https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/440

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **SOA CASE NO. E054 OF 2025** **REPUBLIC……………………………………………………………..…..…..PROSECUTOR** VERSUS **RAJAB MASOLO…..………………..…………………….…………………….... ACCUSED** **JUDGMENT.** **Introduction and Evidence** 1. The accused person was presented before court for plea taking on 2nd December 2025 and charged with the offence of Committing an Indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The charge sheet was amended on the 11th day of December 2025 with the accused person being charged with the offence of Sexual Assault Contrary to Section 5(1)(a)(i)(2) of the Sexual Offences Act No. 3 of 2006. 2. The particulars are that the accused person on the 30th day of November 2025 at around 1500hours at uplands area in Teso North Sub-County within Busia County unlawfully caused his fingers to touch the vagina of A.A.K a child aged 3 years. 3. The accused person pleaded not guilty to the charges and he was admitted to Bond terms of Kshs. 200,000/= with surety of similar amount and the matter was set down for hearing. The matter proceeded in Kigisu and the prosecution called a total of 3 witnesses. 4. PW1 was one Z.M and mother to the complainant who testified that on 30th November 2025 she was at a salon when someone informed her that her child was playing with someone who was touching her inappropriately. She went where the child was and interrogated her and the child told her that she was being touched at “bededbede” and “bombom” which were terms they used to refer to buttocks and vagina. He enquired from the accused person whether he had gone to sell or play with children and the accused person responded that the children were going to him. That he followed the accused person until an area she referred to as Molo Matt and who overpowered him but through the assistance of boda boda riders and members of the public he was able to apprehend the accused person and they took him to the police station. That she did not know the lady who had informed her that her daughter was being touched inappropriately. That her child was born on 22nd December 2021 and she did not know the accused person who she saw for the first time on the material date. 1. On cross-examination she testified that she did not see the accused person touching the girl. That the accused person had not been framed and they did not have a dispute over business as she was seeing the accused person for the first time. That the child could speak for herself and it was not her testimony that the girl had been raped but it was her testimony that she had been touched. 2. There was no re-examination for this witness. 3. PW2 was the minor A.A who testified that she knew the orange seller and who touched her private parts while they were playing with him. That her mother chased him away. That she did not know the accused person. 4. On cross-examination she testified that when she was touched she had her clothes on and they were eating something at her mother’s house. That they were not at the market rather they were at her mother’s home with one Jayden. That the orange seller was at the road. There were people at the saloon and she did not scream she only told her mother. 5. In re-examination she testified that her mother’s home is near the road and her mother was at the salon. 6. PW3 was the investigating officer PC Lilian Twalah who testified that on 30th November 2025 at 1600hours the complainant and her mother went to Malaba Police Station together with an accused person who was arrested by members of the public. That the complainant informed her that she was playing with her friends when the accused person who was selling Lemon played with her and in the process carried her when touching her private parts. He mother saw this and called the complainant. A passerby also witnessed the incident and asked Z.M if the child was hers. The mother to the victim confronted the accused person who ran away. She raised alarm and the accused person was apprehended by members of the public. That she ascertained the age of the minor using a birth notification which she produced as Exhibit 1. 7. On cross-examination she testified that she was not among the members of the public but she knew what transpired from the statement of the complainant. That she interrogated the accused person who was arrested on 30th November 2025. That the accused person was neither remanded at the police station for one week nor assaulted by the Investigating Officer. 8. There was no re-examination for this witness. Pursuant to a ruling delivered on 14th May 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. 9. In defense he told the court that the mother of the child called her to buy oranges. That she had a stall and needed oranges which she wanted to resell. They disagreed over the modalities of sale and resale and he left. After a short distance he saw motor cycles following him and he was urged to run away but he insisted that he had not committed any offence. He was however chased and later apprehended on allegations that he had sexually assaulted the daughter of the complainant. That the evidence in court was false and he prayed for an acquittal. 10. On cross-examination he testified that he understands Kigisu and a little bit of Kiswahili and that the complainant speaks Bukusu. That he did not see any children that day and he was by the road. 11. This marked close of the defense case and the court reserved the matter for judgment. **Analysis and Determination** 1. I have carefully considered the evidence on record as well as the law applicable. Section 5 of the [*Sexual Offences Act*](https://new.kenyalaw.org/akn/ke/act/2006/3) provides as follows: ***“(1) Any person who unlawfully—*** ***(a)penetrates the genital organs of another person with—*** ***(i)any part of the body of another or that person; or*** ***(ii)an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;*** ***(b)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 other person’s body, is guilty of an offence termed sexual assault.*** ***(2)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life."*** 1. From the above provisions (section 5(1) (a) (i)), I gather that for the purposes of this case, the prosecution must prove the following elements: ***That there was unlawful penetration of the genital organ of the complainant herein;*** ***2.That the said penetration was done using a part of the body of the accused person;*** ***3.Positive identification of the accused person. The evidence of the prosecution must show that the accused person was positively identified as the person who committed the impugned act against the complainant.*** 1. Guided by the provisions of law cited hereinabove, the court proceeds to analyze the evidence as follows; the complainant in this matter testified that the accused person touched her private parts. She initially testified that the alleged offence occurred while she was at home and while she was with one Jayden, and during re-examination testified that her home was by the roadside. PW1 however testified that she was informed while at a salon that her daughter was being touched inappropriately by a person by the road side. Upon proceedings to the scene, she did not witness any inappropriate touching but instead pursued the accused person until ultimately with the help of boda boda riders, the accused person was apprehended. 2. The investigating officer’s testimony that the complainant’s mother witnessed the assault is not supported by PW1s own evidence. Further the Investigating Officer gave an account suggesting that the child was carried and touched. That version does not emerge from the evidence of either PW1 or the complainant. An investigating officer’s role is to present the outcome of investigations and not to introduce material facts unsupported by the witnesses who allegedly observed the incident. 3. The court also notes that according to the evidence, the alleged incident occurred during the afternoon at 1500hours by a roadside. While the location and time of day do not by themselves, render the allegations improbable, the prosecution did not call any independent witness or place before the court evidence demonstrating what investigative steps, if any were taken to identify person who may have been present or capable of corroborating the circumstances surrounding the alleged incident. The absence of such evidence does not automatically defeat the prosecution’s case but it is a factor the court may consider when assessing whether the evidence as a whole proves the charge beyond reasonable doubt. 4. The court had also considered the evidence relating to the identification of the accused person. The complainant when called upon to identify the accused person testified that she did not know the accused person who was before the court. The issue of identification was a central issue in this matter and the cumulative effect of the uncertainty surrounding the identification of the accused person leaves the court with reasonable doubt. 5. The accused person raised the defence that the complaint arose from a dispute concerning the sale and resale of oranges. The record shows that this issue was put to PW1 during cross-examination before the defence case. The court is therefore unable to regard the defence as a mere afterthought. Whether true or not, it forms part of the evidence to be weighed against the prosecution case. 6. Having considered the entirety of the evidence, the court finds that the inconsistencies regarding the circumstances of the alleged offence, the investigating officer’s account differing from those of the prosecution witnesses the absence of direct eyewitness testimony from PW1 and the failure by the complainant to identify the accused person create doubt as to the reliability of the prosecution case. The court cannot rule out the possibility that the complainant may have been subjected to inappropriate contact. However, the prosecution has not proved beyond reasonable doubt that the incident occurred in the circumstances alleged in the charge or that the accused person was the person responsible. Those doubts must be resolved in favor of the accused person. 7. The upshot of my findings is that the prosecution failed to prove the offence of Sexual Assault to the required threshold of beyond reasonable doubt and the accused person is acquitted under Section 215 of the Criminal Procedure Code. **JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 6TH DAY OF AUGUST, 2026.** In the Presence of Rajab Masolo the Accused Person Mr. Tony Rotich Prosecution Counsel Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 06.08.2026