Mercy Cherotich v Republic

describing it in her own words as “hapa pa kususu.” She reported the incident to her grandmother, PW3. 5. PW2, Edith Kerubo, a nurse at Coptic Hospital, produced the P3 Form and clinical notes relating to the minor. On medical examination, she observed a fresh tear of the hymen with irregular margins, redness of the vaginal walls at the 6, 7, and 8 o’clock positions. There were no injuries to the external genitalia. She opined that the injuries were consistent with digital penetration. 6. During cross-examination, PW2 testified that the minor was examined on 5th October 2024. She stated that the injuries could have been sustained between immediately and up to one week prior to examination. She further conceded that any form of friction could cause redness on the vaginal walls. She confirmed that diagnosis is reached by first taking the history from the patient/guardian and then conducting an examination to determine whether the history is consistent with the clinical findings. In re-examination, PW2 reiterated that the history given was consistent with the injuries observed. 7. PW3, JNW, the minor’s grandmother, testified that on 28th September 2024, her daughter informed her that the minor was unable to walk or pass urine. Upon waking and examining the child’s private parts, she found them reddish. She questioned the house help, who denied knowledge of any incident. The child claimed she had fallen outside and directed PW3 to ask the caretaker and another lady (Mama Nyambura). Mama Nyambura informed her that the child had not fallen but had only gone to relieve herself. 8. The following day (29th September 2024), PW3 took the minor to Nairobi Women’s Hospital. The doctor who examined her reported attempted penetration. When asked what happened, the minor stated that the appellant had told her to lie down and then inserted her fingers into her vagina. On 3rd October 2024, the minor continued to complain of pain and difficulty in passing urine. PW3 returned to the hospital but could not locate the initial doctor. She administered painkillers while awaiting further medical review. On 5th October 2024, she took the child back to hospital, where examination revealed that the hymen was broken. 9. PW3 reported the matter at Muthangari Police Station and was referred to Coptic Hospital for further examination. She was informed that the minor’s hymen was broken. When she confronted the appellant, the minor told PW2 that the appellant had touched her private parts. The appellant smiled and told PW3 that she wanted the child “to be clean like others.” 10. In cross-examination, PW3 stated that the incident occurred on 28th September 2024. Although the minor had disclosed that the appellant touched her private parts, she did not take immediate action beyond taking the child to hospital on 29th September 2024, where the doctor noted redness and possible attempted penetration. She confirmed that she had been caring for the minor for four months and had not been paid for one month at the time of the incident, but was later paid. There had been no prior disagreements. When she examined the child, the private parts appeared oiled and shiny. 11. PW4, DWN (the minor’s mother), testified that on the material date, she returned home and found her daughter in pain in her private parts. The appellant informed her that the child had fallen down. The minor had difficulty walking and requested to be carried. PW4 removed the child’s clothes, examined her, and observed that she had been oiled. PW4 corroborated the testimony of PW3 in material respects. 12. PW5, PC Wambui Muli, attached to Kangemi Police Station, gave evidence that corroborated the testimonies of PW2, PW3, and PW4 regarding the report, arrest, and investigation of the case. 13. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4646/eng@2026-04-09 2

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14. Section 5 of the Sexual Offences Act provides as follows: “ (1) Any person who unlawfully— (a) (b) (2) 15. penetrates the genital organs of another person with— (i) any part of the body of another or that person; or (ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes; manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an offence termed sexual assault. A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life." From the above provisions (section 5(1) (a) (i)), I gather that for the purposes of this case, the prosecution must prove the following elements: 1. That there was unlawful penetration of the genital organ of the complainant herein; 2. That the said penetration was done using a part of the body of the accused person; 3. Positive identification of the accused person. 16. 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. In my view, this definition is confusing since it restricts the act of penetration to insertion of a genital organ into another genital organ. The definition would not therefore strictly apply to the meaning of "penetration" as envisaged by section 5 of the Sexual Offences Act. I do not know whether it was an oversight on the part of the makers of the law or whether the legislature meant to restrict the definition of penetration to genital organs. In the circumstances, I am inclined to apply or adopt the ordinary and natural meaning of the word "penetrate" which implies to enter into; to make way into the interior of or to pierce. 17. The Court of Appeal in the case of John Irungu v Republic, [2016] eKLR pronounced itself on the essential ingredients of the offence of sexual assault as follows: “ …. Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person, or even by objects manipulated for that purpose.” 18. On the element of penetration, PW1 gave a clear and detailed account. She testified that on the material date the appellant inserted her fingers in her own words “hapa pa kususu” she states she felt so much pain and informed her grandmother. 19. This direct evidence of penetration was corroborated by the medical report produced by PW2, Edith Kerubo, a clinician at Nairobi Women’s Hospital. The P3 form and accompanying clinical notes https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4646/eng@2026-04-09 3

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recorded a recently torn hymen with irregular margins, redness of vaginal walls at 6,7 and 8 o'clock. These findings were consistent with recent penetration and supported PW1’s account of the act. 20. On identification, PW1 was resolute that the perpetrator was the appellant, whom she knew well as Mercy. She provided a consistent and unshaken narrative of the incident throughout her evidencein-chief and under cross-examination. PW3 and PW4, her grandmother and mother respectively, confirmed that the appellant was their house help and positively identified her as the perpetrator. 21. The appellant was placed on her defence and gave her sworn testimony. She testified that she was employed as a house help and took care of the minor for 5 months. She denied committing the offence and stated that the reason why she was arraigned in court is because she wanted to quit her employment and gave notice of the same to PW3, who didn’t seem happy by the news. She later arrested and learnt of the charges at the police station. 22. During cross-examination, she states she refused to buy TV from PW3 and wanted to quit is when she became annoyed and she left the child was okay. 23. DW2, Desmond Kiptoo, husband to DW1, gave his sworn testimony that the allegations against the appellant are not true. 24. The trial court rejected the appellant’s defence as a mere denial. This court similarly finds that the prosecution proved its case beyond a reasonable doubt. T.P.’s testimony was truthful, and the prosecution’s evidence was sufficient. 25. Accordingly, the conviction for sexual assault was proper and is upheld. 26. On the sentence, section 5(2) provides that a person who commits an offence of sexual assault is liable to imprisonment for a term of not less than ten (10) years, which may be enhanced to life imprisonment. 27. The appellant was sentenced to ten (10) years imprisonment. During sentencing, the court considered the pre-sentence report, the appellant's mitigation, and that she was a first offender and sentenced the appellant accordingly. The court also considered the three months spent in remand custody. In the premises, I see no reason to interfere. 28. In the end, the appeal is found to be lacking in merit and is dismissed in its entirety. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF APRIL 2026 D. KAVEDZA JUDGE In the presence of: Appellant Present Mr. Mutuma for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4646/eng@2026-04-09 4

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