Republic v Omar Mohamed

6. PW3, GF, is the mother. She immediately proceeded home (to the scene) where she found the members of the public while with the accused person. The child victim was also still crying while inside the house. A toy was also found at the scene. The father to the victim was then also called. The police also. The child was then escorted to Hola County Referral Hospital for medical examination. 7. PW7, Mohamed Ali Mwenje, a Clinical Oficer, examined the victim and noted some bruises and tears at the anal region which were actively bleeding at the time. The external and internal anal sphincter muscles were loose. In his opinion, the child had recently been defiled. He produced the Medical Examination (P3) Report, the Treatment notes and the Post Rape Care Form as PExh. Nos 2, 3 and 5, respectively. 8. The accused had been re-arrested from the village by Police Oficers including PW6, No. 25XXXXX2 PC Suleiman Mohamed. While at the police station, the matter was extensively investigated by PW8, No. 11XXXX9 PC Matunga Victor. The recovered toy was produced as PEXH. No.1. Issues, Burden and Standard of Proof 9. It is trite law that the burden of proof is always on the prosecution to prove its case beyond reasonable doubt. The main issue for determination herein is thus a simple one, namely whether the prosecution has discharged this burden? 10. The ofiences herein are Defilement and Indecent Act. Defilement has been defined in section 8 of the SOA thus: ‘A person who commits an act which causes penetration with a child I guilty of an ofience termed defilement’. Justice George Dulu, in Jumaahiribaekomora Vrs Republic (High Court of Kenya at Garissa Criminal Appeal No. 53 of 2017, UR), at page 7, paragraph 9, held that in a defilement case, 3 elements are to be proved by the prosecution beyond reasonable doubt. They are firstly, the age of the complainant, secondly penetration, and thirdly the identity of the culprit. 11. Justice Majanja, in Peter Mokami Nahashon vrs Republic [2014] eKLR, stated as follows on the ofience of Defilement: 13. A person is said to have committed an act of defilement under section 8(1) of the Sexual Offences Act when the person commits an act which causes penetration with a child. ‘Penetration’ under section 2 of the Act, means ‘the partial or complete insertion of the genital organs of a person into the genital organs of another person (Emphasis supplied) 12. Indeed under section 2(1), SOA, penetration means the partial or complete insertion of the genital organ of a person into the genital organ of another person. Genital organs have been defined as the whole or part of male or female genital organs and, as is the case herein, include the anus. 13. Section 2(1) of the same Act defines indecent act to mean: …unlawful intentional act which causes – 14. (a) any contact between any part of the body of a person with the genital organs, breast or buttocks of another, but does not include any act that causes penetration; (b) exposure or display of any pornographic material to any person against his or her will. In the second charge, the prosecution was just therefore supposed to prove to the same standards of beyond reasonable doubt that the defendant herein intentionally touched the anus of the same complainant with his penis. https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/14/eng@2021-04-15 2

page 2 of 4

15. As noted herein, the burden of proof herein lies with the prosecution and going by how the case against the accused person herein proceeded in trial herein, and mainly the nature of the evidence adduced herein, I do not find any such burden that shifts to the defence except as the accused would have – which he did not – raised a defence under section 8(5) of the SOA. 16. The prosecution must therefore prove to the required standard of beyond reasonable doubt that the accused person herein committed the acts alleged in the charges and as elaborately defined and explained hereinabove. Determination 17. The accused person was seen by the witnesses herein while sexually defiling the complainant herein, a boy child. They were on a mat and the complainant was naked downwards thus exposing his genital for penetration. PW2 saw them 3m away and he confirmed that he saw the accused person herein while inserting his penis into the child victim’s anus. He went and called PW3 and PW4 who responded almost immediately and found when both the accused and the victim were at the scene. Whereas it is not clear whether PW3 and PW4 found them while still in the act, I find the direct evidence of PW2 when considered and corroborated by the medical evidence of PW7, that the child victim had anal bruises and tears which were then fresh, to prove to the required standard that the victim herein was forcefully penetrated, by the accused person herein, and in a manner as witnessed by PW2. 18. Before penetrating him, the accused’s penis had to and indeed touched the complainant’s anus. The age of the complainant was assessed scientifically and found to be 4 years. I thus find that all the essential ingredients or elements of the charges and the ofiences herein have been proved to the required standard of beyond reasonable doubt. I do not find any other evidence, material or fact that might make me doubt the evidence herein. I thus do hereby find the accused person herein guilty as charged and consequently pursuant to the provisions of section 215 of the Criminal Procedure Code, do hereby convict the accused person herein of the ofiences of Defilement contrary to section 8(1) as read with section 8(2) and Committing an Indecent Act with a Child contrary to section 11(1) of the SOA. DATED, SIGNED AND DELIVERED AT HOLA IN OPEN COURT THIS 15TH DAY OF APRIL, 2021. A. P. NDEGE PM In the presence of; Osman court interpreter Atika present for prosecution Accused person present Victim/ guardian absent. A. P. NDEGE PM 15/04/2021 Atika: 1st time ofiender Accused in Mitigation in Kiswahili: NIL https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/14/eng@2021-04-15 3

page 3 of 4

A. P. NDEGE PM 15/04/2021 CT: Accused person herein committed a serious ofience on a child of tender years. He did it on a boy child and hence against the ordinary course of nature. He appears unremorseful. I am aware of the principles of sentencing as enunciated in the Muruatetu case by the Supreme Court of Kenya as regards mandatory sentences. I however still do find that the accused person herein does not deserve any mercy at all. I thus do hereby sentence the accused person to serve life imprisonment in count 1. The second count appears to be a duplication of the 1st count. There could not have been penetration in the 1st count without the accused person touching the complainant’s genital/ anus. So as to avoid double jeopardy, I shall exercise my discretion and discharge the accused person under section 35(1) of the Penal Code in count 2. Right of Appeal 14 days. A. P. NDEGE PM 15/04/2021. https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/14/eng@2021-04-15 4

page 4 of 4