Republic v Sirengo

her. The following day she decided to leave her home and went to the accused person’s home. She asked him to take her to Busia but he was not able to as it had gotten late. They went to sleep with the accused person sleeping on the couch and she sleeping on the bed. At night, the accused person joined her and told her that there were mosquitoes on the couch. That they had sex with the accused person and she bled. She felt pain and told the accused person that it was her rst time. The accused person told her to go bathe and apologized. She told the court that her mother was already suspecting her of being with the accused person and she wanted to go to Nairobi and come back in December to continue with her studies. She worked as a house girl for some time and later returned home. She was taken to Kocholia Hospital upon her return and she told the court that she was 16 years old having been born on 22nd April 2009. That he knew the accused person who used to deliver items to her mother’s hotel since the year 2022. 7. On cross-examination she testied that the accused person assisted her as a boda boda rider to book a vehicle to Nairobi. That she initially went with her sister to the accused person’s house and who left. That in the evening the accused person rst slept on the couch and joined her in bed. That she could not remember the exact time the accused person joined her in bed. 8. There was no re-examination for this witness. 9. PW2 was one A.N who testied that on 28th October 2024 she left work at 2000hours and found the complainant with some girls who she had told her not to interact with. She beat her and the following day she was informed that her daughter had planned to go to Busia to her uncle’s house. That she reported to the Assistant Chief and in November 2024 her daughter called her and informed her that she was in Nairobi. She sent her transport and went to report to the police station that she had found her daughter. That on interrogating her, she told her that she had met the accused person at the stage and who took her to his house. That in the wee hours of the night, the accused person had sex with her. That she also took the child to hospital for examination. That her daughter was born in 2009. That she had no dispute with the accused person. 10. On cross-examination she testied that she got to know the accused person in 2024. That the complainant told her that the accused person took her to the stage to board a vehicle to take her to Nairobi. 11. There was no re-examination for this witness. 12. PW3 was one CPL Nelly Naliaka the investigating ocer who testied that on 2nd November 2024 a case of delement was minuted to her and she recorded the statement of the complainant and her mother. She arrested the accused person on 24th November 2024. She established that the complainant was 15 years old having been born on 22nd April 2009. That she did not visit the scene and the mother to the complainant did not take her despite constant promises to do so. That she did not know why she was evasive. That she was not aware whether the accused person took the child to Nairobi. 13. On cross-examination she testied that she did not visit the scene as the mother to the complainant was evasive. That she asked her to then avail the child which she also failed to. That the complainant was also availed having been taken to hospital and she could not tell how long ago the incident had occurred. 14. Despite numerous opportunities granted to the prosecution to avail the clinical ocer, he was not availed to testify and the prosecution closed its case. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/876/eng@2026-09-10 2

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15. Pursuant to a ruling delivered on 12th February 2026, the accused person was placed on his defense pursuant to the provisions of the Criminal Procedure Code and he elected to give sworn evidence and call one witness. 16. He testied as DW1 and told the court that on 30th October 2024 the complainant went to his home and he was planning to go for “chama”. That he found the complainant with his wife. That he told her to sleep on the seat with one Aziza and that the following day he would take her to Busia stage. She called her mother who told her to go on with her prostitution and she decided to go to her Aunt in Nairobi He continued going about his business and he was later called by an ocer and informed that he had a case of delement. That the mother to the victim later told him that he had left her for another woman and she was going to revenge. That he has thus been framed in the instant case. 17. On cross-examination he testied that he did not have sex with the girl as she was with his wife. That the complainant’s mother was speaking about a wife that he had married and who was his witness in this criminal trial. 18. DW2 was one Vivian Emokol and wife to the accused person who testied that on 30th October 2024, the complainant went to their home and was looking for the accused person. She told her that he was not there and advised her to go home. That she had a dispute with the mother to the complainant which was resolved by the village elder. That at 2000hours, the complainant was still at their home but she entered their room and slept. She later heard that the accused person had been accused of delement. 19. On cross-examination she testied that the complainant slept on the seat while she slept with the accused person in their bedroom. 20. This marked close of the defense case. The matter was subsequently xed for judgment on 13th August 2026 when the judgment was not ready and was subsequently deferred to 10th September 2026. Analysis and Determination 21. The accused is charged with delement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. The prosecution is required to prove beyond reasonable doubt the complainant's age, penetration and the identity of the perpetrator. In the present case, the court is satised that the complainant was aged 15 years the ingredient of age having been proven by production of a birth certicate as Exhibit 1 and evidencing that the complainant was born 22nd April 2009. The incident is alleged to have occurred on 29th October 2024.Simple arithmetic would show that at the time of the alleged incident the complainant was 15 years 8 months. The accused person and the complainant in their evidence told the court that indeed the complainant spent the night in his house. The issues of age and identication therefore require no further consideration. 22. The gravamen of the charge is, however, penetration. Section 2 of the Sexual Offences Act denes penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” Thus, the prosecution was required to establish that the accused caused penilevaginal penetration. 23. PW1's evidence regarding the alleged sexual act is that the accused joined her in bed, that “they had sex,” that she experienced pain and that she bled. I have carefully considered that evidence. The expression “had sex”, standing alone, does not necessarily establish the statutory denition of penetration. Sexual activity may encompass conduct which does not necessarily involve penile-vaginal penetration. This distinction was recognised in Badi Hamadi Hamisi v Republic [2018] KEHC 5413 (KLR), where the court held that an assertion that the parties “had sex”, without evidence as to penetration, was insucient to establish that ingredient. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/876/eng@2026-09-10 3

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24. I am alive to the fact that the prosecution is not required to prove complete penetration, ejaculation, removal of clothing or injury. Even slight or partial penetration is sucient in law. Further, medical evidence is not mandatory and a conviction may properly rest upon the evidence of the complainant where the court believes her and records its reasons pursuant to the proviso to section 124 of the Evidence Act. 25. The diculty in the present case is not therefore the absence of medical evidence per se. It is that the direct evidence itself does not suciently describe or establish the act which the law denes as penetration. PW1 did not state that the accused inserted his penis into her vagina, whether partially or completely. She did not describe how the alleged sexual act occurred. There is no evidence as to whether the parties removed or displaced their clothing or undergarments, nor any other sensory description from which the court can safely conclude that penile-vaginal penetration occurred. The evidence therefore falls short of that degree of specicity. 26. The allegation that PW1 experienced pain and bleeding is relevant and has not been disregarded. However, those facts, do not establish what caused the pain or bleeding and cannot, in themselves, constitute proof of the statutory act of penetration. The clinical ocer who might have provided independent evidence concerning the complainant's physical condition was not called despite the prosecution being aorded opportunities to avail that witness. 27. I have also considered the surrounding circumstances. The investigating ocer testied that the complainant's mother did not take her to the scene despite repeated requests. There is also evidence of a prior dispute, although its precise nature and signicance are contested. These matters do not, in themselves, prove fabrication. However, they are relevant circumstances when the court is assessing whether the prosecution evidence, viewed as a whole, eliminates reasonable doubt. 28. I am mindful that section 124 permits a conviction upon the evidence of a complainant in a sexual oence without corroboration. However, that provision does not dispense with the requirement that the court be satised that the evidence proves the oence beyond reasonable doubt. The court must rst be satised that the complainant's evidence is suciently clear and credible to establish the particular ingredient in issue. 29. In the nal analysis, I nd that the prosecution has established that the complainant was a child aged 15 years and that the accused was the person she was with on the material night. However, the evidence does not establish beyond reasonable doubt that the accused caused penetration as dened by section 2 of the Sexual Offences Act. The court cannot ll that evidential gap by speculation or by assuming that the complainant's use of the expression “had sex” necessarily meant penile-vaginal penetration. 30. The prosecution has consequently failed to prove one of the essential ingredients of the oence beyond reasonable doubt. The accused is therefore entitled to the benet of that doubt. 31. On the alternative charge of committing an indecent act with a child, it is the observation of the court that the complainant did not testify that the accused person touched her vagina with his penis, nor did she describe any conduct from which such an act can safely be inferred. The prosecution is bound by the particulars of the charge and must prove the essential facts which was not done. It is therefore the nding of the court that the prosecution equally failed to prove the alternative charge to the required threshold of beyond reasonable doubt. 32. In the present case, and upon careful evaluation of the entire evidence on record, the court is not satised that the prosecution has proved it case to the required threshold of beyond reasonable doubt and the accused person is acquitted on the oence of delement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act 2006 and the alternative charge of committing an indecent act https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/876/eng@2026-09-10 4

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with child contrary to section 11(1) of the Sexual Offences Act under Section 215 of the Criminal Procedure Code. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 10TH DAY OF SEPTEMBER, 2026. In the Presence of Arafat Sirengo the Accused Person Mr. T. Rotich Prosecution Counsel Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE 10.09.2026 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/876/eng@2026-09-10 5

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