kemc-2025-00360

have her declared a hostile witness. The court then stood her down. When recalled, she confirmed that she knew the accused, a neighbour. On a day she did not specify, she went to church at 11.00 am and left at around 4.00 pm. A female friend (Ndanu) called her, and they went to visit their friend, the accused. She stayed at the accused’s home with his sister, Rhodah. It is recorded in the proceedings that “we went to Nathan’s bedroom where we had sex.” At about 10.00 pm, Ndanu and her boyfriend Nicholas arrived. They escorted them and went back to the accused’s house at 12. 00 am, where they spent the night. In the morning, they had breakfast at the accused’s brother’s home. The accused’s parents later told her she was being sought, and they went into the bush to hide. At about 10.00 am, she heard a knock on the door. She opened it, and members of the community police went in and beat the accused, as she stood outside. The police later took them to Vota Police Station, and then to Konza Police Station. A police oficer took her to Machakos Level 5 Hospital. 5. PW2 E.K., the complainant’s mother, stated that the child was born on 6th April 2007, but said the birth certificate has the wrong date. She has applied for a new birth certificate. She identified a birth certificate, an afidavit, a clinic card, and a baptismal card as proof of her age. She mentioned that the accused is her neighbour and his mother is a family friend. On 12th March 2023, the complainant did not spend the night at home. The following day, she traced her to the accused’s house at about 10:00 am. The accused’s mother had called her to say the complainant was at her son’s house. PW2 notified village elders to accompany her to the house. Both the complainant and the accused were taken to Vota Police Station. She stated that she did not speak to her daughter because she was angry. She had given her school fees, but she had gone to the accused’s house instead of school. She claimed the accused confirmed having had sexual intercourse with her daughter. 6. PW3 Paul Muema Mutua is the community police chair for the Vota area. He testified that on 13th March 2023 at about 10.00 pm, he received a call from another community police member. He told him that there was a schoolgirl who had been missing for two days and was believed to be in the accused’s house. He went to the house and found the accused and the complainant locked in. The OCS for Vota Police Station went to pick the accused and the complainant. 7. PW4 Dr Kithia Mutinda, an aesthetician at Machakos Level 5 Hospital, produced the P3 Form, PRC Form, and Social Worker’s report. He stated the alleged victim gave a history of defilement by a person known to her (her boyfriend). She claimed she went to her boyfriend’s house on 12th March 2023, at about 4.00 pm, and stayed there until 13th March 2023. She further stated that she had been engaging in sexual intercourse since 2022. At the time of examination, the complainant had changed her clothes. The hymen was torn, and there was a whitish discharge with no spermatozoa. She tested negative for pregnancy; urinalysis showed pus cells. When cross-examined, PW4 stated that there were no spermatozoa because the examination was three days after the alleged defilement. 8. On 22 August 2024, the court closed the prosecution’s case before the investigating oficer testified. Essentially, the documents marked for identification, such as the birth certificate, child health card, baptismal card, and an afidavit concerning the issue of age, were not produced. After complying with Section 200(3) of the Criminal Procedure Code, I delivered a ruling placing the accused on his defence. Defence Case 9. In his sworn defence, the accused denied committing the ofience. The accused stated that on 14th March 2023, he arrived home from doing casual jobs and was arrested. On 15th March 2023, he was taken to Konza Police Station and returned to Vota. He denied committing the ofience. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/360/eng@2025-11-13 2

page 2 of 5

10. When cross-examined, he stated that Nicholas Ndolo is his brother. He was living with him at the time of the arrest. He claimed his brother told him that the complainant had visited him. He was not at home then, as he had gone to work on a construction project. Submissions 11. The accused person’s final submissions contest the prosecution’s case on five key points: failure to prove the elements of the ofience, evidence obtained through coercion, contradictions, failure to call essential witnesses, and the prosecution’s burden of proof. 12. The accused argued that the case is filled with uncorroborated and contradictory testimony, and that the prosecution disregarded key legal safeguards, particularly regarding the standard of proof, age verification, identification of the perpetrator, and the element of penetration. The defence maintains that the prosecution failed to discharge its burden of proof beyond a reasonable doubt, citing the ‘Golden Thread’ principle established in Woolmington v DPP AC 462.1. Specifically, the submissions claim that the complainant’s recanted statement, obtained after being coerced to testify, demonstrates that the prosecution’s evidence is insuficient to sustain a conviction. Analysis and Determination 13. Upon careful evaluation of the evidence adduced and the final submissions profiered by the accused person, I frame the following points for determination: 1. Whether the prosecution discharged its burden of proving the complainant’s age as a minor (specifically within the 12-15 years bracket required for S. 8(3) SOA). 2. Whether the essential element of penetration was established beyond a reasonable doubt. 3. What is the legal efiect and probative value of the complainant’s evidence? 4. Whether the prosecution''s failure to call the investigating oficer necessitates the drawing of an adverse inference. 5. Whether the positive identification and connection of the accused to the specific sexual act alleged were proved. Proof of Age 14. Proof of age is required for a charge under Section 8(3) SOA, which explicitly applies when the complainant is between 12 and 15 years old. The accused contested this element in the submissions, arguing that the age was confusing and therefore uncertain. The facts on record show considerable disagreement regarding the complainant’s age. The charge sheet and medical documents stated that the victim was 15 years old, placing the ofience under Section 8(3) of the SOA. However, the complainant testified that she was born in 2007, making her approximately 16 years old at the time she gave evidence in September 2023. The complainant also stated she was a college student studying beauty therapy, suggesting she was possibly outside the 12-15-year age range, unless the prosecution argues that she dropped out after primary school to pursue college studies. 15. This confiict was compounded by the complainant’s mother (PW2), who, while confirming the 2007 birth year, testified that the Birth Certificate contained the ‘wrong date’ and that she had applied for a replacement, thereby weakening the credibility of the primary document relied upon. Furthermore, the documentary evidence intended to prove age — a birth certificate, clinic card, baptismal card, and https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/360/eng@2025-11-13 3

page 3 of 5

afidavit — lacked probative value, as they were only marked for identification and were never formally produced or admitted due to the investigating oficer''s failure to testify. Essentially, the court had no opportunity to see the documents. This procedural lapse weakened the prosecution’s case on the age element. I would have adopted a difierent perspective if the accused had not raised this relevant legal point in the written submissions. Proof of Penetration 16. The second essential element is penetration, which must be demonstrated through medical or other credible evidence. Penetration is defined in Section 2 of the Sexual Offences Act as: “...the partial or complete insertion of the genital organs of a person into the genital organs of another person.” This means the prosecution must prove actual insertion relating to the specific charge. PW4, Dr Kithia Mutinda, conducted the examination and recorded findings that included an “Hymen old, torn hymen, whitish discharge and no spermatozoa seen.” PW4 stated that the complainant provided a history confirming she had been engaging in sexual intercourse since 2022. Whether this amounted to defilement will depend on the broader evidence in the case regarding age and the general credibility of the complainant’s evidence. Credibility of the Complainant’s testimony 17. The complainant presented two mutually exclusive versions of events. First, she stated, ‘I do not know Nathan Mutunga. I have never seen him,” and refused to answer questions. Subsequently, after the prosecution had applied for her to be declared hostile and upon being recalled, she reversed her position, admitting she knew the accused and that they had sexual intercourse. 18. In the proceedings, the court noted that the witness refused to cooperate and required “persuasion” before testifying. Consequently, I cannot rely on the proviso to Section 124 of the Evidence Act, Cap 80, which permits a conviction in a sexual ofience case based solely on the victim’s testimony if the court is satisfied of the victim’s truthfulness. Given the complainant’s outright refusal to testify initially and her clear recantation of her statement, I cannot be assured that her subsequent testimony is truthful, credible, or reliable. Identification of the Accused 19. Given the failure to ascertain the victim’s age and the unreliability of the complainant''s evidence, I conclude that the prosecution has not met the burden of proving that the accused engaged in an act of defilement. It is conceivable they were indeed in a relationship and had sexual intercourse around the time of arrest or earlier. However, the complainant might have been a consenting adult. In any event, she stated that she was a college student. In the ordinary educational curriculum of this country, I do not expect a 15-year-old to be in tertiary education. There was no compelling evidence to rule out the possibility that she may have been over 18 at the relevant time. Disposition 20. In the premises, I find that the prosecution has failed to prove the charge of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, and the alternative charge of committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006, beyond reasonable doubt. I hereby acquit the accused of the charges under Section 215 of the Criminal Procedure Code and discharge him forthwith, unless he is otherwise lawfully detained for other reasons. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/360/eng@2025-11-13 4

page 4 of 5

DELIVERED, SIGNED AND DATED THIS 13TH DAY OF NOVEMBER 2025 C. C. OLUOCH CHIEF MAGISTRATE In the presence of: Prosecution Counsel- Ms Achieng Court Assistant- Catherine Accused- Present DATE: 2025-11-13 11:56:55 https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/360/eng@2025-11-13 5

page 5 of 5