https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/427

Republic v Muindi (Sexual Offence E079 of 2022) [2026] KEMC 427 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEMC 427 (KLR) Republic of Kenya In the Makindu Law Courts Sexual Offence E079 of 2022 YA Shikanda, SPM July 30, 2026 Between Republic Prosecution and James Mulei Muindi Accused Judgment The Charge 1.James Mulei Muindi (hereinafter referred to as the accused person) is charged with the offence of defilement as well as an alternative charge of committing an indecent act with a child. In the main count, the accused person is charged with the offence of defilement contrary to section 8(1) as read with 8(2) (it ought to be 8(3)) of the Sexual Offences Act. The particulars of the offence are that on 5/11/2022 at [Particulars withheld] village, [Particulars withheld]Sub-county within Makueni County, the accused person intentionally and unlawfully caused his penis to penetrate the vagina of HSM (name withheld), a child aged 12 years. The accused person is alternatively charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence are that on the same day and at the same area, the accused person intentionally and unlawfully touched the vagina of HSM aged 12 years wish his penis. When the plea was taken, the accused person pleaded not guilty to both counts. The matter was then set down for hearing. The Evidence The Prosecution Case 2.The prosecution case was partly heard by another Magistrate who was subsequently transferred. Upon taking directions under section 200(3) of the Criminal Procedure Code, the matter proceeded from where it had reached. The prosecution called a total of four (4) witnesses in a bid to prove its case against the accused person. PW 1 HS (name withheld and hereinafter referred to as the complainant) testified on oath after a voire dire examination was conducted by the court. Her testimony was that she knew the accused person and that she saw him the day he defiled her. I am not sure whether the minor used the legal term “defile” or whether it was the trial court’s rendition of what the complainant stated. The complainant stated that the incident occurred in May, 2022. 3.That she had been sent by her mother to a certain woman at about 2:00 pm. That she met the accused person at the gate whereupon the accused person grabbed her and dragged her to the bush. The complainant stated that the accused person covered or tied her mouth with a handkerchief. That the accused person lifted her shirt and touched her breasts then removed her trouser and panty. The complainant stated that the accused person laid her down and held her legs. That he removed his trouser and underwear then inserted his penis into the complainant’s vagina. When the accused person was done, the complainant put on her clothes then ran home. On the way, she met her grandmother or uncle (record is not clear on this) who carried the complainant on a motor cycle and took her home. 4.The complainant stated that she was taken to the police station and to hospital where she was treated. That the following day while coming from the hospital, she saw the accused person and pointed him out to her mother. PW 2 BMP (name withheld) testified that the complainant was her daughter. The witness stated that on 5/11/2022 she sent the complainant in the neighbourhood. Later, the complainant’s uncle called her and when she went there, she saw the complainant who was bleeding from her vagina. Upon inquiry, the complainant narrated what had happened to her. The mother took the complainant to the police and to hospital. That on the way from hospital, the complainant pointed out the accused person as the one who had defiled her. 5.PW 3 Daniel Mutune testified that he was a clinical officer. That on 5/11/2022 the complainant was taken to Sultan Hamud Sub-county hospital and when she was examined, it was revealed that she had blood clots on the outer genitalia and her hymen was freshly broken. That there were lacerations on the vagina as well as blood therein. The witness produced the medical documents in evidence. PW 4 Police Constable Salome Nazi testified that she took over the police file on 27/11/2024. The witness produced in evidence the age assessment report in respect of the complainant and blood stained clothes. The Defence Case 6.When the accused person was placed on his defence, he opted to give a sworn testimony without calling any other witness. The accused person testified that on 5/11/2022 he left home at 6:00 am and travelled to Emali. That he returned home at about 7:00 pm. The following day, he went to the market and heard that the complainant had been defiled. The following day, the accused person heard that the child’s father had claimed that he was the one who had defiled the complainant. The accused person stated that the child’s father was his cousin. That their families have had a long standing grudge. The accused person was later arrested. The accused person stated that he was framed up so that the complainant’s family could take his cattle. He denied having committed the offence. Main Issues For Determination 7.Having considered the nature of the charges and the evidence on record, I find that the main issues for determination are as follows:a.Whether the complainant was defiled on 5/11/2022;b.If so, whether it was the accused person who defiled the complainant;c.If not, whether an indecent act was committed against the complainant on the aforementioned date;d.If so, whether such indecent act was committed by the accused person;e.Whether the prosecution has proven its case against the accused person to the required standard. Analysis And Determination 8.I have carefully considered the evidence on record as well as the law applicable. Section 8 (1) of the Sexual Offences Act provides as follows:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement". 9.Section 2 of the Sexual Offences Act defines the term “penetration” as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The same section refers to the definition of a child as provided for under the Children Act. Section 2 of the Children Act defines a child as an individual who has not attained the age of eighteen years. From the above provisions, I gather that the key ingredients of the offence of defilement are as follows:1.The accused person must have committed an act which causes the partial or complete insertion of his or another person's genital organ into the genital organ of another person or the accused person's genital organ. My understanding of the law is that it does not matter who inserts, what matters is who causes the insertion. For instance, a woman who causes a male child to insert his penis into her vagina may be guilty of defilement if all the key ingredients are satisfied. In a nutshell, the prosecution must prove penetration;2.The alleged victim must be below the age of eighteen years. The prosecution must prove that the alleged victim was below the age of eighteen years at the time of incident, that is, proof of age;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 child. 10.My view is buttressed by the authority of Dominic Kibet Mwareng v Republic [2013] eKLR where the High Court observed thus:“The critical ingredients forming the offence of defilement are; the age of the complainant, proof of penetration and positive identification of the assailant". 11.Similarly, in the case of C.W.K v Republic [2015] eKLR, Kimaru J (as he then was) held that for the prosecution to sustain the charge of defilement, the prosecution must establish penetration, the perpetrator of the offence and the age of the victim. Age 12.The particulars of the offence indicate that the complainant was aged twelve (12) years old at the time of incident. In the case of Moses Nato Raphael v Republic [2015] eKLR, the Court of Appeal pronounced itself thus:“On the challenge posed by the uncertainty in the complainant’s age, this Court had occasion to deal with a similar issue in Tumaini Maasai Mwanya v. R, Mombasa CR.A. No. 364 of 2010, where we held that proof of age for purposes of establishing the offence of defilement which is committed when the victim is under the age of 18 years should not be confused with proof of age for purposes of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. As long as there is evidence that the victim is below 18years, the offence of defilement will be established. The age, which is actually the apparent age, only comes into play when it comes to sentencing. The contradictions in respect of the child’s age cannot therefore assist the appellant to avoid criminal culpability". 13.In Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, it was held that:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense". 14.In view of the foregoing, it cannot be said that age for purposes of sexual offences can only be proved by documentary or medical evidence. The prosecution produced in evidence an age assessment report dated 7/11/2022. The same indicates that the complainant was aged between 12 and 13 years old. I did not take the testimony of the complainant and as such, I did not get the chance to observe her. The complainant testified on 1/8/2023 and indicated that she was born in 2010. He mother testified that the complainant was born on 30/4/2010. From the evidence on record, it would appear that as at the time of the alleged offence, the complainant was between 12 and 13 years old. In cases of defilement, as far as age is concerned, all that the prosecution needs to prove is that the alleged victim was below the age of eighteen years at the time of offence. However, proof of age must be beyond reasonable doubt since age is a key ingredient of the offence. In the case of Kaingu Elias Kasono v Republic Criminal Appeal No. 54 of 2010, the Court of Appeal sitting at Malindi held as follows“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved in the same way as penetration in cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent on the age of the victim” 15.There is no contrary evidence to dispute the fact that the complainant was below the age of 18 years as at the time of the alleged offence. I have no reason to doubt it. Penetration 16.The only direct evidence in respect of the offence is that of the complainant herself. The record indicates that the complainant gave sworn testimony after the court conducted a voire dire examination and the court found that he understood the importance of an oath. Section 124 of the Evidence Act provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth." 17.Section 19 of the Oaths and Statutory Declarations Act is concerned with the reception and admissibility of evidence of a child of tender years. The section starts by declaring that where the child does not, in the opinion of the court understand the nature of an oath, his evidence may nonetheless be received though not given upon oath, but that evidence shall only be received if, again in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and also if, the child understands the duty of speaking the truth. 18.The question of who is a child of tender years for purposes of evidence was settled by the Court of Appeal. In the case of Maripett Loonkomok v Republic [2016] eKLR, the Court of Appeal held as follows:“The question therefore is, who is a child of tender years? The Sexual Offences Act and the Oaths and Statutory Declarations Act are silent on this question. However way back in 1959 in the celebrated case of Kibageny Arap Kolil v R (1959) EA 82 the Court of Appeal for Eastern Africa held that the phrase “a child of tender years” meant a child under the age of 14 years. The only statutory definition of a “child of tender years” is section 2 of the Children Act where it is defined to mean a child under the age of 10 years. This Court has recently in Patrick Kathurima v R,Criminal Appeal No.137 of 2014 and in Samuel Warui Karimi v R Criminal Appeal No.16 of 2014 stated categorically that the definition in the Children Act is not of general application; that it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify. It follows therefore that the time-honoured 14 years remains the correct threshold for voir dire examination." 19.In the authority of Fransisio Matovu v Republic [1961] E.A 260, it was held, inter alia that:“(I)the trial magistrate should question the child to ascertain whether the child understands the oath and;(2)If the court does not allow it and not to be sworn, it should record whether or not in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of evidence and understands the duty of speaking the truth.” 20.However, in the authority of Maripett Loonkomok (supra), the Court of Appeal held that mere failure to conduct a voire dire examination does not vitiate the trial. The complainant herein gave sworn testimony. Her evidence does not therefore fall under the ambit of section 124 of the Evidence Act. This implies that the requirement of corroboration or giving reasons as to why the trial court was satisfied that the minor was telling the truth does not arise. I am guided by the authority of Johnson Muiruri v Republic [1983] KLR 445, in which the Court of Appeal held that:“In our view corroboration of evidence of a child of tender years is only necessary where such a child gives unsworn evidence”. 21.The court however added that in such circumstances, the trial court should warn itself that it would be unsafe to convict without corroboration. Similarly, in the case of Kibageny Arap Kolil v R [1959] EA 82, the Court of Appeal for Eastern Africa held that:“But even where the evidence of a child of tender years is sworn (affirmed) then although there is no necessity for its corroboration as a matter of law, a court ought not to convict upon it if uncorroborated without warning itself and the assessors if any of the danger of doing so..........In short we are of the view that, in law, evidence of a child of tender years given on oath after voire-dire examination requires no corroboration but the court must warn itself that it should in practice not base a conviction on it without looking for and finding corroboration for it." 22.The proviso to section 124 of the Evidence Act makes an exception for the requirement of corroboration of unsworn testimony of a child of tender years in criminal proceedings involving sexual offences where the only evidence is that of the alleged victim. The provision empowers the court to convict an accused person if, for reasons to be recorded, the court is satisfied that the alleged victim is telling the truth. In my considered view, one of the main reasons as to why a court would be satisfied that the alleged victim is telling the truth is the presence of corroborative evidence. Whether the testimony of the alleged victim of tender years is given on oath or not, the court must of necessity exercise great caution before convicting an accused person. 23.The question as to whether there is corroborative evidence becomes paramount. I say so because, in criminal proceedings, it is the duty of the prosecution to prove its case against the accused person beyond reasonable doubt. In view of the foregoing, I hereby warn myself that although the complainant herein gave evidence on oath, it would be unsafe to convict the accused in the absence of corroborative evidence. I will seek to be satisfied that indeed, the complainant told the truth. I did not take the testimony of the complainant. The record indicates that the complainant stated in part as follows:“….he inserted his penis inside my vagina.” 24.As already indicated, the only eye-witness who was called to testify was the complainant. Indeed, majority of sexual offences are usually committed in secrecy and as such, it would be difficult to get an eye witness apart from the alleged victim. In Bassita Hussein v Uganda, Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda held as follows:“The Act of sexual Intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim’s evidence must always be adduced in every case of Defilement to prove sexual intercourse or penetration. Whatever evidence the Prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”. 25.In most cases, penetration is proved by testimony which may be corroborated by medical evidence. However, absence of medical evidence does not ipso facto mean that there was no penetration-See the case of Fappyton Mutuku Ngui v Republic [2014] eKLR. The prosecution produced in evidence a Post Rape Care (PRC) form. The form was filled on the day of the alleged incident. The examination revealed that the complainant had slap marks on her cheeks, the hymen was freshly broken and there were blood clots on the genitalia as well as lacerations on the vagina. Her clothes were also blood-stained. The complainant reported to her mother, the police and hospital that a penis was used to penetrate her vagina. On the strength of the complainant’s testimony coupled with the medical evidence, I am satisfied that there was penetration of the complainant’s vagina. 26.The testimony of the complainant is clear on the events that led to her being sexually abused. The complainant further gave a clear account of what the assailant did to her. The totality of the evidence on record comprising of the testimonies of the complainant and the other prosecution witnesses leaves no room for doubt that the complainant was defiled. I have no reason to doubt that the injuries on the complainant’s genitalia were caused by an act of sexual penetration. The act was definitely intentional and unlawful. Identification of the assailant 27.The record indicates that the complainant identified the accused person as the one who had sexually abused her. From the complainant’s testimony, it appears that she had not known the accused person before. Her testimony was that she saw him on the day she was defiled. The incident is said to have occurred in broad daylight. The complainant’s testimony that she had been sent by her mother was corroborated by the mother. The P3 form indicates that the complainant reported to the police that she had been defiled by a person known to her physically. The PRC form indicates that the complainant reported that she had been defiled by an unknown person. It is not clear whether “unknown” in that context meant she did not know the person by name or whether it meant that the complainant could not identify her assailant. 28.In Mwenda v Republic [1989] KLR 464, the Court of Appeal held that whenever the case against an accused person depends wholly or substantially on the correctness of one or more identifications of the accused, special need for caution before convicting in reliance on the correctness of the identification is necessary. The Court of Appeal in the case of Marube & Another v Republic [1986] KLR 356 observed that in the evaluation of the evidence of the identifying witness, the court must ensure beyond all reasonable doubt that the witnesses were honest and unmistaken about their identification. In Kiarie v Republic [1984] KLR 739, the Court of Appeal was of the opinion that where the evidence relied upon to implicate an accused is entirely of identification, that evidence should be watertight to justify a conviction. 29.A similar observation was made by the Court of Appeal in the case of Wamunga v Republic [1989] KLR 424 where the court held as follows:“Where the evidence against an accused is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction ". 30.Further, in the case of Simiyu & Another v Republic [2005] I KLR 192 at page 195 the Court of Appeal observed:-“In every case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description are matters of the highest importance of which evidence ought to be given first of all by person or persons who gave the description and purported to identify the accused and then by the persons or person to whom the description was given. The omission on the part of the complainants to mention their attackers to the police goes to show that the complainants were not sure of the attackers’ identity.” 31.Similarly, in the case of Francis Kariuki Njiru & 7 others v Republic [2001] eKLR, the same court held:“The law on identification is well settled as this court has from time to time said that the evidence relating to identification must be scrutinized carefully and should only be accepted and acted upon if the court is satisfied that the identification was positive and free from the possibility of error. The surrounding circumstances must be considered. Among the factors the court is required to consider is whether the eye witnesses gave a description of his or her attacker or attackers to the police at the earliest opportunity.” (Emphasis mine) 32.In Maitanyi v Republic [1986] KECA 39 (KLR), the Court of Appeal held as follows:1.Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult;2.When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light available conditions and whether the witness was able to make a true impression and description;3.The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before decision is made;4.Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction. 33.Being guided by the above authority, I hereby warn myself of the danger of relying on the evidence of a single identifying witness. Unfortunately, no inquiry was made by the then trial court into the circumstances under which the complainant was able to identify his assailant. The complainant testified on 1/8/2023. This was after a period of almost nine (9) months from the date of the incident. The complainant’s testimony does not appear to have changed. Whatever she stated in court was similar to what she reported to her mother, the hospital and the police. Her evidence was consistent in material particulars. She was categorical that it was the accused person who had sexually abused her. It would appear that the memory of what happened to her on the dreadful day was still fresh in her mind. 34.The prosecution evidence indicates that the complainant identified the accused person on her way from hospital while in the company of her mother. This evidence was given by the complainant and corroborated by her mother. When the complainant was cross-examined by the accused person, she gave a description of how the assailant was dressed as well as his physical description. In my view, this lends credence to the fact that the complainant was in a position to positively identify the person who had defiled her. I have already indicated that the incident occurred in broad daylight and as such, visibility was clear. From the narration given by the complainant on what transpired on the material day, I have no doubt that the complainant had ample opportunity to properly mark the face of the person who defiled her. 35.I do not see anything that would suggest that the complainant was not sure of who had sexually abused her on the material day. The complainant may not have known the assailant before but I am struggling to find any evidence that suggests that she may not have marked the face or description of the person who violated her. There is no evidence of bad blood between the complainant and her family on one hand and the accused person or his family on the other hand. I find that the circumstances were conducive for a proper identification and that there was no possibility of error. The complainant positively identified the accused person as her assailant. Whether the prosecution has proven its case 36.I have considered the accused person’s defence bearing in mind that he shoulders no duty to prove his innocence. The accused person’s first line of defence is that he was elsewhere when the incident is said to have occurred. That he was at Emali from 6:00 am on the material day and returned home at 7:00 pm. In essence, the accused person raised the defence of alibi. In the case of Chabah & Another v Republic [1988] KLR 1, the Court of Appeal held that the onus is on the prosecution to displace the alibi after the defence raises it. In Wong’oribe v R [1980] KLR 149 Madan JA (as he then was) in delivering the judgment of the court at page 151 letter G & H stated:“The defence of alibi was put forward for the first time some months after the robbery when the appellant made his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible. ……….Udo Udoma CJ also said that, if the alibi had been raised for the first time at the trial, different considerations might have arisen as regards checking and testing it.” 37.In Kiarie v Republic [1984] KLR 739, the Court of Appeal held thus:“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable". 38.In the case of Karanja v Republic [1983] KLR 501, the Court of Appeal had this to say:“Nevertheless, we agree with the observations of the Court of Appeal for Eastern Africa in R v Ahmed Bin Abdul Hafid (1934) 1 EACA 76, and with those of the former Court of Criminal Appeal in R v Little boy, [1934] 2 KB 413, that in a proper case the court may, in testing a defence of alibi and in weighing it with all the other evidence, to see if the accused person's guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence, or his alibi, if it amounts thereto, at an early stage in the case, and so that it can be tested by those responsible for the investigation and prevent any suggestion of afterthought". 39.There is no indication that the accused person raised the defence during the investigations. He did not allude to the defence when he cross-examined the prosecution witnesses. In the case of Kossam Ukiru v R [2014] eKLR, the Court of Appeal held that the defence of alibi may be rejected as an afterthought when it is not raised at the earliest opportunity and where, when weighed against all the other evidence, it is established that the accused person’s guilt has been established. The court observed thus:“We are fully alive to the principle that an accused person who sets up an alibi does not assume any burden to prove the same (see Karanja vs Republic [1983] KLR 501). In this case, however, the two courts below rejected the appellant’s alibi defence on the basis first, that it had not been raised at the earliest opportunity in the proceedings and second, that weighing the defence with all the other evidence adduced, the appellant’s guilt was established beyond all reasonable doubt. The appellant’s complaint that his defence was not considered is therefore without merit and we reject it.” 40.Having considered the evidence on record, it is my finding that the defence of alibi set up by the accused person at the time of defence was an afterthought and I hereby reject it. The accused person was arrested on the second day from the date of the incident and there is no dispute as to where he was arrested. I have already indicated that the complainant had an ample opportunity to identify her assailant. 41.The second line of defence was that the accused person was related to both the complainant’s parents and that they have had a long standing grudge. The evidence on record indicates that while cross-examining the complainant, the accused person asked whether she knew how they were related. The complainant responded that she did not know. When the accused person cross-examined the complainant’s mother, she stated that she used to see the accused person near the bus stop. The accused person did not allude to the fact that they were related. The accused person stated that he was framed up because he lost his father. That he was also framed up because the complainant’s family wanted to take his cattle. The accused person stated that there was an allegation that he had been grazing on the complainant’s family land and that the complainant’s father had told him that the accused person would one day know that he was a man. 42.When the accused person cross-examined the complainant’s mother, she stated that at one time, she found the accused person grazing on her land. That she told him to stop and he did. The complainant’s mother further stated that she did not know the accused person’s home. In re-examination, the complainant’s mother stated that the issue of grazing was a long time ago. No issue was raised concerning the complainant’s father. The evidence on record does not show that the complainant’s father was involved in any manner. The accused person did not address the issue of the alleged long standing grudge between their families. When the accused person introduced himself during his defence, he stated that he was a Herdsboy. A Herdsboy does not ordinarily own the livestock that he takes care of. That being the case, it cannot be said that the complainant’s family wanted to take his cattle. The evidence shows that the accused person was pointed out by the complainant herself and not any of her parents. 43.It is the word of the complainant against that of the accused person, bearing in mind that the burden is on the prosecution to prove the allegation against the accused person beyond reasonable doubt. In Philip Nzaka Watu v Republic [2006] eKLR, it was held that to find a conviction in a Criminal case, the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in Stephen Nguli Mulili v Republic [2014] eKLR:“It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP V WOOLMINGTON, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See FESTUS MUKATI MURWA V R, [2013] eKLR.” 44.In the famous case of Miller v Ministry of Pensions [1947] 2 All ER 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. 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 favour 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, but nothing short of that will suffice.” 45.In Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating:“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” (Emphasis mine) 46.The standard of proof "beyond reasonable doubt" is grounded on a fundamental societal value determination that it is far worse to convict an innocent man than to let a guilty man go free. A reasonable doubt exists when the court cannot say with moral certainty that a person is guilty or that a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as "such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause or hesitate before or taking the represented facts as true and relying and acting thereon" (see Clarence Victor, Petitioner 92-8894 v. Nebraska, 511 U.S. 1 (1994); Rex v. Summers, (1952) 36 Cr App R 14; Rex v. Kritz, (1949) 33 Cr App R 169, [1950] 1 KB 82 and R. v. Hepworth, R. v. Feamley, [1955] 2 All E.R. 918). Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty. Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the offence charged. 47.It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt. I have already found that the complainant was defiled and that the accused person was positively identified as the perpetrator. 48.I do not find difficulties in believing the complainant. Her testimony was corroborated by other witnesses and evidence. Even after several months, the complainant did not change her story when she testified in court. As for the accused person, I find no reason to give him a benefit of doubt. The evidence against him is overwhelming and I see no room for escape. The prosecution evidence is water tight and irresistibly points to the guilt of the accused person. It is my finding that the prosecution has discharged both the legal and evidentiary burden of proof. The proof is beyond reasonable doubt. Disposition 49.In view of the foregoing, I find that the prosecution has proven its case against the accused person beyond reasonable doubt. Consequently, I hereby find the accused person GUILTY and proceed to CONVICT him of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, pursuant to the provisions of section 215 of the Criminal Procedure Code. Having convicted the accused person on the main count of defilement, I make no orders as to the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 30TH DAY OF JULY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.