https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/367

Republic v Kevin (Sexual Offence E015 of 2025) [2026] KEMC 367 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEMC 367 (KLR) Republic of Kenya In the Malaba Law Courts Sexual Offence E015 of 2025 AZ Ogange, RM July 30, 2026 Between Republic Prosecutor and Wekhanya David Kevin Accused Judgment Introduction and Evidence 1.The accused person took plea on 1st April 2025 on the charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. 2.The particulars are that on the 28th day of March 2025 at around 1800hours at sokoni area in Teso North Sub-County within Busia County unlawfully and intentionally caused his penis to penetrate the vagina of Z.M a child aged 9 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. 3 of 2006. 4.The particulars are that on the 28th day of March 2025 at around 1800hours at sokoni area in Teso North Sub-County within Busia County unlawfully and intentionally touched the vagina of Z.M a child aged 9 years with his penis. 5.The accused person pleaded not guilty to the charges and was admitted to bond terms of Kshs. 200,000/= with surety of similar amount and the matter was set down for hearing. 6.The prosecution called a total of five witnesses. 7.PW1 was the minor Z.M who testified that on 28th March 2025 after getting home from school, she removed her uniform and went to play with her friends. That one Baba Pati was outside and who called her and told her to enter his house. He pushed her into his house and asked her to remove her trouser. She described the house as one big room which had a table, candle, a bed and a kitchen. The door remained open. She refused to remove her trouser and insisted that she wanted to go home. He further instructed her to lie down which she also refused. That the accused person pressed on her and did bad manners to her. That the accused person used his thing to insert it inside his thing. She felt pain and the accused person told her that if she screamed he would not let her go home. He finished and the accused person gave her a cloth and she left. That she did not go home until 2100hours and her grandmother beat her for going home late. That prior to going home she was in the house of persons she referred to as Mama Ble and Baba Ble and she informed them that Baba Pati had done bad manners to her. That they told her grandmother who in turn took her to hospital and later at the police station. That he knew the accused person one Baba Pati and who had been their neighbor for long. That he had a son by the name Pati. She told the court that when she wiped herself she saw blood. That she knew she was ten years old. 8.On cross-examination she testified that Baba Pati lives in a different plot from them and he has neighbors who were not there at the time. That he has a wife who was not there on that date and the accused person called her at about 1800hours. That the house did not have a light and the other children she was playing with remained outside the gate. That the accused person removed her clothes when she refused and pressed on her while she was on the floor and did bad manners to her. That the accused person had never gone to their home or spoken to her grandmother. She could not remember the color of the cloth that she used to wipe herself with. She left that house at 1900hours and continued to play with Betty until 2100hours. On getting home, she was interrogated about her whereabouts and ultimately divulged where she was. On getting to the accused person’s house, they found it locked and they went to the police station and were further advised to go to the hospital. That the accused person was arrested on a Friday evening and their family did not have a dispute with the accused person. 9.There was no re-examination for this witness. 10.PW2 was one Z.J grandmother to the complainant who testified that on 28th March 2025 she was going about her usual business and went back home. That at 2100hours she was yet to see her grand daughter at home. She ultimately came back and on being questioned she told her grandparents that she was at the house of Ble. That after being prodded the victim divulged that she was in the house of someone who had done bad manners to her. She called one Mohammed of Community Policing and upon upon briefing him he came and interrogated the girl. The said Mohammed advised them to report at the police station. She reported and they proceeded to Kocholia Hospital for examination. That on going back home, they went to check whether the suspect was at home but they found the door locked. That she got to know the suspect on the day of his arrest and they do not have any dispute. That the girl is 10 years old. 11.On cross-examination she told the court that she lived with the girl since she was seven months old and the girl does not tell lies. That the girl went to play when she left school and she only saw her at 2100hours when she came back home alone. That she examined the child and beat her so that she could tell the truth. That she could not remember the name of perpetrator. That she did not see blood on the complainant’s trousers. That the clothes were torn and she could not tell if they had been torn by someone else. That the doctor confirmed that the girl had been raped. That the wife to the accused person came to the police station the following day and asked her to settle the matter out of court. She confirmed that the girl was ten years old. 12.There was no re-examination for this witness. 13.PW3 was one Mohammed Dhahir a member of Community Policing and who testified that on 28th March 2025 at 2200hours he was called by a lady and informed that he was needed at their home. He got information that a child had been defiled and he began interrogating the child. That he directed them to report to the police station after the complainant had pointed to the house of the perpetrator. 14.On cross-examination he confirmed having been called between 2100hours to 2200hours. That on arrival, the girl was initially quiet but later divulged that something had been done to her. He neither saw the suspect nor went to his house. That he was informed the following day that the accused person had been arrested. 15.There was no re-examination for this witness. 16.PW4 was the Clinical Officer one Protus Okhonga Wafula who examined the victim on 29th March 2025 and who had a history of being defiled by a person well known to her. On examination, the complainant could walk without assistance, had vaginal bruises, old hymenal tear and foul-smelling discharge. On laboratory examination urinalysis revealed presence of leucocytes, protein and pus cells. High Vaginal Swab revealed creamy, white, non-blood-stained discharge. There was no spermatozoa seen and all other tests were okay. He administered PEP, contraceptives and antibiotics. He later filled a PRC form and P3 form. He approximated the age of injury to be one day and the probable type of weapon to be a blunt object namely a penile tissue. On vaginal examination there was an old hymenal tear with regular edges, hyperemic and tender walls and an intact cervix. There was pain on touch showing that penetration had occurred. He produced the treatment notes, P3 form and PRC form as EXH 1, 2 and 4 respectively. 17.On cross-examination he testified that the victim was walking when she went to hospital. That there was no spermatozoa and there was an old hymenal tear meaning that the hymen was broken earlier. That he did not know what caused the hymenal tear but no DNA sampling was done. 18.In re-examination he testified that the girl was given a cloth to wipe herself and which could explain the absence of spermatozoa despite examination being done a day after. That an old hymenal tear did not preclude the fact that penetration occurred a day before. 19.PW5 was the investigating officer one Lilian Twalah who testified that on 28th March 2025 a case of defilement was minuted to her. The complainant was at the police station and the accused person had been arrested. She took the statement of the minor and appraised herself with circumstances surrounding the committal of the offence. That the complainant upon reporting the matter at the police station was taken to the hospital by one Sgt Charity and PC Kemboi. They went back home and the complainant was asked to take the officers to the accused person’s house where he was found and arrested. That the complainant identified the accused person. She ascertained the age of the victim through the birth certificate and established that the victim was born on 11th August 2015. She visited the scene and established that the accused person and complainant lived 10 to 15 meters apart. She also entered the accused person’s house and established that the accused person lived in a one roomed house partitioned using a curtain. 20.On cross-examination she testified that she did not find any cloth which the complainant had used to wipe herself and there were no stains on the complainant’s clothes. That the name of one Chris did not come up during investigations. She did not establish if parties had a dispute. That medical examination was done 28th March 2025 with some other tests being done on 29th March 2025. That there were no witnesses who saw the complainant going to the house of the accused person. 21.In re-examination she testified that according the minor she left the accused person’s house and continued to play. 22.This marked close of the prosecution’s case. Pursuant to a ruling delivered on 8th January 2026 the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. 23.He elected to give sworn evidence and call two witnesses. He at the hearing however called two additional witnesses. 24.He testified as DW1 and told the court that he is not Baba Pati and he did not have any child by that name. That he did not know the witnesses prior to the incident. That on the material date he was not at home as he had been called to repair a vehicle which had broken down and blocked the road at Amagoro. 25.On cross-examination he testified that he did not have anything showing that he worked with Safetracking company. That he has a wife and children and whose birth certificates he had not produced in court. That on the date of the incident he was in Uganda and his wife would ordinarily stay in Malava Kakamega. That he had neighbors where he lived and he did not have any neighbor in court as a witness. 26.There was no re-examination for this witness. 27.DW2 was one Christopher Otieno Odero and who testified that the accused person a mechanic was called to repair a motor vehicle which had stalled in Amagoro. That the accused person picked him from Malaba town at 1800hours thereabouts and they proceeded to Amagoro where they worked on the vehicle until 2000hours and parted ways at about 2045hours. 28.On cross-examination he testified that he does not know where the accused person was prior to them meeting. That he had records of the motor vehicle that they repaired but he did not avail them in court. 29.There was no re-examination for this witness. 30.DW3 was one Kevin Omoo who testified that on 28th March 2025 he was called by the complainant to proceed to Amagoro and he informed him that he was not nearby. He wondered what time the accused person was with the girl yet he was with him until 1400hours but he could not tell whether he went home after they parted ways. That he knew the accused person well and he did not have any child named Pati. 31.On cross-examination he testified that he did not know whether the accused person stays with his family but he knew that he had four children. He testified that he heard the accused person being called Baba Pati and later testified that he read the name in the court papers. That he did not know what transpired past 1400hours after they parted ways. 32.There was no re-examination for this witness. 33.DW4 was one Sharon Kate a neighbor to the accused person who told the court that he knew the accused person very well. That the accused person was rarely in his house and the earliest he would return was 2100hours. That the wife to the accused person would come on weekends and on 28th March 2025 he left and returned at 2100hours as usual. That he was not at home between 1600hours and 1700hours. 34.On cross-examination she testified that she was very close to the accused person. That she sells clothes outside their compound for a living and she is married and expectant. She confirmed that the complainant and the accused person are neighbors but they do not live in the same plot. That on the material date she went home at 1730hours as it was raining to unhang laundry from the line including those of the accused person. That he did not know the name of the accused person’s wife but he knew that the accused person did not have any child by the name Pati. That on the material date she did not see the victim in this case. 35.There was no re-examination for this witness. 36.PW5 was one Harrison Mgani a driver who testified that on 28th March 2025 he called the accused person to repair his motor vehicle which had been damaged. The accused person informed him that he was still in Uganda and showed up between 1800hours to 1820hours with one Otieno. 37.On cross-examination he confirmed that he works with Safetruck company and had been a driver for seven years. That he called the company which he works for to avail a mechanic. 38.There was no re-examination for this witness and this marked close of the defence case. 39.The prosecution sought to rely on the evidence on record with defence filing submissions for consideration by the court. The matter was mentioned on 8th June 2026 when Mr. Mondia defense counsel confirmed having filed submissions and the court reserved the matter for judgment on 30th July 2026. I have read and considered those submissions. Analysis and Determination 40.The offence with which the accused was charged is defined by section 8(1) of the Sexual Offences Act No. 3 of 2006, as follows: -Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.Three ingredients must be established for one to be convicted of defilement, which are:1.Age of the Complainant2.Proof of penetration3.Proof that the perpetrator of the offence was the Accused person.See Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013.On the element of age, it is trite that in sexual offences the age of the complainant is relevant for two purposes. Firstly, it is meant to prove that the complainant was below 18 years establishing the offence of defilement and secondly it establishes the age of the complainant for purposes of sentencing. (See Moses Nato Rapheal v Republic (2015) eKLR.) 41.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.” 42.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.” 43.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.” 44.In this case the complainant told the court that she was ten years old. Her grandmother testified as PW2 and told the court that her granddaughter was ten years old and she had a copy of her birth certificate in court which was marked as PMFI2. The investigating officer who testified as PW5 also told the court that in the course of her investigations she was able to ascertain the age of the minor by using a copy of birth certificate which showed that the victim was born on 11th August 2015 and produced a copy of that birth certificate as PEXH2. The evidence on age was not challenged. The offence is alleged to have been committed on 28th March 2025. Simple arithmetic would show that at the time of the offence the complainant was 9 years 7months. About 5 months shy the age of ten. Based on the foregoing, it is the finding of the court that age of the complainant has been proven by the prosecution. 45.On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 46.In this case, the complainant vividly described how the accused person called her to his house and how she was instructed to remove her clothes which she refused. She insisted that she wanted to go home but the accused person removed her clothes and pressed on her. That the accused person did bad manners by inserting what she referred to as his thing inside hers. She did this while pointing to her vagina. The evidence on record further reveals that the minor was taken to the hospital the same day but not all tests were done and she had to return the following day the 29th day of March 2025. The Clinical Officer told the court that on examination, she had vaginal bruises, an old hymenal tear and foul-smelling discharge. On laboratory examination urinalysis revealed presence of leucocytes, protein and pus cells. High Vaginal Swab revealed creamy, white, non-blood-stained discharge. There was no spermatozoa seen and all other tests were okay. He administered PEP, contraceptives and antibiotics. He later filled a PRC form and P3 form. He approximated the age of injury to be one day and the probable type of weapon to be a blunt object namely a penile tissue. On vaginal examination there was an old hymenal tear with regular edges, hyperemic and tender walls and an intact cervix. There was pain on touch showing that penetration had occurred. 47.In re-examination he clarified that while taking the history of the patient he established that the minor was given a cloth to wipe herself and which could explain the absence of spermatozoa despite examination being done a day after the alleged defilement. In any event, the ingredient to be proven in cases of defilement is penetration not ejaculation. That an old hymenal tear did not preclude the fact that penetration occurred a day before as per his findings. In any event, a hymenal tear is not always conclusive proof of penetration. With this clarification, the evidence of the clinical officer remained unchallenged by defence counsel. 48.This court is therefore satisfied that the ingredient of penetration was proven by the prosecution. 49.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”. 50.In this case the complainant identified the accused person as Baba Pati, an alias that the accused person subsequently disowned. The complainant testified that the accused person called her into his house where he defiled her. She further stated that the accused person was her neighbor but they did not reside within the same plot. This evidence was corroborated by DW4. 51.The complainant further testified that Baba Pati lived alone as Mama Pati had left with the children. In the court’s view, this was an intimate detail regarding the accused person’s domestic circumstances which the minor would not ordinarily have known unless she was indeed referring to the accused person. Significantly, the evidence that the accused person lived without his wife was corroborated by DW4, who described herself as the accused person’s immediate neighbor. 52.The complainant also gave a detailed description of the accused person’s house. She stated that it was a one room house illuminated by a candle and that she observed items used in repairing motor vehicles placed on the bed. This evidence lends credibility to her account. The accused person himself admitted that he was a mechanic and according to both parties this was their first encounter, the accused person having denied any prior interaction with the complainant. The Investigating Officer PW5 also visited the scene and confirmed that the accused person indeed resided in a one roomed house, thereby corroborating the complainant’s description of the scene. 53.The court has also considered the evidence of DW3. At one-point DW3 stated that he knew the accused person as Baba Pati but later retracted that evidence claiming that he had only read the name Baba Pati in the court proceedings. With respect, this explanation is not believable. DW3 was not a party to these proceedings and no evidence was tendered to demonstrate that he had sought or obtained access to the court file. Although court records are public documents, there is no indication that he requested to peruse the proceedings. His explanation therefore appears to be an afterthought. 54.The court has equally considered the evidence of DW2, DW4 and DW5. DW2 and DW5 did not tender any evidence regarding the names of the children of the accused person. DW4 told the court that the accused person did not have any child by the name Pati. No birth certificates or other documentary evidence was produced to prove those names. 55.The court also notes that the evidence of DW4 appears to have been a response to the prosecution’s cross-examination conducted on 12th February 2026, during which the accused person was questioned on whether he had any neighbor who could corroborate his evidence. This observation is reinforced by the fact that the defence from the onset and upon delivery of ruling on case to answer had indicated that it intended to call only three witnesses including the accused person yet the witness list was subsequently enlarged after several adjournments. While the defence was a liberty to call additional witnesses, this sequence of events affects the weight to be attached to the evidence of DW4. 56.The court further notes that although the defence sought to rebut the complainant’s identification of the accused person as Baba Pati by asserting that his children bore different names, the accused person’s wife who would have been the best placed to testify on the names of their children and the family’s circumstances was not called as a witness. No explanation was offered for her failure to testify. In the circumstances, the court draws an adverse inference that her evidence would not have supported the defence case. 57.Having carefully analyzed the totality of the evidence, the court is satisfied that the complainant positively identified the accused person as the perpetrator. Her evidence on identification was detailed, consistent and materially corroborated by independent evidence regarding the accused person’s residence, living arrangements and occupation. 58.The accused person raised the defence of alibi. The court has carefully considered the same alongside the prosecution evidence. 59.An alibi defence is intended to demonstrate that the accused person was elsewhere during the period when the offence is alleged to have been committed and therefore could not have participated in its commission. In the present case, the charge sheet indicates that the offence occurred at about 1800hours. The complainant likewise testified that the offence took place at about 1800hours. It was therefore incumbent upon the defence evidence to satisfactorily account for the accused person’s whereabouts during that material period. 60.DW2 testified that the accused person picked him at about 1800hours. However, he did not disclose where the accused person picked him from, nor did he account for the accused person’s whereabouts immediately before that time. He stated that they worked on a motor vehicle from 1800hours until about 1830hours before leaving for Malaba at 2000hours and arriving at 2045hours. DW2 also testified that he did not possess any identity card and testified that at the time the accused person picked him he was already at home. , 61.The court also notes that although DW2 was able to recall with remarkable precision the particulars of the motor vehicle allegedly repaired over one year earlier, he was unable to remember the clothes he had worn only a week before giving evidence. Further no documentary evidence such as a job card, repair report or any other record was produced to demonstrate that the alleged repair work was indeed undertaken. These factors diminish the credibility of his testimony. 62.DW3 testified that he parted ways with the accused person at about 1400hours. He was therefore unable to account for the accused person’s whereabouts after that time, including the material period of 1800hours when the offence is alleged to have occurred. 63.DW4 testified that she could account for the accused person’s whereabouts only between 1600hours and 1700hours. She also admitted that she was not at home throughout the period and stated that she returned home at about 1730hours. Consequently, her evidence equally fails to account for the accused person’s whereabouts at the material time. 64.DW5 testified that he contacted the company at about 1700hours requesting that a mechanic be availed. According to him, the accused person was in Uganda and arrived between 1800hours and 1820hours. His evidence not only provides an estimated window of arrival and does not conclusively place the accused person at the alleged scene of repair at 1800hours. His evidence further directly contradicted that of DW2 who testified that they had arrived in Amagoro and repaired the vehicle between 1800hours to 1830hours. 65.The court reiterates that the defence witness list was enlarged after several adjournments despite the defence having initially indicated that it intended to call only three witnesses. It is the court’s observation that the evidence of DW5 appeared to have been a response to the deficiencies exposed during the cross-examination of DW2. Dw2 was unable to satisfactorily establish the alleged repair work and as already stated no job card, repair report invoice or any record linking him to the alleged motor vehicle or demonstrating that the repairs were indeed undertaken. In those circumstances, the subsequent evidence of DW5, which sought to confirm that he had requested the services of a mechanic at the material time appears tailored to fill the evidentiary gaps left by DW2 rather than being an independent and spontaneous account. The court therefore approaches DW5s evidence with considerable caution and attaches limited weight to it. 66.The court further notes that the alibi defence was not raised at the earliest opportunity, nor was it put to the prosecution witnesses during cross-examination. Although an accused person is entitled to raise an alibi at any stage of the proceedings, the late disclosure denied the investigating officer, an opportunity to verify the alleged facts contemporaneously. This is a relevant consideration in assessing the credibility and weight to be attached to the defence. 67.Having considered the totality of the evidence, the court finds that the defence witnesses did not satisfactorily account for the accused person’s whereabouts during the material time when the offence was committed. Their evidence contains material gaps, inconsistencies and improbabilities and when weighed against the cogent and consistent prosecution evidence, the alibi appears to be an afterthought tailored to meet the prosecution case. The court therefore rejects the alibi as raising no reasonable doubt as to the accused person’s guilt. 68.I therefore find that the defence was not plausible, was unsupported by evidence and does not raise any reasonable doubt. I am satisfied that the prosecution proved its case to the required threshold of beyond reasonable doubt and the evidence of the prosecution witnesses was credible, consistent and uncontroverted. Accordingly, the accused person is convicted under Section 215 of the Criminal Procedure Code on the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 30TH DAY OF JULY, 2026.A.Z. OGANGERESIDENT MAGISTRATEIn the Presence ofMr. Mondia Counsel for the Accused PersonWekhanya David Kevin the Accused PersonMr. T. Rotich Prosecution CounselCourt Assistant: Paul Otieno