Republic v Wekesa (Sexual Offence E004 of 2021) [2022] KEMC 21 (KLR)

The court required the prosecution to prove the victim's age as an ingredient of defilement. PW1 produced a copy of the complainant's birth certificate as exhibit 1 confirming the date of birth of April 11, 2007. The court calculated the age as at February 22, 2021 and found the complainant aged 13 years, falling in the bracket defined by section 8(3).

The clinical officer conceded no conclusive scientific evidence of defilement existed because a genital exam was not possible due to lapse of time. Relying on JMM v Republic and Denis Osoro Ohiri, the court held medical evidence is not mandatory. The complainant's graphic, credible narration after a voir dire examination, taken with circumstantial evidence, satisfied the court of penetration beyond reasonable doubt under the proviso to section 124 of the Evidence Act.

The court applied the definition of indecent act under section 2(b) of the Sexual Offences Act as exposure or display of pornographic material to a person against their will. PW1's discovery of pornography on her phone's browser history, the printed exhibits, and the complainant's testimony that the accused introduced him to the material and they practised what they watched supported the finding. The accused's denial was a mere dismissal; her claim of bad relations with her employer was undercut by her failure to quit employment, and the lockdown period meant she was alone with the victim.

The court relied on JWA v Republic reaffirming that the proviso to section 124 of the Evidence Act makes corroboration non-mandatory. It noted the voire dire examination conducted on the complainant established that he understood the duty to speak the truth and was of sufficient intelligence, and it agreed with the trial-stage finding that the witness's evidence was tenable.