https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/275

**REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **SOA CASE NO. 61 OF 2023** **REPUBLIC…………………………………………………………………..…..…..PROSECUTOR** VERSUS **EDWIN MALENYA…………………………………………….…………………….... ACCUSED** **JUDGMENT.** **Introduction and Evidence** 1. The accused person took plea at Busia Law Courts on 6th March 2023 on the charge of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on an unknown date and time at Malaba town in Teso North Sub-County within Busia County the accused person intentionally caused his penis to penetrate the vagina of A.A.M a female child aged 7 years who was to his knowledge his daughter. 1. 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. The particulars are that on unknown date and time at Malaba Town in Teso North Sub-County within Busia County, intentionally touched the vagina of A.A.M a child aged seven years with his penis. 2. The accused person pleaded not guilty to the charges and was admitted to Bond terms of Kshs. 500,000/= with surety of similar amount. Upon operationalization of this court, the matter was transferred for hearing and determination. The matter was fixed for hearing and the prosecution called a total of four witnesses. 3. PW1 was the minor A.A who gave unsworn evidence and testified that she lived with her father and siblings and she would sleep in the sitting room. She testified that her father touched her “down there” using his fingers when he was sleeping in the sitting room. She told him that it was painful and that no one had ever touched her in a similar manner. She stopped going to school as she was unwell and she passed blood in her urine. She was taken to hospital by one Mama Ken and examined. That her father touched her private parts which she uses to urinate. That there was a bulb on the material date which she used to see the accused person. That she was dressed on the material day and no one removed her clothes. 4. On cross-examination she testified that she did not know what her father does for a living but he would go to work in the morning and come back in the evening. That their house was a small house with two rooms, a sitting room and a kitchen. That her mother used to live in Kitale. That there is a day she urinated in a basin and her urine was not okay. That one Aunt Mercy showed her father the urine. That a neighbor one Mama Ken took her to hospital because the urine had blood. That she also went with her father and a scan was done but the doctor did not tell her what was wrong. That her father had not slept with her and nothing happened to her. 5. In re-examination she testified that she had never slept with her father and she did not know why she was urinating blood. She told the court that her father did bad manners to her. 6. PW2 was one D.N and mother to the complainant and who testified that her daughter was born on 7th November 2015. That in the year 2023 she was in Nairobi and her daughter was living in Malaba with her father, her brother and a house girl namely Mercy. That she was called by her father and informed that the girl had a stomach ache. That she was further called by a neighbor one Mama Bosco and informed that her daughter had been taken to hospital. She promised to travel the following morning and on arrival she was informed that the child had been taken by the Children’s Officer and that she could not see her because she would have interfered with evidence. Mama Bosco informed her that the child felt pain on her private parts. The house girl Mercy further informed her that the girl had blood in urine. That prior to leaving for Nairobi the girl had no problem. That she did not take her daughter to any hospital in Kitale due to any serious illness and that she had parted ways with the accused person and lived separately. 7. On cross-examination she testified that her husband is a clearing agent who would go to work at 1800hours and return at 0600hours. That the accused person would sleep in the bedroom and the victim slept in the sitting room. That the child was sick and the accused person informed her that she had a stomach ache and two weeks later she was informed that the victim had been treated. She did not witness anything but was simply informed about what had transpired. 8. In re-examination she testified that she was not present at the time of the incident and could not tell what had transpired. 9. PW3 was the clinical officer one Protus Okhonga Wafula who examined the minor on 23rd February 2026 who had a history of allegedly being defiled by her father on numerous occasions. On examination there was normal labia marjora and minora with an old hymenal tear and a normal vaginal wall and he made an impression of defilement. On laboratory examination, high vaginal swab revealed presence of pus cells and epithelial cells. An ultra sound scan was recommended but not done and pregnancy test was negative. A P3 form was filled with similar information. Probable type of weapon was a blunt object and that there were other causes of hymenal tear which he told the court ought to be proven by history of patient. That from her history she may have got an infection based on the alleged history of defilement. He produced a treatment book, P3 form and PRC form as PEXH 1, 2 and 3 respectively. 10. On cross-examination he confirmed that there were no injuries on the labias and the vaginal wall was normal at the time of examination. That there were no injuries to cervical wall, no bleeding hymen and posterior faucet to ending of vaginal introitus was not injured. That for there to be defilement those areas must be injured That not all patients who are defiled have cervical tears. That on 16th February 2023 the complainant complained about pain on passing urine, blood stained urine, frequent urination and lower abdominal pain giving an impression of haematolia. That a urinalysis was done showing signs of infection. 11. In re-examination he testified that there were no injuries on the cervical walls as the process of healing takes 72hours. 12. PW4 was the investigating officer one Asha Sidi who testified that on 24th December 2022 a case of defilement was reported at Kocholia Police Post by Directorate of Children’s Services. She perused the report and proceeded to Kocholia Hospital where the child had been admitted. She recorded the statement of the minor who told her that her father had told her that he would give her a laptop to watch and some money and called her to his bed when he inserted his finger inside her vagina. That whenever she felt pain the accused person would convince her on the guise of giving her money and a laptop. That this would happen severally. That the accused person convinced her and inserted his penis in her vagina and she felt pain. That neighbors noted the complainant dragging her feet and her dress had urine and they took her to hospital. She recorded statements of the neighbors and charged the accused person with the offences before court. She told the court that the minor was seven years and produced an age assessment form as Exhibit 4. 13. On cross-examination she testified that the incident occurred on 24th December 2023 and the child was defiled on an unknown date. That she did not know if the girl was being treated for Haematolia. She visited the scene but she neither accessed the house nor interrogated the siblings. She did not interrogate the aunt who would spend time with the minor during the day. 14. There was no re-examination for this witness. 15. This marked close of the prosecution’s case and pursuant to a ruling delivered on 16th October 2025 the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give sworn evidence and call two other witnesses. 16. The accused person testified as DW1 and told the court that the complainant was his child born on 7th November 2015. That he was arrested on 16th February 2023 while at work and on night shift. That on getting home he found his other child B.O had gone to school but the complainant was at home. He found urine in a basin and the nanny informed her that she did not pour it as it had blood. He informed his daughter’s school of this predicament and took the child for examination at Malaba Dispensary on 16th February 2023. That on 18th February 2023 he took her to hospital at Trans Nzoia Referral Hospital and medication was administered. That he came back to Malaba with her and she continued playing despite her private parts aching and pain on urination. One Esther and Mama Ken confronted him about the condition of his daughter and he told them that the girl was unwell. They offered to take her for treatment only to realize that it was a set up and he was arrested and charged with the offences before court. 17. On cross examination he confirmed that A.A was his child and that one Mercy would sleep in their house at night and leave in the morning. That in Kitale he was not informed the cause of the infection. That she was informed that the girl asked for Ksh. 50/= to disclose who had raped her. 18. In re-examination he testified that the treatment book produced in court is similar to that produced by the prosecution. 19. DW2 was one Mercy Simiyu and nanny to the victim at the time of the alleged incident. That the accused person used to work at night and the children would go to school during the day. That she was aware that what was in court was a rape case against the accused person but she did not witness such an incident. That the complainant had pain during urination and she left the urine in a basin for the accused person to see. That she was taken to hospital by her father and medication administered. That the charges before court are not true. 20. On cross-examination she testified that she stopped working for the accused person on the date of arrest. That on the material date, it was the first time that she had observed blood in the urine of the complainant. That the girl was complaining about feeling pain in her vagina. That there were no previous complains by the complainant. 21. There was no re-examination for this witness. The accused person despite being given numerous opportunities to avail a third witness failed to do so and closed its case at that juncture. Defense counsel was further granted leave to file submissions which at the time of writing this judgment had not been filed. The court reserved the matter for judgment on 9th July 2026. **Analysis and Determination** **Incest** 1. In [**MNM v Republic [2021] KEHC 1292 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/1292/eng%402021-12-17)the Court analyzed the ingredients necessary to prove the offence of incest as follows: 12. The offence of incest is stated in **Section 20(1) of the Sexual Offences Act** as:- **(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years, provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.** 13. The above provision by virtue of Section 21 of the same Act, apply **Mutatis Mutandis** with respect to any female person who commits an indecent act or act which causes penetration with a male person who is to her knowledge her son, father, grandson grand father, brother, nephew or uncle. 14. Consequently, the ingredients for the said offence, that is, Incest, are:- **a. Knowledge that the person is a relative and,** **b. Penetration or Indecent Act** 15. The Act proceeds to define penetration under Section 2 as means “*the partial”* or complete insertion *of the genital organs* of a person into the genital *organs, of another* and defines **Indecent act** to mean “any contact between any part of the body of a person with the genital organs, breast or buttocks of another but does not include an act that causes penetration.” 1. It is evident that for a conviction for the offence of incest to lie, the prosecution must prove two essential ingredients. The first is that the complainant is knowledge that the complainant is a relative within the degree of consanguinity contemplated under the law. 2. In the present case, there is no dispute as to the relationship between parties. Throughout the proceedings, the complainant consistently referred to the accused person as her father. Equally, the accused person in is defence acknowledged that the complainant is his biological daughter. The issue of knowledge that the victim was a relative has thus been resolved in the affirmative. 3. 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.”*** 1. In this case, PW1 did not testify that the accused person penetrated her genitalia. PW2, the complainant’s mother was not present during the alleged incident. She testified that she neither accompanied the victim for medical examination nor was she informed of the outcome of the examination. Consequently, her evidence was of little to no probative value. 2. PW4 the investigating officer, testified that penetration had occurred. However that testimony was not based on her personal knowledge and was not borne out of the complainant’s testimony. PW3 the clinical officer who examined the complainant, testified that his findings were consistent with penetration. However during cross-examination, he conceded that there were no injuries to the cervical wall, no bleeding and no injuries to the posterior faucet extending to the vaginal introitus. He further acknowledged that in the absence of such findings, there was no evidence of defilement. 3. The complainant further testified that she did not “sleep” with the accused person. Given that she was only seven years old at the time of her testimony, the court must exercise caution in interpreting the terminology she used. It is not clear what the complainant understood by the expression “sleep” or whether she intended it to denote sexual intercourse. This is particularly so because she also testified that her clothes were not removed during the incident. Her evidence must therefore be considered in the context of her age, level of understanding and the language she employed in describing events. 4. The court is alive to the fact that children of tender years may lack the vocabulary to accurately describe acts of sexual nature. Nevertheless, where the testimony of such a child is unclear or internally inconsistent on a material ingredient of the offence, the court must subject it to careful scrutiny and look for corroborative or other supporting evidence. 5. Having carefully considered the totality of the evidence, I am not satisfied that the prosecution proved the ingredient of penetration beyond reasonable doubt. **Committing an Indecent Act with a child** 1. The particulars of the charge allege that the accused person touched the complainant’s vagina with his penis. It was therefore incumbent upon the prosecution to prove that allegation beyond reasonable doubt. 2. Upon evaluating the evidence on record, the complainant did not testify that the accused touched her vagina with his penis. Rather her evidence was that the accused person inserted his finger into her vagina. Notably, this evidence was not controverted by way of cross-examination. The court must therefore determine whether this variance is one that can be overlooked as a curable defect or whether it is so material as to prejudice the accused person’s right to fair trial. 3. It is a settled principle that not every defect or variance in a charge renders a conviction unsafe. The court must consider whether the accused person understood the nature of the allegation he was required to answer and whether the variance occasioned a failure of justice. In undertaking that inquiry, the court considers the charge, the evidence adduced, the defence advanced and the proceedings as a whole. 4. In the present case, this court is satisfied that the variance between the particulars where it is alleged that the accused person touched the vagina of the complainant with his penis and the evidence presented in court being that the accused inserted his finger into the vagina is not material and did not prejudice the accused person in any manner. 5. The record shows that the charge was read and explained to the accused person in a language that he understood, whereupon he pleaded not guilty. Throughout the trial, he was represented by learned counsel who actively participated in the proceedings and extensively cross-examined the prosecution witnesses. There is nothing on record to suggest that the accused person was unaware of the nature of the allegations against him or that he was denied an opportunity to challenge the prosecution’s case. 6. The complainant, though of tender years gave a clear and coherent account of events. The court had an opportunity to observe her demeanor and found her to be a truthful and candid witness. She was able to distinguish between the different parts of the body and consistently maintained that the accused person inserted his finger into her vagina. The court is satisfied that her testimony was not the product of confusion or imagination but was an honest account of what she experienced. 7. In so holding I am guided by the Supreme Court of India in***Willie (William) Slaney v State of Madhya Pradesh* [A.I.R. 1956 Madras Weekly Notes 391]**, held that:- ***“Whatever the irregularity, it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in the labyrinth of insubstantial technicalities.”*** 1. Further in The Court of Appeal in **Omollo v Republic (Criminal Appeal 61 of 2021)[2023] KECA 1134 (KLR) (22 September 2023) (Judgment) Neutral citation: [2023] KECA 1134 (KLR)** in upholding the decision of the High Court held as follows:- ***The Judge re-analyzed the evidence of each of the children and reached the following position:*** ***“In count 1 however, the evidence did not prove that this was the case. PW1 was candid that the Appellant only touched her genitals with his hand which only establishes an offence under Section 5(b) of the Sexual Offences Act. The same reads;*** ***Any person who unlawfully Manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the person’s body, Is guilty of an offence sexual assault.*** ***The penalty for the offence of sexual assault is provided under sub section (2) which is imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.*** ***I then ask, was the alternative charge of committing an indecent act with a child proved?*** ***The same is provided for under Section 11(1) of the Sexual Offences Act as follows;*** ***“any unlawful intentional act which causes a. any contact between the genital organs of a person, his or her breasts and buttocks with that of another person;*** ***b. exposure or display of any pornographic material to any person against his or her will, but does not include an act which causes penetration.”*** ***In the respect of PW7 the Appellant had contact with her genitalia with his hand. The definition of genital organ in the Sexual Offences Act:*** ***includes the whole or part of male or female genital organs.”*** 1. The court in circumstances akin to this one concluded as follows, ***“ The Judge applied those powers and in respect of Counts 2 and 4 substituted the convictions for the offence of an indecent act with a child under section 11(1) of the***[***Sexual Offences Act***](https://kenyalaw.org/akn/ke/act/2006/3)***with convictions for the offence of defilement under section 8(1) as read with section 8(2) of the said Act. The Judge, in respect of counts 1 and 3 substituted the offence of indecent act with the offence of sexual assault under section 5(b) of the said Act. The Judge had power to correct errors committed by the trial magistrate and convict for offences that were proved as found by the Judge. It was not necessary in these circumstances to give any warning to the appellant at all that he may suffer a stiffer sentence. The convictions were founded upon the evidence and we see no merit in the complaint by the appellant in the way the first appeal was conducted or the findings made. There is no merit in this appeal which we accordingly dismiss.”*** 2. Her account was, to the extent permissible supported by the evidence of the investigating officer regarding the complaint that was reported an investigate. The defense raised an issue regarding the date of the accused person’s arrest. Upon evaluating the evidence, the court notes that the investigating officer referred to a date in December 2023. However, the record is clear that the accused person was arrested on 24th February 2023. 3. The inconsistency in the investigating officer’s testimony relates only to the date sand does not go to the substance of the prosecution’s case. The court takes judicial notice that human memory is not infallible and that witnesses may, from time to time err in the recalling dates, particularly where they are testifying long after the occurrence of the events. Such an error, without more, does not render the witness unreliable nor does it vitiate the prosecution’s case. 4. In the present case, the correct dates are borne out by the court record. The discrepancy did not occasion any prejudice to the accused person. I therefore find that inconsistency to be a minor discrepancy attributable to lapse of memory which is not fatal to the prosecution’s case. 5. The defense also challenged the prosecution’s case on the basis of the time the alleged incident occurred contending that the accused person had already left for work. The court has carefully considered this argument. The complainant was only seven years old at the time of the incident. It is common knowledge that children of such tender years generally do not have an accurate appreciation of time unless it is linked to a specific event or routine. Consequently, any uncertainty in her testimony regarding the precise time of the incident does not render her evidence unreliable. 6. In so holding, I am guided by the case of **Miller v Minister Pensions (1974)2All ER 372** where it was held that, ***“the law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt….”*** 7. Further, the accused person called DW2, the nanny, who testified that the accused person had left for work. However, upon cross-examination, DW2 conceded that she was not with the accused person at every waking moment and could not account for all his whereabouts. Her testimony was therefore insufficient to conclusively establish that the accused could not have committed the offence at the time alleged. **Conclusion** 1. The upshot of my findings therefore is that: - 2. ***The prosecution failed to prove the main count of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006 against the accused person and he is acquitted under Section 215 of the Criminal Procedure Code.*** 3. ***The offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offence Act is substituted with the offence of Sexual Assault contrary to Section 5(1)(b) as read with section 5 (2) of the Sexual Offences Act and the which was proven against the accused person to the required threshold of beyond reasonable doubt and he is convicted under section 215 of the Criminal Procedure Code.*** **JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 9TH DAY OF JULY, 2026.** In the Presence of Edwin Malenya the accused person Mr. Rotich Prosecution Counsel Court Assistant: Brenda Ochieng’ **A.Z. OGANGE** **RESIDENT MAGISTRATE** 09.07.2026