecution told the court that the DNA test positively excluded the appellant as the father of the child borne by the complainant as a result of this alleged defilement. This was a scientific test and was not controverted in any way. Whilst paternity test cannot conclusively prove the fact of defilement, these DNA results cast genuine doubt on the evidence of the complainant and bring her veracity into question. If as proved appellant was not the father of her child, then the complainant must have had sexual intercourse with a person other than the appellant and that person fathered her child. Her identification of the appellant as the man who defiled her is cast into doubt. The very real possibility that the complainant only named (identified) the appellant purely to shield some other third party cannot be entirely ruled out.Nobody witnessed the defilement. Nobody saw appellant in the company of the complainant. The complainant’s claim that the appellant fathered her child through this act of defilement has been disproved by scientific evidence. I find that pertinent and genuine doubts remain regarding the identification of the appellant by the complainant. Once a witness is found to have been untruthful in one aspect of his testimony, then the entire testimony of that witness is cast into doubt. The benefit of such doubt must be awarded to the appellant. As such he was entitled to an acquittal. The trial magistrate erred in rendering a conviction in this case. I therefore quash the appellant’s conviction on the charge of defilement. “(Emphasis added) 36.The authority above is abundantly clear that where it turns out that the complainant lied about the paternity of the child born as a result of a defilement incident after insisting that the Accused Person was the only person who defiled her leading to the pregnancy yet she was the only witness to the incident, that lie on the paternity of the child born as a result of a defilement incident casts reasonable doubts on the complainant’s evidence about the perpetrator of the offence. 37.PW1 was the only witness to the alleged defilement incident. The fact that she lied about the identity of her child’s father casts reasonable doubts on her testimony on the identity of the perpetrator. Therefore, PW1’s testimony on the identity of the perpetrator herein crumbles like a house of cards. This is in line with the Latin maxim falsus in uno, falsus in omnibus ("false in one thing, false in everything"). The said maxim was restated by Ochieng J (as he then was) in Republic v Mohamed Noor Kailey [2012] KEHC 2572 (KLR) thus:“Of course, falsus in uno, falsus in omnibus; meaning that when a witness willfully falsifies one matter he is deemed not to be credible on any matter. His false testimony in the one matter discredits the rest of his testimony if it is without corroboration.”(Emphasis added) 38.Lastly, the mere fact that the Accused Person fled after the incident was reported to the police does not mean that the Accused Person was guilty of the offences herein, as suggested by PW5. A person may run away after a report has been made against them to the police out of fear of mob justice or even fear of police harassment. The act of an Accused Person running away after an incident must be corroborated by evidence pointing to his guilt for that act to be deemed to be proof of the Accused Person’s guilt. 39.It is abundantly clear from the analysis above that there are reasonable doubts as to whether the Accused Person defiled PW1 on the weekend of November 2025 as alleged by PW1. This also means that there are reasonable doubts about whether the Accused Person committed an indecent act with PW1 on that weekend of November 2025 by causing his penis to come into contact with PW1’s vagina. The said doubt must be resolved in the Accused Person’s favour. 40.The foregoing leaves no doubt in this court’s mind that even if this court places the Accused Person on his defence, and the Accused Person elects to remain silent, the Accused Person will ultimately walk away a free man. In the words of Sharma J in Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16, placing the Accused Person on his defence, based on the prosecution’s evidence on record, will be for the sake of the joy of asking for an explanation or the gratification of knowing what the accused has to say about the prosecution’s evidence. 41.The reasons above are sufficient for this court not to engage in an academic exercise of placing the Accused Person on his defence. Determination 42.The upshot of the above is that the Accused Person is acquitted under section 210 of the Criminal Procedure Code for the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act, and the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. 43.The Accused Person is set at liberty unless otherwise lawfully held. 44.It is so ordered. RULING READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 08TH DAY OF JULY 2026T. O. OMONOSENIOR RESIDENT MAGISTRATEIn the presence of:Accused PersonMs. Karani for ODPPC/A: Mr. Rioba