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EVIDENCE The Prosecution Case 5. PWI TVN testified that sometime in April 2023, the Accused Person, who is well known to her, went to their home to fetch water while her parents were aware when he told her that he loved her. The Accused Person also went to their home on a certain Sunday when he again told her that he loved her. 6. She informed her parents about the Accused Person’s advances. Her parents informed Mohammed (DW2) to warn the Accused Person. The Accused Person stopped making the advances for some time. 7. The Accused Person continued with the advances later when she accepted to be his girlfriend. The Accsed Person thereafter requested to have sex with her but she refused and informed her mother. Her mother told DW2 to warn the Accused Person and bar him from accessing their home. 8. She recalled that on 26th April 2025, she carried water to the bathroom to bathe. She decided to go chase chicken from their maize and beans farm before bathing when the Accused Person called her out from a napier farm and told her: “Kwa nini mamako hataki tukuwe marafiki…” The Accused Person then grabbed her, closed her mouth and led her to the napier plantation where he forced her to have sex with him. 9. Her sister saw them going to the napier plantation with the Accused Person. Her sister stopped a bodaboda rider not known to her and told her what was happening in the napier plantation. The Accused Person fied from the scene on seeing the bodbada rider. 10. She left the napier plantation while bleeding from the mouth and vagina. She informed her mother about the incident. The matter was reported to the police, where she was referred to the hospital for treatment. 11. She also stated that she was born on 14th November 2024. She identified the scene photos, her birth certificate, treatment notes, and her P3 form. 12. She stated in cross-examination that she could not scream since the Accused person had threatened her and had covered her mouth using his hand during the incident. She also stated that she was treated at Mechimeru Hospital and Bungoma County and Referral Hospital. 13. PW2 VML is PW1’s father. He recalled that PW1’s mother called her on 26th April 2025 at around 2145hrs when he was at his second wife’s home and informed him that the Accused Person had defiled PW1. 14. He went to PW1’s home the following morning at 0600hrs when PW1 told him that the Accused Person had defiled her the previous day after dragging her into a napier plantation. He noticed that PW1 could not walk properly. 15. He added that he reported the incident to the police, who referred PW1 to Mechimeru Hospital for medical attention. He added that PW1 was also treated at Bungoma County Referral Hospital. 16. In cross-examination, he denied hatching a plan with his wife to implicate the Accused Person in this case. He added that he was aware that the Accused Person works in a bakery, and that the Accused Person used to fetch water for the bakery from his home. 17. In re-examination, he denied having prior difierences with the Accused Person. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/594/eng@2026-05-06 2

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18. PW3 Bramwel Wafula is a Clinical Oficer at Bungoma County Referral Hospital. His testimony was that PW1 visited the facility on 27th April 2025 with a history of having been defiled by a person well known to her on 26th April 2025 at around 1400hrs. 19. His examination revealed that PW1’s vaginal walls had injuries around the 3 o’clock and 9 o’clock regions. Her hymen was missing and old. 20. He produced PW3’s P3 form and treatment notes as exhibits. He took the position that PW1 had been defiled through penetration of her vagina. 21. He further stated in cross-examination that PW1’s vaginal injuries were recent. 22. PW4 No. 7xxx6 PC Peter Nderitu investigated this case. He recalled that on 27th April 2025, he received a report from PW2 who told him that PW1 had been defiled by a person known to her. 23. He issued PW1 with a P3 form. He visited the scene and took photos. He also obtained PW1’s birth certificate from her parents, which showed that PW1 was born on 14th November 2024. 24. He produced a copy of PW1’s birth certificate serial number 000269XXX, scene photos, and certificate of print as exhibits. 25. In cross-examination, he stated that he concluded that the Accused Person was the perpetrator since PW1 positively identified him, and that the medical evidence proved that PW1 had been defiled. The Accused Person’s Case 26. After considering the prosecution's case, this court, on 18th March 2025, placed the Accused Person on his defence. The Accused Person elected to give sworn testimony and call one witness. 27. DW1 Chrispus Kundu Kere recalled that on 26th April 2025, he went to work in the bakery at around 0600hrs. He worked in the bakery until 2100hrs when he left for home. He added that lunch was served in the bakery; thus, he never left the bakery from the time he began working in the morning until 2100hrs, when he went home. 28. He denied being in a relationship with PW1. 29. DW2 Mayeko Mohammed is the Accused Person’s employer. His testimony was that the Accused Person reported to the bakery on the date of the incident at around 0600hrs, where he worked until 2100hrs without leaving the bakery premises. He could not tell if the Accused Person committed the ofience after leaving his workplace. 30. He produced copies of the bakery’s attendance record for 26th April 2025 as exhibits. ANALYSIS AND DETERMINATION 31. In George Opondo Olunga v Republic [2016] eKLR, the court stated that the ingredients of the ofience of defilement were the age of the victim, penetration and proper identification of the perpetrator. 32. This court proceeds to determine whether the prosecution proved the above ingredients of the ofience beyond reasonable doubt sequentially. The analysis of the said ingredients of the main charge will also involve a consideration of the Accused Person’s defence. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/594/eng@2026-05-06 3

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Age of the Victim 33. PW1 and PW2 stated that PW1 was born on 14th November 2014. This oral testimony was corroborated by a copy of PW1’s birth certificate on record produced by PW4. 34. 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." 35. 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.” 36. 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. 37. In the instant case, the prosecution relied on PW1’s oral evidence on her age, PW1’s father’s oral evidence on PW1’s age, and a copy of PW1’s birth certificate placed before this court. 38. The Accused Person neither impeached the contents of the said copy of PW1’s birth certificate nor controverted PW1 and PW2’s oral testimony on PW1’s age. 39. It is against this background that this court holds and finds that PW1 was 10 years and 5 months old as of 26th April 2025 when she was reportedly defiled. This begs the question whether PW1 was 10 years old or 11 years old as of 26th April 2025. 40. 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.” 41. In the circumstances, and guided by the authority above, this court holds and finds that the PW1 was aged 10 years at the time of the incident herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/594/eng@2026-05-06 4

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42. The foregoing shows that the Accused Person ought to have been charged under section 8(1) as read with section 8(2) of the Sexual Offences Act. 43. Be that as it may, in the event this court convicts the Accused Person on the main charge, he will enjoy the benefit of a lesser sentence under the provisions of the law he was charged under, since sentencing him under section 8 (2) of the Sexual Offences Act will prejudice him for want of suficient notice. The Act of Penetration 44. PW1 testified that she had sex with the Accused Person on the date of the incident when the Accused Person reportedly dragged her to a napier plantation. PW1’s testimony on having sex with the Accused Person on the date of the incident remained unshaken even after cross-examination. 45. PW1’s testimony on engaging in sex on the date of the incident was corroborated by the medical evidence (Pexh. 1 & 2) placed before this court by PW3, who testified that PW1’s vagina presented recent vaginal injuries aged two days old on examination just some hours after the incident. He also stated that PW1 presented a torn and old hymen on examination. 46. There is no evidence on record 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)). 47. It is against this backdrop that this court holds and finds that the prosecution proved beyond reasonable doubt that a penis penetrated PW1’s vagina on the date of the incident. Identification or Recognition of the Ofiender 48. There is no dispute that PW1 and the Accused Person are well known to each other. 49. PW1 maintained throughout her testimony that she had sex with the Accused Person in a napier plantation during the day on the date of the incident. 50. The Accused Person, on his part, denied leaving the bakery before 2100hrs on the date of the incident. DW2 testified as much. The Defence produced the bakery attendance record for 26th April 2025 in support of the Accused Person’s testimony that he never left the bakery on the date of the incident before 2100hrs. 51. This court has had the benefit of perusing the bakery attendance records placed before this court by the defence. The first page of the said records shows that the Accused Person left the bakery at 1400hrs. The second page of the said records purports to introduce another overwritten attendance record showing that the Accused Person left the bakery at 2100hrs. 52. This court takes the view that the contradictions in the bakery attendance records placed before this court cast reasonable doubts on the authenticity of the said record. 53. In any event, the defence did not impeach the evidence led by PW1 and PW2 that the Accused Person used to fetch the bakery’s water from PW1’s home. This shows that even if this court were to believe that the Accused Person worked in the bakery until 2100hrs, it cannot be ruled out with certainty that the Accused Person never left the bakery to fetch water, or do other errands on the date of the incident. 54. Further, this court had the benefit of observing PW1’s demeanour during her testimony. She testified with clarity of thought and the innocence of a child by detailing the history of her relationship with https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/594/eng@2026-05-06 5

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the Accused Person from the date the Accused Person approached her for a relationship to the date the Accused Person defiled her.PW1 was a credible and trustworthy witness. 55. In addition to the above, there is no evidence of difierences or grudges between the Accused Person and PW1 or the Accused Person and PW2 to motivate PW1 to falsely accuse the Accused Person of the charges herein. 56. It is also noteworthy that PW1’s initial report to the police and the medic who examined her was that she had been defiled by a person well known to her. The importance of the complainant’s initial report to the police in identifying the perpetrator was reiterated in Tekerali s/o Korongozi & 4 Others vs. Rep (1952) 19 EACA 259, where the court stated thus: “ Their importance [of the first report] can scarcely be exaggerated, for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately made-up case. Truth will often [come] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others.” 57. PW1’s initial report to the police and the medic that she had been defiled by a person well known to her, which was made when the incident was fresh in her mind, proves that PW1 knew her assailant very well. Further, given that the incident happened during the day, there can be no room for mistaken identity. Simply put, this was an open and shut case of recognition. 58. For the reasons above, this court finds that the Accused Person was properly and positively identified as the ofiender/perpetrator. Accused Person’s Defence 59. This court has already considered the Accused Person’s defence while determining whether the prosecution proved beyond reasonable doubt that the Accused Person was the perpetrator of the main charge. 60. That defence was dislodged by the prosecution’s defence. The same is dismissed in its entirety for being a mere denial. 61. Before penning ofi, this court notes that PW1’s sister, one Brinner, who witnessed the Accused Person defiling PW1 in the napier plantation, was not called as a witness. Whereas this court appreciates that Brinner was a good witness who could shed more light on this case, the evidence on record, even in the absence of Brinner’s testimony, was adequate to convict the Accused Person (see Bukenya v Uganda, (1972) E.A. 549). DETERMINATION 62. 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 06TH DAY OF MAY 2026 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/594/eng@2026-05-06 6

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T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Maroro for ODPP Mr. Wafula for the Accused Person Accused Person C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/594/eng@2026-05-06 7

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