Republic v Werema

6. JUDITH OLOO (a clinical ocer) (PW6) 4. The prosecution evidence is that PW1 told the court the victim is her daughter who is aged 9 years as she was born on 18/5/2022 as per certicate of birth which she produced as exhibit-1. PW3 evidence was that 27th June, 2026 she was in the land with her parents and siblings. Her mother PW1 told her to go and prepare tea. She went home and on arrival called out the name of the victim but she did not respond. She heard a knock in the tobacco house and she moved near. She found the victim hiding in the owers. PW3 entered inside and saw shoes on the ground and trouser with a belt hanging on the post. She also found Mwita with a short and she asked him what he was doing there but he kept quiet. 5. PW1 went and talked to the victim who told her that Mwita had done bad manners to her. She undressed the victim and saw blood in her vagina. She went and informed her parents PW1 and PW4. PW1 and PW4 came home, while at home Mwita came and when they asked him what had happened he started asking for forgiveness. 6. PW2 evidence was that she knows the accused as their family member. On 27/6/2026 at 9:00am she was at home when accused told her to follow him and they went to the tobacco house. The accused told her to remover clothes and lie down. The accused also removed his trouser. She lay down on the oor and the accused did tabia mbaya to her. He removed his short and shoes. He used his “dudu” for doing sexual intercourse which he inserted into her “susu’ which she uses for urination. That is when PW3 called out her name and accused hid himself in a corner as she went outside. 7. The matter was reported at Isebania police station and the victim escorted to Isebania Sub County Hospital where she was examined and treated. PW2 identied her treatment notes as PMFI-2, P3 Form as PMFI-3 and PRC Form as PMFI-4. 8. PW6 examined the victim on 27/6/2026 and found there was laceration on both labia majora and minora. The hymen was intact. She concluded that there was evidence of delement. She produced the treatment notes, P3 Form and PRC Form as exhibits 2, 3 & 4 respectively. PW5 investigated the case and charged the accused. The prosecution then closed its case. The Accused Defence Case 9. DW1 Charles Mwita Werema the accused gave unsworn defence and denied the charges. His defence was that it was the devil who did. He had worked for the complainant’s father for four months and he had not been paid. He kept promising him and when he followed up the issue, he turned on him saying that he had deled his daughter. The complainant’s father wants to take their land that is why he framed him and that is why he said he be forgiven when he testied. The victim’s sister also framed him. The accused then closed his defence case. The Law 1O. Section 8(1) as read with Section 8(2) of the Sexual Offences Act establishes the oence of delement as follows: “ 8(1) A person who commits an act which causes penetration with a child is guilty of an oence termed delement. 8(2) “A person who commits an oence of delement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/833/eng@2026-08-25 2

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The Burden of Proof 11. The prosecution bears the burden of proof, which proof is beyond any reasonable doubt. The standard of proof in criminal case such as this one must be beyond reasonable doubt enough to lead to a conviction. Our criminal justice system is pegged on article 50(2) (a) of the Constitution which guarantees individual freedoms under the bill of rights, particularly, the aspect of innocence until proven guilty. It cannot be gainsaid that this burden of proof rests on the state and does not shift to the accused. 12. The degree of proof in criminal cases was properly established in the classicus English case of Woolmington v DPP 1935 A C 462. Similarly, in Bakare v State 1985 2NWLR, Lord Oputa of the Supreme Court of Nigeria adopted the principle as follows at page 465: “ Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the oence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”. 13. Where there is doubt of any kind in a criminal matter, and evidence which would likely advance the case of the prosecution is not adduced, the eect of such an occurrence would go to the benet of an accused person. The Elements of the oence of delement 14. The specic elements of the oence delement arising from Section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: a. Age of the complainant; b. Proof of penetration in accordance with Section 2(1) of the Sexual Offences Act; c. Positive identication of the perpetrator. Age 15. Age of the victim of delement is essential element because delement is a sexual oence committed against a child who under the Children’s Act is a person below the age of 18 years. In addition, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed as per the penalty clauses in the Sexual Offences Act. The younger the child the more severe the sentence. 16. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of delement: “ ... the question of proof of age has nally been settled by recent decisions of this court to the eect that it can be proved by documents, evidence such as a birth certicate, baptism card or by oral evidence of the child if the child is suciently 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.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/833/eng@2026-08-25 3

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17. On this issue the particulars of the charge sheet indicate that the victim is aged 9 years as at the time of the alleged oence. The complainant mother PW1 testied that the victim is aged 9 years as she was born on 18/5/2022. PW1 produced the certicate of birth as exhibit-1 showing the victim was born on 6/8/2017. I have seen and read the certicate of birth and the date of registration is 18/5/2022. This shows that the victim was aged 9 years at the time of the alleged oence. I nd the accused was properly charged under section 8(2) of the Sexual Offences Act. Penetration and identication of the perpetrator. 18. The second element is penetration. Section 2(1) of the Sexual Offences Act denes penetration as: “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sucient to determine whether penetration occurred. 20. In our instant case the prosecution relied on the evidence of the victim and the medical evidence and PW3. The victim who testied that the accused called her and told her to follow him. She complied and they went to the tobacco house, where accused told her to remover her clothes and lie down. She removed her trouser and accused also removed his trouser. The accused told her to lie down on the oor, which she did. The accused then removed his short, shoes and did bad manners to her. The victim went to describe the bad manners by stating that the accused used his “dudu” for doing sexual intercourse which he inserted into her “susu” which she uses for urination. That the accused lay on her while he was doing bad things to her. When her sister M called out her name the accused hid himself in a corner as she went to hide in the owers. 21. PW3 evidence was to the eect that she found accused in the tobacco house having removed his trouser and shoes and was wearing a short. When she asked accused what he was doing there he kept quiet. Thus, the evidence of the victim and PW3 places the accused at the scene which is in the tobacco house. The accused did not challenge this evidence in cross examination and even in his defence. 22. The medical evidence shows that there was laceration on both labia minora, though the hymen was intact. PW6 concluded that there was partial penetration that caused the lacerations. Is this evidence enough to prove there was penetration. 23. The minor used the word dudu in describing the accused’s genitalia and “susu” her genitalia, and the question is whether that description was sucient to identify the accused’s penis and her vagina. The Court of Appeal in Muganga Chilejo Saha v Republic [2017] eKLR discussed the use of various terms used in description of genital organs and reviewed various cases where the terms had been used and held that: “ Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a court room. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/833/eng@2026-08-25 4

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v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of delement.” 24. In this case, I nd the description by the minor of the ordeal consistent with the nding by the Court of Appeal in the above case and therefore inclined to nd that the minor’s narration coupled with the medical evidence shows that the minor was deled notwithstanding the fact that the hymen was intact. The minor’s narrative was cogent and not shaken on cross examination. 25. The fact that the hymen was intact does not itself imply that there was no penetration. Penetration encompasses partial or complete insertion of the genital organs of a person into the genital organs of another person. 26. The complainant narrated to the court how the accused sexually assaulted her. She stated that he inserted his dudu into her “susu” she uses for urination. The clinical ocer testied that there was partial penetration that caused the lacerations on the both labia minoras. This court is of the view that the evidence given by the complainant was suciently corroborated by the lacerations on both labia minoras. The evidence of PW3 also corroborates the evidence of the victim as she found the accused half naked, having only a short and his trouser hanging on post and having removed his shoes. The evidence of the victim shows that the accused was in the very act when her sister called out her name. This perhaps explains why the hymen was not broken as he had not obtained full penetration. It is therefore clear that the evidence adduced clearly showed that the prosecution did indeed prove penetration. 27. Section 2 of the Sexual Offences Act species that penetration can be partial or complete. And in the case of George Owiti Raya vs Republic [2013] eKLR; it was held that: “ There was supercial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul smelling discharge seen on the genitalia...it remains therefore that there can be penetration without going past the hymen membrane…It matters not whether the complainant’s hymen was found to be intact, suce it that there was evidence of partial penetration.” 28. It follows then that penetration need not be complete. This was determined in the case of Mark Oiruri Mose vs. Republic [2013] eKLR where the Court held thus: “ In any event the oence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete sexual act during commission of the oence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the oence is demonstrated, and penetration need not be deep inside the girl’s organ.” 29. In eect, it is evident that the establishment of penetration does not require that it be demonstrated that the hymen was ruptured. Bruises, abrasions and injuries in the internal or external area of the vagina are in my view, sucient proof of penetration either partial or complete. The fact that her hymen was intact did not in any way negate the act of penetration. The complainant was truthful in her testimony, cogent and reliable as she was able to narrate how the ordeal happened to her. Her evidence was not challenged and/or shaken in cross examination. The complainant was able to identify the accused as the assailant as they are family members, neighbours and accused was working for the victim’s father. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/833/eng@2026-08-25 5

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30. The evidence of the complainant complied with the provisions of Section 124 of the Evidence Act which states thus: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an oence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual oence the only evidence is that of the alleged victim of the oence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satised that the alleged victim is telling the truth.” 31. The above section means that an accused person can be convicted on the sole testimony of a victim in the absence of a medical report and that such evidence does not need further corroboration. Whether the Defence placed doubt on the Prosecution’s case. 32. I have considered the defence and I have noted that it did not place any doubt on the Prosecution’s case. The Prosecution was able to place the accused and complainant in the same room and was able to prove all the ingredients of delement beyond reasonable doubt. The accused in his defence blamed the devil for what he did, meaning he committed the oence as charged. There is nothing on the accused’s defence that shook or hurt the Prosecution’s case. 33. In conclusion I nd the accused guilty as charged with the main oence of delement contrary to section 8(1) as read with section 8(2) of the sexual offences Act and nd him to be in conict with the law pursuant to section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 25TH DAY OF AUGUST, 2026 VIRTUALLY VIA MICROSOFT TEAMS J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel Mr. Enock/Christine………… Court Assistant Accused …………….. Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/833/eng@2026-08-25 6

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