https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/410

 **REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATE’S COURT AT LAMU** **CRIMINAL SO. NO. E006 OF 2026.** **REPUBLIC……………………………………..…………………………………..PROSECUTOR** **-VERSUS-** **OMAR ATHMAN MUSA.…….………....…………….…………………. ACCUSED PERSON** **JUDGEMENT.** 1. **INTRODUCTION.** 2. Omar Athman Musa is charged with defilement contrary to section 8(1) as read as section 8(4) of the Sexual Offences Act. He is also charged with the alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 3. The particulars were that during the month of June 2025 at [particulars withheld] in Lamu the accused intentionally and unlawfully caused his penis to penetrate the vagina of RSA a child of 17 years. 4. In the alternative count, the particulars were that on the said, time and place the accused unlawfully and intentionally caused his penis to touch the vagina of RSA a child aged 17 years. 5. 6 witnesses were called by the prosecution whereas on the other hand the accused after being found to have a case to answer, he opted to remain silent and the defence case was closed. 6. In this judgment I have considered the testimonies of both sides and the exhibits produced. **The Prosecution’s case.** 1. It is the prosecution’s case through the victim that in the month of June 2025 at around 4pm went to the accused’s house and the accused asked for sex from her but she declined but the accused held her shoulders and made her lie on the bed, removed her inner pants thereafter removed his and took his penis and inserted in her vagina (sehemu yangu wa siri ya mbele). It was her testimony that the accused never wore a condom hence it was unprotected. 2. It was her further testimony that after he was done the accused told her that it was a rite of passage and just a small thing. It was her testimony that she tried to scream since it was painful but the accused overpowered her and blocked her mouth with his hands. 3. That after the accused was done, the accused told her not to tell her parents as she sought to know what to tell them since she was a virgin before the occurrence of that incident. She then dressed up and went home and went about her daily routine and all went well until one Abdul who is the owner of the house in which the incident happened told her father what happened and that is how she was summoned to record her statement after being interrogated by Pw 5(Cpl Mercy Salama). He concluded that the accused is well known to her because he is his boyfriend. 4. Pw 3 the victim’s father stated that on 2/4/2026 the owner of the house Abdul called him and informed him that one of her daughters had been defiled. He then summoned his 2 daughters and interrogated them starting with Pw 1 and who admitted that the she had sex with the accused and upon being asked why she did not tell him she answered that she feared him. He reported the matter to the police and Pw 1 was then examined and accused was later arrested. Pw 4 was the arresting officer. 5. PW 5 Cpl Mercy Salama was the IO in the matter and stated that on 2/4/2026 Pw 1 and 3 went to the station and made a report of defilement. She then interrogated Pw 1 and who narrated to her that sometimes in June 2025 she went to the accused’s house after being invited by the accused and upon arrival she was offered a bottle of soda and after sipping the said soda she felt dizzy and she slept and when she woke up she found that she had been defiled by the accused. Upon this realization, she felt bad and betrayed but the accused consoled her and promised to marry her and also threatened her not to tell anyone what had transpired. 6. She then escorted the victim to hospital in the company of Pw2 the victim’s mother and upon examination it was discovered that her hymen was missing. She then recorded the statement of the witnesses save for one Abdul who despite informing Pw 3 about the defilement refused to record his statement for the reason that he did not want to cause friction between the 2 families. She then produced the minor’s birth certificate as Pexh 3. 7. Pw 6 Mohamed Omar a medical officer registered vide registration number A17485 and working at King Fahad examined the victim who presented with the history of having been defiled by a person known to him and the incident had happened over a year ago and upon examination and observed that her external genitalia was normal, the clitoris and labia were intact and normal, no bruises or lacerations but the hymen was perforated. He produced the treatment notes, p3 form and PRC form as Pexh 1,2 and 4 respectively. 8. **ISSUE FOR DETERMINATION.** 9. The following issue is in my view for determination in this matter; 10. **Whether the offence of defilement was proven to the required standard.** 11. **ANALYSIS AND DETERMINATION.** 12. For the offence of defilement to be proved the age of the complainant, penetration and positive identification of the accused have to be proved beyond any reasonable doubt. 13. In the case of **Dominic Kibet Mwareng v Republic [2013] eKLR** 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".** 1. Similarly, in the case of **CWK 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. 2. In the case of **George Opondo Olunga vs Republic [2016] eKLR** the court held on appeal that **each** of the 3 ingredients named above must be proved for a conviction to ensue. 3. Section 8(1) of the Sexual Offences Act provides as follows: **“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.** **(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.** **(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.** **(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.** **(5) It is a defence to a charge under this section if -** **(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and** **(b) the accused reasonably believed that the child was over the age of eighteen years.** **(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.** **(7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.** **(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees.** 1. **Age** of the victim is ordinarily proved by the victim’s birth certificate**.** One such birth certificate was produced in this case as Pexh 3. The importance of proving age in a sexual offence case cannot be gainsaid. In the case of **Kaingu Kasomo vs Republic, Criminal appeal No. 504 of 2010**, the court of appeal stated as follows; **“Age of the victim of sexual assault under the sexual offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”** 1. The birth certificate shows the date of birth as 10/5/2008 meaning at the time of the offence which is stated to be in June 2025, the victim was 17 years so no doubt the victim was 17 years old. The accused did not dispute the victim’s age in any event. 2. Her age was thus proved beyond reasonable doubt and for all intents and purposes she is a child. 3. The second ingredient is **penetration**. Penetration is defined under Section 2 of the Sexual Offences Act as follows: **“The partial or complete insertion of the genital organ of a person into the genital organs of another person.”** 1. Penetration is ordinarily to be proved through the evidence of the victim herself corroborated by medical evidence and in other circumstances through the sole evidence of a child pursuant to section 124 of the Evidence Act. 2. In this matter, it was the evidence of the victim that on the material date and upon invitation by the accused person, she went to the house and upon arrival the accused asked for sex but she declined and in a way the accused forced his way by holding her shoulders and made her lie on the bed. He then removed her inner pants, removed his clothes and inserted his penis to his vagina. 3. Pw 5 the IO narrated to court that the victim informed her that upon arrival the accused served her with a bottle of soda and after a few sips, she got dizzy and slept and woke up minutes later to the realization that her innocence had been taken away. 4. I find this account of events troubling. The victim seems to have 2 versions of the same story. One that she told the court and the other that she told the IO. These are telltale signs of a dishonest witness. 5. Penetration in my view is so crucial in any sexual offence case. So much so that in the event it is proved, a defilement is proved and if not a charge of indecent Act stands proved. This therefore calls for keen scrutiny in the evidence appertaining penetration. From the medical evidence it is there is no doubt that hymen is not intact or to use the words of the doctor it is perforated. The victim asserts it was the accused who is responsible for its perforation sometimes in June 2025. She does not categorically state that since then she has not engaged in any sexual act whether with the accused or any other person. This is important as it shall be apparent in a short while. 6. In a bid to confirm that indeed it is the accused who penetrated her vagina using his penis, she told this court that the accused held her shoulders and made her lie on the bed then he defiled her. In essence she witnessed it firsthand. When interrogated by the IO Pw5, the story changed. She told the IO that she arrived at the accused’s house and she was welcomed with a bottle of soda and after a few sips she felt dizzy and slept and woke up minutes later and realized she had been defiled. In this case, she did not witness the ordeal as she was unconscious. 7. Going by the story as narrated to the IO, it is safe to state that she did not witness the penetration or she cannot tell who penetrated her and only suspected it was the accused because they were in the same house together and it is the accused who invited her. This is the quagmire the court finds itself in as to whether to believe the account of events as narrated to the IO or the one the victim narrated by herself. Could it be that the victim is confusing some 2 occurrences? 8. This is what courts have said when handling a dishonest witness. One who tells 2 versions of the same story without blinking an eye. In the case of **Ndungu Kimani vs Republic [1979] KLR 282** the court of appeal aptly observed; “**The witness in a criminal case upon whose evidence is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person or raise suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity and therefore unreliable inordinate witness which makes it unsafe to accept the evidence**” 1. As I have already stated the victim before her testimony in court narrated the occurrence of events to the IO and I take the view that it could be that she told the IO the truth. This is the because the IO is a person in authority and there is always a tendency to state the truth and further that truths always come out in first narrations. This is not idle talk, in **Terekali & another vs Republic [1952] EA 259** the court held as follows; **“Evidence of first report by the complainant to a person in authority is important as it often provides a good test by which the truth and accuracy of subsequent statements may be gauged and provides a safeguard against later embellishments or made up case. Truth will always come out in a first statement taken from a witness at a time when recollection is very fresh and there has been no time for consultation with others….”** 1. With that argument I believe that the occurrence of events on the material date were as narrated to the investigation officer that she was drugged and thereafter defiled. 2. However, when she testified as I have already stated, she gave a completely different account of events and never mentioned the issue of being drugged to sleep then thereafter being defiled by the accused person. To her recollection, the accused forced his way and defiled her. She remembers this so vividly that she states she could not scream despite the pain because the accused covered her mouth with his hands. 3. There is no explanation given by the victim why she drastically changed her evidence and/or testimony. The victim in view was not truthful with the court and this creates a doubt in the mind of the court as to whether or not she told the truth as to what exactly happened that day. She cannot be trusted and/or believed. This makes it unsafe to accept her evidence as guided in the case of **Ndungu Kimani(supra).** 4. In addition, the victim in her testimony does not in any manner or form suggest that after the act the accused threatened her with untold consequences should she disclose what happened however, when Pw 5 the IO took to the dock it was her testimony that after the ordeal the accused threatened her and warned her not to tell her family members. Another contradiction. 5. Were it not for one Abdul, this incident would have remained a secret between the accused and the victim having been held as much for a year plus but Abdul let out the cat out of the bad. He informed Pw 3 that one of her daughters had been defiled. What did Pw 3 do? He summoned all her daughters and interrogated the victim first and she admitted to have engaged in sexual intercourse with the accused and upon being asked why she did not tell him, she stated that she feared him. It should not be lost on us that she does not state that she was threatened by the accused as she told Pw5 the IO. 6. What is more intriguing is that the Abdul never disclosed to Pw 3 who defiled the victim and how he came to know that one of Pw3’s daughters had been defiled. Pw 5 summoned him during investigations he did not honour the summons and the Pw 5 was forced to compel his attendance but still this could not persuade him to disclose further and better particulars. Things would have been different had the said Abdul disclosed to the IO how he came to know about this incident and who was responsible for the incident. The fact that this was not disclosed and given thee fact that it is clear that the victim fears her father, it is possible that out of fear she named the accused. This assertion is supported by the fact that the victim has been changing her account of events on the material date as I have discussed above. 7. Having analyzed the aforesaid discrepancies I am of the firm view that they are apparent and they go to the root of the prosecution’s case. Discrepancies are bound to occur in evidence. The critical question is always whether the discrepancies are minor and inconsequential or whether they are material so as to vitiate the prosecution case. (See for example ***Joseph Maina Mwangi v. Republic, CR, APP No. 73*** ***of 1993, Kimeu v. Republic (2002) 1 KAR 757*** and ***Willis Ochieng Odero v. Republic [2006] eKLR).*** In ***John Nyaga Njuki & 4 Others v. Republic, Cr. App. No. 160 of 2000,*** the Court of appeal expressed itself as follows on the issue: ***“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.” (emphasis supplied)*** 1. Having taken into account that that not all contradictions are fatal, in this matter I take the firm view that the contradictions I have discussed in this judgment go to root of this case as the credibility and trustworthiness of the victim has been put to question. This is important because pursuant to Section 124 of the evidence Act this court can convict on the evidence of the victim alone hence a higher standard is placed on her to ensure that there is no iota of doubt in her testimony. 2. I do find therefore that the evidence of the victim especially as relates to how the act of penetration occurred is unsafe. 3. The last ingredient is that of identification. There is no dispute as to the identity of the accused person. The accused did not dispute his identity. He did not dispute for instance what the victim stated that he was her boyfriend. Furthermore, he remained silent and never offered any defence. His identity was thus proved by the prosecution. 4. On the alternative count of committing an indecent act with the victim, the evidence of the victim is akin to a poisoned chalice. It is not safe to drink anything from it. For the same reason the main count is not proved is the same reason the alternative is not proved. The evidence in support of the alternative count also suffers from lack of credibility and trustworthiness on the part of the victim. 5. **CONCLUSION AND DISPOSITION.** 6. To this end and taking into account the totality of the evidence, the law and the exhibits produced herein the charge of defilement contrary to section 8(1) as read with 8(4) of the Sexual Offences Act has not been proved to the required standards. 7. The accused person is thus not guilty for the said offences and he is acquitted in the said offences under Section 215 of the Criminal Procedure Code. 8. Those shall be the orders of the court. 9. Right of appeal 14 days is granted to the prosecutions. **DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS…30th …DAY OF …JULY…2026.** **F.M. MULAMA** **RESIDENT MAGISTRATE** **In the presence of:** Court Assistant:- Abuswaleh. DPP:-Idris Tomno Accused:- Omar Athman Musa.