https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/269

Republic v Mohamed (Sexual Offence E003 of 2025) [2026] KEMC 269 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEMC 269 (KLR) Republic of Kenya In the Lamu Law Courts Sexual Offence E003 of 2025 FM Mulama, RM June 30, 2026 Between Republic Prosecutor and Saad Mohamed Accused Ruling A. Background. 1.Saad Mohamed is charged with the offence of attempted defilement contrary to section 9 of the Sexual offences Act No.3 of 2006. 2.The particulars of the offence were that on 29/9/2025 at around 0700hours at [particulars withheld] the accused intentionally attempted to cause his penis to penetrate the vagina of MS a child of 10years. 3.5 witnesses were called by the state to prove the case against the accused and closed its case and the court is now being called to make a determination whether the state has proved a prima facie case to warrant the accused being put to his defence. Prosecution’s case 4.It is the case by the state through Pw 1 the victim’s biological father who stated that the victim MS sometimes in December 2025 while at work MS came and told him that the accused wanted to grab her hand and take her to his house but someone came and when he saw the person the accused went away. He went and reported the matter to the police and accompanied the child to hospital for examination. He ended his testimony by stating that this was the 2nd time it is happening and that the 1st time the mother reported the incident. 5.Pw 2 the victim MS stated that one day while playing with Z at 7pm in their house the accused came and told her that he was Z’s uncle and that they should lick his penis while at the sitting room but they refused and rushed to their mothers and the following day while she had been sent to buy chapati she came back with the chapati as she was sent and was again sent to the shop and on the way the accused grabbed her hand and asked him to follow him and another man came and told the accused to let the victim alone since she was a child and she went and reported the matter to her mother. 6.She went ahead and stated that on the 3rd day she went to sleep at her aunt’s place as her mother had gone to Mombasa for funeral and on that day as she went to pick her uniform the accused called her again but she did not go and she went to school and in the evening, she informed her father what happened and she was examined by the doctor and recorded her statement. She concluded her testimony by stating that the accused never touched her anywhere. 7.Pw 3 Dr. Athman Aboud examined the victim medically and all was well. Tests were conducted and a p3 filled. He produced the P3 and treatment notes as exhibits. From his examination, the genitalia was normal, labia majora and minora and clitoris appeared normal with no bruises no laceration and the hymen was intact. He concluded that there were no obvious signs of penetration. 8.Pw 4 the victim’s mother stated that on 1/10/2025 she sent the victim to buy chapati from a neighbour and when she came back she was panting and upon asking what the issue was the victim informed her that the accused had grabbed her hand and asked her to follow him to a nearby house but she refused and escaped and came to report. She did not report the incident since the day she was to report she was bereaved and had to travel and told the father to go and report. B. Issue For Determination. 9.This court has identified one issue for determination. a. Whether the prosecution has established a case to warrant the accused being placed on his defence. C. Analysis And Determination. 10.At this stage of the proceedings I am cautious that the standard of proof required is not that of beyond reasonable doubt as the court has not had the advantage of hearing the defence. 11.It is important to note however, that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. 12.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. 13.My simple understanding is that the evidence on record should support and prove the charge facing the accused person. 14.It therefore follows that at this juncture, the evidence so far on record should support the charge and prompt the accused to offer and explanation to defence. I shall therefore determine whether the evidence on record is sufficient to prompt any defence. 15.According to Black’s Law Dictionary, Bryan A. Garner, ed. Tenth Edition, attempt in criminal law refers to: -An overt act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offence distinct from the intended crime. 16.Section 388 of the Penal Code defines attempt in the following terms:(1)Where a person intending to commit an offence begins to put his intentions into execution by means adopted to its fulfilment manifests his intentions by some avert act but does not fulfil his intentions to such an extent as to commit the offence, he is deemed to attempt to commit an offence.(2)It is immaterial except so far as regards punishment whether the offender does all that of necessary on his part for completing the commission of the offence or whether the complete is prevented by circumstances independent of his will or whether he desists of his own motion from further prosecution of his intention.(3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. 17.Therefore, the essence of attempted crime is; an overt act done- actus reus; and with the intent to commit a crime- mens rea. 18.The overt act or acts manifests the intention to commit the crime. Therefore, the overt act or a chain of acts done with the intent to commit a crime should not be too remote to the intended crime. In other words, the actus reus must be more than mere preparation to commit a crime. See the case of Abdi Ali Bere – vs – Republic (2015) eKLR. 19.Attempted defilement is established in Section 9(1) of Sexual Offences Act: a person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement. 20.The prosecution in an offence of attempted defilement must therefore prove the other ingredients of the offence of defilement except penetration; it must therefore prove the age of the complainant, positive identification of the accused, and then prove steps taken by the accused to execute the defilement which did not succeed. Attempted defilement is as if were a failed defilement, failed because there was no penetration. 21.From the totality of the evidence, the age of the victim was not proved nor even the parents Pw 1 and 4 could remember the age of the victim let alone providing a copy of the birth certificate. 22.On identification, no dispute arose as to the accused’s identity. The victim was able to state that it is the accused who asked her and Z to lick his penis and this happened in a sitting room. She was also able to see him clearly and no indications in cross examination were apparent that the issue of identification was in issue and as such I find that the accused was properly identified by the victim. 23.However, this court still retains the duty to ascertain whether the accused took any steps to execute the act of defilement but he was unsuccessful in his quest. 24.Before I delve into that which in my view is the crux of the matter, allow me address the issue of dates of the offence that arose during the hearing of the prosecution’s case. It was the evidence of Pw 1 that the incident happened sometimes in December 2025 the victim went and informed him that the accused had wanted to grab her hand and take her to his house. 25.According to Pw 1 this was the 2nd occurrence the 1st one having been reported by the mother. Upon being cross examined while speaking with both sides of his mouth stated that he could not remember the date of the incident and also that the incident was reported to him in January 2025 and that he was not aware that in his statement to the police he wrote 1/10/2025. 26.The victim on her part remembered that it was at 7pm in the evening when he was playing with Z when the accused came and asked both of them to lick his penis. They refused and rushed out and reported to their mothers. The following day she was sent to buy chapati by Pw 4 and that is when the accused grabbed her hand and asked him to follow him to his house. The 3rd day she went to her aunt’s place as the mother had travelled for a funeral in Mombasa and the accused again called him and she refused and went to school and that day she informed the father that the accused had called her but did not hold her hand. She asserted in concluding her examination that the accused never touched her anywhere. This is important as shall be apparent when I discuss the issue of actus reus. 27.Pw 4 on her part stated that the incident happened on 1/10/2025 when she sent the victim to buy chapati and came back panting and upon interrogation she stated that the accused had grabbed her hand and asked her to follow him to the nearby house. 28.She was to report the matter to the police on some date which she didn’t tell the court but it was not possible as she was forced to travel to Mtwapa Mombasa to attend her uncle’s burial. On that date that she travelled Pw 1 called her and sought to know why such incidents have been happening and she does not inform him and thereafter the victim’s father went to report the matter to the police. 29.Upto this point the court is at a loss as to what exactly which date this incident refers to. There are several incidences that are said to have happened though Pw 1 states it is the second time, the victim and Pw 4 speak of 3 instances, 2 of them having happened on the same day; the first when she was with Zu and the other one when she was sent to the shop by the mother after delivering the chapati. It should also not be lost on us that the evidence of Pw 4 is that the incident happened while the victim was sent to buy chapati. 30.That said and done, the charge sheet does not make things any better. The charge sheet speaks of 29/9/2025 at 0700hours and when Pw 4 was asked about this date, she indicated that the police wrote their own things to quote her exact words and disagreed with those dates and maintained that the incident happened on 1/10/2025 at 7pm and that even the 2nd incident happened on 3/10/2025. 31.Despite all these confusion in dates and time, the prosecution while re examining the relevant witnesses who spoke of the dates to wit Pw 1, the victim and Pw 4 did very little to clarify and make it clear which date which exact incident happened. 32.This is despite Pw4 who was the first to be reported to the incident having denied the date in the charge sheet and even saying the police “wrote their own things” and that the incident happened at 7pm. 33.A look at the charge that the accused faces speak of the events of 29th September 2025 at 0700hours and not 1/10/2025. I have no doubt to doubt the date of the incident as stated by Pw 4 since she remembers it vividly having been occurred on 1/10/2025 and she had to postpone the reporting the incident the following day as she was bereaved. I genuinely believe her as matters death in our African culture, we seem to be remembering the date, time and manner of death of our beloved ones and this being the case, she was as sure as death is as to when the incident occurred. 34.The right to fair hearing is unlimited as provided for in the constitution and as recently reiterated in the case of the impeachment of the former deputy president Rigathi Gachagua. The right to fair hearing has many facets to it but that relevant to this case is that the accused is article 50(b)and (k). These 2 direct that the accused be informed of the charge, with sufficient detail to answer it and to adduce and challenge evidence. 35.I take the view that Article 50(b) and (k) are like Siamese twins. They are inseparable in this sense; for an accused person to adduce and challenge any evidence against him, the accused has to be first informed of the charge and with sufficient details to answer it(emphasis mine). 36.From the analysis I have given above, even the court is not clear in its mind which incident the accused is to defend himself against. Pw 4 denied ever making a report concerning incidences for which the accused is charged with in the charge sheet and for the risk of repeating myself a third time but for the benefit of clarity stated that “the police wrote their own things” for context this was with refence to the date in the charge sheet. Again, no clarification was sought by the prosecution in reexamination. 37.It is therefore very difficult to expect the accused person to mount any proper defence when the particulars in the charge sheet are denied by the witnesses themselves and the evidence on record does not support the charge preferred. The evidence of the prosecution witnesses as to the date and time of the incidences is contradictory as discussed above. 38.I do therefore find that the evidence on record does not support the charge facing the accused person. 39.Be that as it may, it was the duty of the prosecution to prove that an overt act was done- actus reus; and with the intent to commit a crime- mens rea. The victim in her testimony, spoke of 2 incidences in examination in chief which Pw1 and 4 never talked about. The first one that that only the victim spoke about was that while they were with Zu the accused asked them to lick his penis but they refused and ran out of the house and they went and informed their respective mothers. 40.The following day and this is the incident that Pw 4 and 1 are making reference to in their testimonies although while Pw 4 contradicting everyone else including the victim that she was sent to buy chapati which she did and thereafter Pw 4 sent her again to the shop and this is the time when the accused grabbed her hand and asked her to follow her to a nearby house but this did not materialize as another person came and asked the accused to let the victim to go as she is a minor. She stated that on the 3rd day(the court still wonders the 3rd day to which date and I believe it is the same question the accused and his counsel are also asking) she went to her aunt’s house to pick her uniform and the accused again called her but again she refused. 41.The victim concluded her testimony by stating that the accused never held her hand and that he never touched her anywhere. 42.From the totality of the evidence of the victim, I do not find her trustworthy as she seems to be telling different people and indeed the court different stories over the same incident. In the concluding part of her testimony and cross examination she was emphatic that the accused never touched her anywhere and never did anything to her. 43.From her own admission that the accused only called her and never touched her, she did not tell us what the accused told her when he called her in order for the court to draw an inference what the intentions of the accused were. It is therefore doubtful that the accused did an overt act to insinuate that he had any intention of attempting to defile the victim. Similarly, there is no evidence to suggest that the accused had the intention to commit the said offence. 44.It has been held by the high court that an attempted defilement is as if there was a failed defilement and it failed because there was no penetration. From the evidence and especially that of Pw 1 to whom related questions were asked, it was clear that the accused never removed or attempted to remove the clothes of the victim or made her lie on the ground or any surface. This therefore follows that for the purpose of actus reus the accused was expected to have done something that would suggest he had the intention to penetrate the victim but it failed. 45.The evidence on record does not in any way as explained suggest that the accused did anything to suggest that he had the intentions of defiling the victim. As stated that for there to be a determination by the court that there was a failed penetration, an attempt to access the vagina of the victim ought to have been apparent. 46.It would be absurd and a sad day in the republic and indeed Lamu for this court to find that a mere holding of one’s hand as suggested by this case without any other evidence would amount to an attempted defilement. 47.Since court on the available evidence by the prosecution is unable to make out what the prosecution’s case is all about, it will definitely be an uphill task for the accused to prepare for his defence. The contractions I have pointed out are not mere or inconsequential contradictions as they go to the substratum of the charges facing the accused. 48.Having carefully read and analyzed the testimonies by all the prosecution coupled by the finding that the victim was not truthful in her testimony, it is now clear that there are a lot of contradictions that I have pointed out and which have the effect of creating doubts in the case by the prosecution. I find and hold in similar terms. 49.The accused is always the favourite child of the law and all legal compliances must be done with some form of precision, anything short of that, he must benefit from those doubts and contradiction with an acquittal. D. Conclusion And Disposition. 50.It is therefore my finding and I so hold that the prosecution has failed to establish a prima facie case in the sole charge facing the accused to warrant the accused person being place on his defence. 51.Consequently, the accused person is found to have no case to answer, the case by the prosecution is dismissed and he is as of necessity acquitted under section 210 of the CPC. 52.Right of appeal 14 days. 53.Those shall be the orders of the court. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS 30TH DAY OF JUNE 2026.F.M. MULAMARESIDENT MAGISTRATEIn the presence of:Court Assistant:- Abuswaleh.Idriss Tomno for DPP.Mr. Soita for the accused.Saad Mohamed