https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/126

Republic v Mutie (Sexual Offence E002 of 2023) [2026] KEMC 126 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEMC 126 (KLR) Republic of Kenya In the Makindu Law Courts Sexual Offence E002 of 2023 YA Shikanda, SPM May 28, 2026 Between Republic Prosecution and Alex Mutie Accused Judgment The Charge 1.Alex Mutie (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(4) of the Sexual Offences Act. The particulars of the offence are that on diverse dates between March, 2022 and 4/1/2023 at [Particulars Withheld] in Nzaui Sub-county within Makueni County, the accused person intentionally and unlawfully caused his penis to penetrate the vagina of SMK (name withheld), a child aged 17 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 within the same period and at the same area, the accused person intentionally and unlawfully touched the vagina of SMK aged 17 years using 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. When the matter was placed before me, it was directed that the same proceeds from where it had reached. The prosecution called a total of three (3) witnesses in a bid to prove its case against the accused person. PW 1 SM (hereinafter referred to as the complainant) testified that she knew the accused person in December, 2022. That she met the accused person on her way from the market whereupon they introduced each other and exchanged phone numbers. The complainant stated that the accused person called her on phone the same day later in the night and asked to have an affair with her. That the accused person later went to the complainant’s house and spent the night there. 3.The complainant stated that they had sexual intercourse that night and thereafter, the accused person would go to the complainant’s house and they would have sexual intercourse. According to the complainant, the accused person was apprehended by the mob on one night when he was going to the complainant’s house. The complainant was later taken to hospital for examination. PW 2 RK testified that the complainant was his niece. That he was informed by Nyumba Kumi people that a young man usually went his compound. The witness went to check but the suspect escaped. He asked young men to look for the suspect. The suspect was later apprehended. PW 2 stated that he took the complainant to hospital. PW 3 Police Corporal Samson Ole Kimande testified that on 6/1/2023 he was called on phone by the area Assistant Chief and informed that a person had been apprehended at the home of PW 2 and that he had been found with a school girl. PW 3 together with his colleagues proceeded to the scene and met the villagers in the company of the accused person and the complainant. The accused person and the complainant were taken to the police post. They were later taken to Emali Police station. The Defence Case 4.When the accused person was placed on his defence, he opted to give a sworn testimony and called two other witnesses. The accused person testified that he did not commit the offence. That the complainant became known to him after his arrest. That he was arrested on the way from the home of his fiancée. The accused person stated that on 4/1/2023 he spent the night at the house of a fellow Pastor. That on 7/1/2023 he was apprehended after leaving the home of his fiancée on allegations that he was having sexual intercourse with a school girl. The accused person stated that later, a girl appeared and pointed him out. The accused person was later taken away by the police. It was the evidence of the accused person that the police and the complainant’s uncles demanded Ksh. 250,000/= but he declined to give out the money. 5.DW 2 Celestine Mueni Masai testified that the accused person was her husband. She stated that on 4/1/2023 she met the accused person and they parted ways at about 9:00 pm. That on 7/1/2023 the accused person went to DW2’s home at about 8:00 pm and stayed until 10:00 pm. The witness stated that she and her brother escorted the accused person to where he had left his motor cycle then she returned home. DW 2 later heard noises and learnt that the accused person had been apprehended. DW 3 John Kyalo Mbui testified that the accused person was his friend. The witness stated that he called the accused person to his home on 4/1/2023. That the accused person went to DW 3’s home and spent the night there. DW 3 further stated that on 7/1/2023 he met the accused person at about 5:00 pm. They then went to the home of DW 2 and stayed there until 10:00 pm. The following day, the witness learnt that the accused person had been arrested. Main Issues For Determination 6.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 between March, 2022 and 4/1/2023;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 during the material period;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 7.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". 8.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. 9.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". 10.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 11.The particulars of the offence indicate that the complainant was seventeen (17) 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". 12.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". 13.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. However, in the case of Kaingu Elias Kasono v Republic Criminal Appeal No. 504 of 2010, the Court of Appeal sitting at Malindi held as followsAge 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” 14.In this case therefore the Court of Appeal found age to be a critical component in a defilement case and as such a material fact requiring proof beyond reasonable doubt. 15.The Court of Appeal, differently constituted in Richard Wahome Chege v Republic [2014] eKLR, observed as follows:On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth" It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself." 16.Two years later in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, a different bench of the Court of Appeal sitting at Mombasa held as follows:The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v. Republic, Cr. App. No. 203 of 2009 (Kisumu), this Court stated as follows:'In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1)..." 17.In a decision delivered on 22/3/2019, the Court of Appeal in the case of Eliud Waweru Wambui v Republic [2019] eKLR, held thus:There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt. That has been the consistent holding of this Court and we are content to adopt what the Court sitting at Mombasa stated in Hadson Ali Mwachongo Vs. Republic [2016] eKLR;'The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In Alfayo Gombe Okello vs. Republic Cr. App. No. 203 of 2009 (Kisumu). This Court stated as follows;'In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).'....................There was no age assessment as such that was done on the complainant.............The other evidence of age is that of the complainant herself which, other than being hearsay in character, is no more illuminating............one cannot speak competently on her date of birth as she cannot have witnessed it and the only document that was produced of the same was of no probative value, as earlier stated. PW2’s testimony regarding her age was simply that she was born in 1991. He did not give an exact date. Neither did her mother, PW3, who was content to merely say that the complainant was 17 years and 5 months when she exhibited signs of pregnancy. The totality of the evidence on age is that it did not possess the consistency and certainty that would have proved the exact date of the complainant’s birth beyond reasonable doubt. We would therefore agree with the appellant’s complaint that had the learned Judge gone into an analysis of the evidence with the thoroughness that was required of her, she would probably have arrived at a different conclusion. In failing to engage in that exhaustive re-evaluation, she fell into error and the lingering doubts must be resolved in favour of the complainant...........................We think also that it stands to reason that a person is more likely to be deceived into believing that a child is over the age of 18 years if the said child is in the age bracket of 16 to 18 years old, and that the closer to 18 years the child is, the more likely the deception, and the more likely the belief that he or she is over the age of 18 years." 18.The record indicates that a Child health card indicating that the complainant was born on 20/3/2006 was marked for identification but the same was never produced in evidence. In the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR, the Court of Appeal held as follows:The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record". 19.In Des Raj Sharma v Reginam [1953] 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa v The State [1994] 7-8 SCNJ 144, it was held that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence. It therefore follows that there is no documentary evidence to prove the age of the complainant at the time of the alleged offence. 20.The instant offence as well as the consequences that flow therefrom are determined by the age of the victim. It was therefore incumbent on the prosecution to prove that the complainant was 17 years old or at least less than 18 years old at the time of offence. Apart from the oral testimony of the complainant, no other evidence was adduced to prove her age. As rightly observed by the Court of appeal in the case of Eliud Waweru (supra), children between the age bracket of 16 and 18 years could easily pass as adults. I did not see the complainant and could not therefore draw an opinion from observation. With the evidence on record, I would not hold with certainty that she was a minor without proof of her age. In the circumstances of this case, proof of her age beyond reasonable doubt was required. No such proof was adduced by the prosecution. I find that there is no sufficient evidence to prove that the complainant herein was below the age of eighteen years at the time of the alleged offence. Penetration 21.The particulars of the offence indicate that the same was committed on diverse dates between March, 2022 and 4th January, 2023. This implies that the offence was committed more than once and over a considerable period of time. The only direct evidence in respect of the offence is that of the complainant herself. 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. Whether the testimony of the alleged victim is given on oath or not, the court must of necessity exercise great caution before convicting an accused person. 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. 22.In view of the foregoing, I hereby warn myself that despite the fact that the complainant gave a sworn testimony, it would be unsafe to convict the accused person in the absence of corroborative evidence. I will seek to be satisfied that indeed, the complainant told the truth. 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”. 23.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 complainant testified that she met or knew the accused person in December, 2022. This is contrary to the particulars of the charge which indicate that the offence was committed from March, 2022. The evidence of the complainant was that on the first day they met in December, 2022 the accused person went to her house later that night and they had sexual intercourse. When the complainant was cross-examined by the accused person, she stated that the first time they had sexual intercourse was on 5/1/2023. No medical evidence was produced. 24.The testimony of the complainant was contradictory in itself and was also at variance with the charge. It is not clear when the complainant could have engaged in sexual intercourse with the accused person. The guilt of the accused person depends on the testimony of the complainant. With such contradictory testimony, the court cannot be sure whether the complainant told the truth. Whereas I cannot authoritatively state that there was no penetration, with the evidence on record, I cannot ascertain that there was any penetration. It is thus my finding that there is insufficient evidence to prove the act of penetration. Identification of the assailant 25.The complainant stated that when she met the accused person in December, 2022 they exchanged telephone numbers. That the complainant gave the accused person her mother’s phone number and they used to communicate on phone. The complainant stated that her mother stayed in Nairobi and that she stayed with her grandmother. It is not clear how the two used to communicate through the complainant’s mother’s phone when the complainant and her mother lived separately. Nonetheless, there is no evidence of prior communication between the complainant and the accused person. The complainant stated that the accused person was apprehended when he was seen going to her house. 26.PW 2 stated that he was informed by Nyumba Kumi people that a man used to go to his compound. That the witness went to check but the man escaped. He asked the Nyumba Kumi youth to look for the suspect. None of the persons who allegedly apprehended the accused person were called to testify. As far as the prosecution case is concerned, the circumstances under which the accused person was arrested are unclear. None of the persons who used to see the accused person enter the complainant’s house was called to testify. I have considered the accused person’s defence on how he was apprehended. The accused person called two witnesses who confirmed that they were with the accused person on the material night before he was apprehended. The testimony of the complainant was that the accused person was apprehended on his way to the complainant’s house whereas the evidence of PW 2 indicates that the accused person was apprehended after he had been to the complainant’s house. 27.There is a serious contradiction in the prosecution evidence that raises reasonable doubt as to whether the accused person was ever at the complainant’s house on the night that he was arrested. Whereas it is possible that the accused person could have gone or planned to go to the complainant’s house after parting ways with his witnesses, the contradictory evidence and lack of evidence on the circumstances under which the accused person was apprehended, greatly dents the prosecution case. I will have no reason to doubt the testimony of the accused person and that of his witnesses. Even assuming that the complainant was defiled, there is no positive identification to prove that it was the accused person who defiled her. The prosecution evidence does not establish a proper, positive and irresistible link to show that it was the accused person and not any other that could have defiled the complainant. The evidence of identification of the accused person as the perpetrator is not cogent. Whether the Prosecution has discharged its burden. 28.I have considered the accused person’s defence bearing in mind that he shoulders no duty to prove his innocence. The gist of the accused person’s defence is that he was framed up. 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.” 29.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.” 30.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) 31.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. 32.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. The evidence of the prosecution witnesses was contradictory, inconsistent and uncorroborated. I am able to entertain doubt that is not unreasonable. Whereas I cannot state with conviction that the accused person was framed up, I have difficulties in dismissing his defence. The accused person may or may have not engaged in sexual intercourse with the complainant. Even if penetration had been proved, the circumstances of the case would not place it in the realm of defilement, owing to failure to establish or prove that the complainant was below the age of 18 years at the material time. Disposition 33.In view of the foregoing, I find that the prosecution has failed to prove its case against the accused person beyond reasonable doubt. Consequently, I make the following final orders:a.I hereby find the accused person not guilty of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act, pursuant to the provisions of section 215 of the Criminal Procedure Code;b.The accused person is hereby acquitted of the charge accordingly;c.Having acquitted the accused person on the main count of defilement, the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act shall suffer the same fate;d.For avoidance of doubt, the alternative charge is equally dismissed. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 28TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.