Director of Public Prosecution v Kilonzo (Sexual Offence E035 of 2021) [2023] KEMC 280 (KLR)

A Certificate of Birth produced as P. Exh 1 gave the date of birth as 12th September 2005. Its authenticity was never attacked by the defence, so the element of age was satisfied beyond reasonable doubt under Rule 4 of the Sexual Offences Rules of Court, 2014, which permits reliance on birth certificates, school documents or baptismal cards.

Oral medical evidence and the P3 form, Post Rape Care Form and Medical Treatment Notebook (P. Exh 2, 3, 5, all dated 27th May 2021) proved penetration beyond peradventure. However, the medical evidence described the genital organs in a manner suggesting no notable recent interference, and the recency of the penetration could not be determined from the records.

The complainant's versions of who summoned her from the cell and whether a condom was used differed materially across her testimony, her mother's and PW6's evidence. Investigating officer PW7's hearsay account of a cellmate who never testified carried no weight. PW5 and PW8 corroborated that the accused was outside the Report Office precincts at the most material point. The court thus found it unsafe to dispense with corroboration under section 124 of the Evidence Act.

Evidence showed remandees relieve themselves in buckets at night and sleep on lesos, robbing detainees of human dignity contrary to the constitutional entrenchment of social rights. Had the Standing Orders requiring two officers on duty, a female officer and two padlocks been followed, the matter would have been demystified. The court urged NCAJA to end the practice.