https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/239

Republic v Sande (Sexual Offence E004 of 2025) [2026] KEMC 239 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEMC 239 (KLR) Republic of Kenya In the Port Victoria Law Courts Sexual Offence E004 of 2025 AK Njeru, SRM June 10, 2026 Between Republic Prosecutor and Erick Sande Accused Ruling 1.The accused has been charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. 3 of 2006. Particulars are that on the 10th and 11th days of November 2020 at Budonga village, Bunyala West Sub-County within Busia County, the accused intentionally caused his penis to penetrate the vagina of M.A a child aged 15 years, 2.The accused faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 3 of 2006. Particulars are that on the 10th and 11th November 2020 at Budonga village, Bunyala West Sub-County within Busia County, the accused intentionally touched the vagina of M.A, a child aged 15 years, with his penis. 3.The accused denied the charge, and the prosecution, as of 6/5/2026, had only called 2 witnesses. 4.A brief history of this matter is that the same originated from Busia Law Court before the operationalization of this court in July 2023. The court record reflects that the accused was arrested on 11/11/2020 and presented before the Chief Magistrate's Court at Busia, where he took a plea on 13/11/2020. The accused was released on bond on 17/11/2020, and the matter was later mentioned on 25/11/2020. 5.The matter came up for hearing on several occasions, with several adjournments on the part of the prosecution, mostly until 11th April 2022, when a village elder testified. On 7th February 2025, the Court sitting in Busia had this matter transferred to Port Victoria Court and summons were issued to the investigating officer to explain the position of the matter. On 3/3/2025, 83173 PC Solomon Wasilwa, the investigating officer, informed the court that he had difficulties tracing the witnesses in the matter, having taken over the file from one IP Chengo, who had since been transferred. He prayed for more time to locate the witnesses. On 28/4/2025, PC Wasilwa through the prosecution Counsel prayed for summons to issue to the complainant. The matter proceeded with the testimonies of one Peter Khagoda and Colins Apadet, the clinical officer. The record reflects that the matter came up several times for hearing, with the hearings being adjourned at the prosecution's request. Finally, the Deputy OCS, Port Victoria Police Station, on behalf of the OCS, while responding to a summons to appear and explain the failure to bond witnesses, stated that efforts to trace them had borne no fruit and prayed that the summons be withdrawn. 6.The prosecutor applied for the matter to be withdrawn under section 87(a) of the Criminal Procedure Code as read with section 40 of the Sexual Offences Act no. 3 of 2006. 7.The accused objected to the said prayer and instead prayed for an acquittal altogether. 8.The issue for determination is now whether the prosecution’s application ought to be allowed. 9.Section 87(a) of the CPC provides as follows :“87.Withdrawal from prosecution in trials before subordinate courtsIn a trial before a subordinate court a public prosecutor may, with the consent of the court or on the instructions of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person, and upon withdrawal—(a)if it is made before the accused person is called upon to make his defence, he shall be discharged, but discharge of an accused person shall not operate as a bar to subsequent proceedings against him on account of the same facts;(b)if it is made after the accused person is called upon to make his defence, he shall be acquitted.Section 40 of the Sexual Offences Act provides as follows“40.Director of Public Prosecutions to decide whether police investigations should be discontinuedThe decision as to whether the prosecution or any police officer's investigation of a complaint that a sexual offence has been committed should be discontinued shall rest with the Director of Public Prosecutions.” 10.The provisions of section 87(a) of the CPC are couched in terms that the discretion to allow a withdrawal of a criminal case before the court lies with the Court, while section 40 of the Sexual Offences Act talks of the discretion on prosecution or investigations that lies with the prosecution. This, in plain terms, means that it remains the court’s discretion whether or not to allow a withdrawal under section 87 of the Criminal Procedure Code while the prosecution is only left with the discretion to proceed to prosecute or not. 11.That said, I have considered the record before me in its entirety. At no time since the inception of this case has the complainant ever attended court to testify. At the age of 15 years, she was not a child of tender years but a teenager capable of following up on proceedings either by herself or in the company of her parents/guardian. At no time does the record reflect that either ever attended court. The accused had absconded several times and, at one point, had his bond suspended as a punishment to deter absences during hearings. Yet in all those times the matter has come up for hearing, it is evident that at minimal times was the prosecution ready to proceed. This primarily means that the accused has been disadvantaged all through since their arrest in the year 2020, more than 5 years ago. 12.Article 50(2) e of the constitution provides that an accused has a right to have their trial begin and conclude without unreasonable delay. 13.From the conduct of the prosecution, there has been extreme difficulty tracing the witnesses in this case. The investigating officer, as well as the OCS Port Victoria Police station where the matter was initiated, has stated as much. There is no likelihood of the complainant resurfacing to pursue the matter if, by now, 5 years down the line, noting that she is now an adult, she has not made such an effort. The prayer to withdraw under section 87(a) of the Criminal Procedure Code would therefore in the circumstances be prejudicial based on the proceeding provision under section 87(b) thereof. 14.In light of the above, I find that unreasonable delay has been caused in the conclusion of this matter, hence a clear infringement of his right to a fair trial. I hereby acquit the accused of the charges herein pursuant to section 210 of the Criminal Procedure Code. Accused is henceforth set at liberty unless otherwise lawfully held. 15.Surety is hereby discharged. Right of appeal within 14 days explained. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 10TH DAY OF JUNE 2026HON. ANNE NJERUSRMIn the presence ofThe accused(in kiswahili the language he states to fully understand)Mr. Githinji the prosecutor andMr. Victor the Court Assistant.