Republic v Wafula alias Goddy (Sexual Offence E008 of 2025) [2025] KEMC 408 (KLR)

4. This court proceeds to summarize and analyze the evidence placed before this court by the prosecution and the defence. Evidence The Prosecution Case 5. PWI E.N.K testimony was that she is a 15 year old girls schooling in grade 8 at Itunya Primary School. She testified that on the night of the incident while sleeping in a dress in their sitting room, she felt someone sleeping on top of her. She woke up only to find that it was the Accused Person (her mother’s lover) sleeping on top of her. She also noticed that her dress had been lowered to her knees and that her pant had been removed. She then saw the Accused Person walking back to his bedroom. 6. She switched on the lights then wrote a letter/note addressed to her mother stating how shameful it was for her ‘kulala na babangu kwa godoro moja na blanketi moja…’ She began crying when the Accused Person told her mother to check on her. She told her mother to read the letter/note that she had addressed to her. Her mother told her to sleep for her to address the issue the following morning. Her mother told her not to share whatever had happened with anyone. 7. She went to school the following morning when she started crying. Her classmates referred her to teacher SNW (PW 2). She shared with PW2 whatever had happened to her the previous night. The matter was reported to Mayanja Police Station. She was treated at Bungoma County Hospital. 8. PW2 SN is a teacher at [Particulars Withhheld] School. Her testimony was that on 24th January 2025 at around 1130hrs while in school, she realized that PW1 was unsettled. The school’s deputy head teacher requested her to talk to PW1. 9. She spoke to PW1 who told her that she had been defiled the previous night in their house by Gody (her mother’s boyfriend). She added that PW1 told her that she had informed her mother about the incident through a note but her mother had told her not to disclose to anyone whatever had happened. She updated the deputy headteacher about her talks with PW1 when the deputy headteacher called PW1’s guardian (PW3) to the school. 10. PW3 went to the school when the matter was handed over to him. 11. PW3 RJM stated that he is a brother to PW1’s late father. His testimony was that on 24th January 2025 at around 1300hrs, he received a called from EM, the deputy Headteacher [Particulars Withhheld] Primary School, who told him to proceed to the school since there was an emergency. 12. He went to the school when EM told him that PW1 had told PW2 that she had been defiled by her mother’s lover called Gody. She was advised by the teachers to report the matter to the police and take PW1 to hospital. He reported the matter to the police and thereafter took PW1 to Bungoma County Hospital for medical attention. 13. He added that PW1 was born on 04th January 2010 and that PW1’s had become uncooperative in pursuing this matter. 14. PW4 Dr. Claudia Wafula Wenwa is a medical oficer at Bungoma County Hospital. 15. He stated that on 24th January 2025, PW1 visited the facility with a history of having been defiled by her mother’s lover in their sitting room that day at around 0100hrs. He observed PW1 who looked stressed. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/408/eng@2025-05-21 2

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16. PW1’s medical examination revealed that PW1’s pubic region was tender, her hymen was missing with healed bruises, labia majora and labia minor had tenderness and that PW1’s lower region of the vagina had slight tenderness. He thus formed an opinion that PW1 had been defiled. 17. He produced PW1’s treatment notes (Pexh.3), P3 form (Pexh.2), and lab results form (Pexh.4) as exhibits. 18. PW5 No. 83992 CPL Kevin Onyango of Mayanja Patrol Base and the Investigations Oficer herein conducted investigations into this matter. 19. He visited the scene of crime, recorded witness statements, issued PW1 with a P3 form, and obtained PW1’s note/letter (Pexh.5) . He produced a copy of PW1’s birth certificate serial number 7842332 (Pexh.1) as an exhibit. The Accused Person’s Case 20. At the close of the prosecution case, this court placed the Accused Person on his defence. This court explained to the Accused Person his rights under section 211 of the Criminal Procedure Code. The Accused Person elected to give sworn testimony. He did not call any witnesses. 21. The Accused Person testified that he slept at PW1’s home on the date of the incident. He slept with PW1’s mother in the bedroom while PW1 slept in the sitting room. 22. He added that at around midnight, while asleep, he heard PW1’s mother calling out PW1 and asking her if she was unwell. They all woke up. PW1 was standing outside the house. PW1’s mother called her back to the house, thereafter, they continued sleeping. He also stated that on that day, PW1 told her mother that he had defiled her. 23. The Accused Person denied committing the ofiences herein. He attributed the charges to PW1’s uncles, who were against him cohabiting with PW1’s mother. He accused PW1’s paternal uncles of coaching her to implicate him in this case Analysis And Determination 24. The ingredients of the ofience of defilement are: the age of the victim, penetration and proper identification of the perpetrator – see George Opondo Olunga v Republic [2016] eKLR. 25. This court will proceed to determine sequentially whether the prosecution discharged its burden of proving the above ingredients of the charges facing the Accused Person. Age of the Victim/Complainant 26. PW1 stated that she was fifteen (15) years old. PW3 (PW1’s guardian) stated that PW1 was born on 04th January 2010. A copy of PW1’s birth certificate serial number 78xxx32 (Pexh. 1), placed before this court by PW5 corroborated PW1 and PW3’s oral testimony on PW1’s age. 27. and PW2 stated that PW1 was born on 03rd July 2009. This oral testimony was corroborated by a copy of PW1’s birth certificate serial number 17xxxx61 (Pexh.1) produced by PW5. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/408/eng@2025-05-21 3

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28. Rule 4 of the Sexual Ofiences Rules of Court Rules provides that: “ When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document." 29. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows on how a complainant’s age can be proved in a defilement case: “ ... the question of proof of age has finally been settled by recent decisions of this court to the efiect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is suficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 30. The authorities cited above show that age can be proved by credible documents like a birth certificate and even the oral evidence of a child of suficient intelligence, as well as the oral evidence of a child’s parent or guardian. 31. The Accused Person neither impeached the contents of the said copy of PW1’s birth certificate nor controverted PW1 and PW3’s oral testimony on PW1’s age. 32. In the circumstances, this court holds and finds that PW1 was 15 years and 20 days old as of 24th January 2025 when she was reportedly defiled. This begs the question whether PW1 was 15 years old or 16 years old as of 24th January 2025. 33. The Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR cited with approval in CD V Republic (Criminal Appeal 31 Of 2022) [2023] KECA 431 (KLR) settled the question above by rendered itself thus : Section 2 of the Interpretation and General Provisions Act defines “year” to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example,10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year. Back to the Sexual Offences Act, a victim who is days or months above 11 years will be treated as 11 years old so long as he or she has not attained 12 years of age. On the same reasoning, the victim in this case who was 15 years, 6 months and 13 days old must be treated to be 15 rather than 16 years old.” 34. Guided by the authority above, this court holds and finds that the PW1 was aged 15 years at the time of the incident herein. The Act of Penetration 35. PW1 testified that the Accused Person defiled her on the date of the incident. she shared her ordeal with her mother through a letter/note (Pexh.5) on the date of the incident. 36. PW1 also opened up to her teacher (PW2) about the incident when she went to school in the morning after the incident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/408/eng@2025-05-21 4

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37. The Accused Person confirmed that he was aware that PW1 told her mother that he had defiled her. 38. It is noteworthy that PW1 was examined at Bungoma County Hospital by PW4 just some hours after occurrence of the alleged incident. PW1’s treatment notes (Pexh.3) and P3 form (Pexh.2) when read together show that PW1 presented vaginal injuries consistent with defilement as ably stated by PW4. The tenderness in PW1’s vaginal area and lower abdomen gives credence to a defilement that happened just some few hours before her medical examination. 39. No evidence was placed before this court to show that PW1’s hymen was broken in any other manner other than by sexual intercourse. Further, no evidence was placed before this court to show that PW1 was born without a hymen (See Kamau v Republic (Criminal Appeal E040 of 2020) [2024] KEHC 3772 (KLR)). 40. For the reasons above, the only irresistible conclusion to be drawn is that PW1’s testimony on having been defiled on the date of the incident was corroborated by the medical evidence (Pexh. 2 & 3) placed before this court by PW4. Therefore, this court finds that the prosecution proved beyond reasonable doubt that PW1’s vagina was penetrated by a penis. Identification or Recognition of the Ofiender 41. It is common ground that PW1 and the Accused Person are persons well known to each other. 42. PW1 testified that the Accused Person defiled her on the night of the incident. the Accused Person confirmed having spend a night in PW1’s home on the night of the incident. the Accused Person also corroboarated PW1’s testimony that she woke up on the night of the incident and engaged her mother. The Accused Person added that PW1 told her mother that he had defiled her. 43. PW1’s identity of whoever defiled her on the night of the incident was also corroborated by the undated note/letter (Pexh.5) she addressed to her mother. 44. It is also noteworthy that the morning following the incident, PW1 told PW3 and PW4 that she had been defiled by the Accused Person. 45. There was no indication that on the date of the incident PW1’s was broken into by any person who could have possibly defiled her and fied. The Accused Person was the only man in that house when PW1 was defiled. The Accused Person placed himself at the scene of crime. 46. This is a clear case of recognition hence this court’s finding that the Accused Person was properly identified as the ofiender/perpetrator. The Accused Person’s Defence 47. This court has duly considered the Accused Person’s defence. The Accused Person claimed that PW1 had been coached by her paternal uncles to implicate him in this matter since her paternal uncles were uncomfortable with him cohabiting with PW1’s mother. 48. This court notes that the Accused Person did not cross-examine PW1 and PW3 along these lines. Further, as at the time PW1 was informing her mother, writing the letter/note (Pexh.5), and talking to PW2 about the identity of the Accused Person, immediately after the incident, PW1 had not met her paternal uncles for coaching as alleged by the Accused Person. 49. Given the above, the Accused Person’s defence is dismissed for being a mere denial and an afterthought that did not cast any reasonable doubt on the prosecution’s case. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/408/eng@2025-05-21 5

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50. Before penning ofi, this court notes that PW1’s mother was not called as a witness. She was a key witness. However, PW3 suficiently explained her absence. She was uncooperative in pursuing this matter. It is the law that the prosecution is not supposed to call a superfiuity of witnesses but only witnesses suficient to prove their case. The failure to call PW1’s mother as a witness was not fatal to the prosecution’s case. The evidence on record, even in the absence of PW1’s mother’s testimony, was suficient to prove the prosecution’s case against the Accused Person to the required standard. Determination 51. The upshot of the foregoing is that: a. The Accused Person is convicted under section 215 of the Criminal Procedure Code for the ofience of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 003 of 2006; and b. The alternative charge is moot. JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 21ST DAY OF MAY 2025 T. O. OMONO RESIDENT MAGISTRATE In the presence of: Mr. Minishi for ODPP C/A: Albert Accused Person https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/408/eng@2025-05-21 6

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