Republic v Osakina

bad manners to her. That the accused person touched her private parts and that he also used his private part and did not use any protection. That it was her rst time and she felt pain. She saw blood after the incident. That the accused person used to pay her fees. She went to bathe and in the process her other uncle Gad came and she went to hide under the bed. That the house had a sitting room and bedroom and the accused person had done bad manners to her in the bedroom. Her uncle Gad saw her and called the Chief. That her uncle beat her and upon arrival of the Chief and the Assistant Chief she proceeded to the Police Station. The accused person was arrested and she was seen at a hospital in Kocholia and examined in the presence of one Aunty Catherine. She told the court that she was born on 5th May 2010. That the accused person promised to keep paying her fees so long as she had sex with him. 7. On cross-examination she testied that she was not coached and had decided to speak the truth. That she was not raped in the house of one Sylvia and that the accused person informed her that he would pay for her school fees. That she was given medicine and informed that she was sick. That the accused person deled her at 100hours. That one Gad found him in the house and the accused person blocked him from entering the house. That she was taken to the police station and later on to the hospital. That her clothes were wet and she felt pain. 8. In re-examination she testied that she was not dressed when they had sex and that the accused person told her that he would pay her fees if she slept with him. That she had not been coached to testify. 9. PW2 was one Georey Obukui a village elder who testied that on 30th August 2024 he saw a girl entering the house of the accused person but the house belonged to Linus Enyata. There were many people in the homestead and he went about his usual business. He later came back and was informed that S.N was not back which prompted him to go to the house where the accused person was. He was in a towel and he asked to enter the house. That the complainant was in the bedroom and hid under the bed. He called the chief one Joseph Kaita and who came with the Assistant Chief. That the accused person is his brother and the complainant is his relative. 10. On cross-examination he testied that he found the accused person at the door with a towel and he did not nd him having sex with the girl. That no meeting was held to frame the accused person and they were what he referred to as cousin brothers. That there was a land dispute which he had solved and he did not take any photographs at the scene. That the child did not report that she had been deled and he did not know why she had gone under the bed. That she did not stop the child from entering the house as he thought she was visiting her father. That he had not planned with one Ezekiel to frame the accused person. 11. In re-examination he testied that he did not have a dispute with Ezekiel and he did not know of any land dispute. That he did not know Precious as it was only him and the complainant. That other people were aware of what was happening inside. 12. PW3 was one Joseph Hosea Kaita Chief of Ruatama location and who testied that on 30th August 2024 at 1600hours he received a call from nyumba kumi and was informed that a child S.N was with the accused person in the house. He called other members of community policing and proceeded to the scene. He found a crowd of people and the accused person and the complainant had been locked inside the house. There was water on the oor, a basin and soap. That he asked the girl what had transpired and she kept quiet. She however looked like she had bathed. She then told them that she had been told to bathe. He interrogated the elder who said that he had found the accused person with a towel which was on the bed and appeared to be used. They proceeded to Moding Police Station and Moding Dispensary. The child was not examined because the doctor was not present. That he knew the accused person who had a case of delement at Sirisia Law Court and they have no dispute. That he also knew both Ezekiel and PW2 who had no dispute with the accused person. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 2

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13. On cross-examination he testied that he had not recorded in his statement that the door had been locked by community policing to prevent his entry. That he had nothing to gain from framing the accused person. That his evidence in court is what he had witnessed and investigations are done by police. That the accused person was alone with the victim in the house. That the accused person has a history of being involved with minors. That the accused person wanted to run away but was restrained. That the child stated that she had been instructed to bathe. That the accused person was not found having sex with the complainant and the house belonged to Elvis’ Enyat. That he was not aware of the status of the bursary of the Complainant and the child was not forced to say anything. That the child has not been able to heal owing to threats from the family of the accused person. 14. There was no re-examination for this witness. 15. PW4 was the clinical ocer one Protus Okhonga Wafula who testied that on 30th August 2024 he saw a patient who alleged to have been deled by a person known to her from 1100hours to 1600hours and she was not sure if the perpetrator had used a condom. She was in fair state and the hymen was freshly torn. There were lacerations at introitus and a clear mucoid discharge. On laboratory examination, a high vaginal swab revealed more than 50 epithelial cells and pus cells. He administered tetanus injection, antibiotics and referred the victim for counselling. He lled a P3 form on 31st August 2024. He approximated the age of injuries to be one day with the probable type of weapon being a blunt object. The degree of injury was harm. He arrived at the conclusion that penetration had occurred. That the lacerations at introitus was as a result of friction. That the high number of epithelial cells was indicative that penetration had occurred within 48 hours. 16. On cross-examination he testied that he examined the minor and conrmed that there were injuries. That his role was limited to treating the complainant and not asking for suspects. That no samples of the accused person were recovered from the girl. That lacerations was cause by a blunt object which is a penile tissue. That bleeding time is less than 8 minutes and he saw the patient a day after the incident. That delement can cause the hymen to tear, so would an accident or riding a bicycle. That the speculum used in examining the minor could not tear the hymen. That labias have no relation with penetration. That the fact that the complainant entered the hospital walking does not mean that she is lying. That he was not paid by any person to write the report in any particular manner. That the victim visited the facility after 12 hours which was within the recommended 72-hour window. 17. There was no re-examination for this witness. 18. PW5 was the Investigating Ocer one PC Linda Ogweno of Moding Police Station who testied that on 31st August 2024 a case of delement was minuted to her. She found both the accused person and complainant in the police cells and established that they had both been found in the accused person’s house by the Chief Ruatama Location one Joseph Kaita. She recorded statements, took the complainant to hospital where the minor was examined. She attempted to get the statement of the complainant who would on occasion cry and she was advised the Directorate of Children’s Services to let the child be. She processed the accused person for arraignment in court. She established that the complainant was 14 years old and produced a copy of birth certicate as an exhibit having been born on 5th May 2010. She also established that the accused person had a record of delement at Sirisia Law Courts. 19. On cross-examination she testied that there was no evidence of tampering with the case and that the complainant refused to speak. That she did not mention the accused person she simply refused to speak and cried. That the girl later stated that she was deled by James, her boyfriend. That the girl had bathed in the accused person’s house and thus the evidence had been washed away. That the use of the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 3

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words bad manners is acceptable in children who are shy. That she visited the scene and found out that the accused person had been arrested in his brother’s house. That reports from the Children’s Oce are usually not meant to harm the accused person. That age assessment was not done as the child had an original birth certicate. 20. There was no re-examination for this witness and this marked close of the prosecution’s case. Pursuant to a ruling delivered on 11th December 2025 the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. 21. He elected to give sworn evidence and call one witness. However, during defense hearing he testied on his own behalf. 22. He told the court that there has been a prolonged dispute between him and his brothers over land which to him was the genesis of this case. That on the material date, having done paint work, he got home and removed his clothes to wash since his wife had recently delivered and he was outside the house. He later saw the village elder who asked him where the child was and pushed him into the house. That he however declined to enter his brother’s house as it was a taboo to enter his brother’s house when married. He came out with the girl and beat her because she refused to speak on where she had slept. He was taken to the police station and he denied committing the oence. That the girl maintained that he had done nothing to her. That he was charged at Sirisia Law Courts and Acquitted having been advised to leave home. 23. On cross-examination he conrmed that they were ghting over land. That he did not know where the child came from or that she was in the house, He didn’t know if she was being chased or being beaten by the village elder. That he had neighbors and did not call any of them. 24. This marked close of the defence case and the accused person led written submissions which I have read and considered. 25. The matter was initially reserved for judgment on 13th August 2026 when it was not ready and deferred to 10th September 2026. Analysis and Determination 26. Before embarking on the analysis of the substantive charge of delement, I nd it necessary to address several preliminary matters raised by the accused person, principally concerning the circumstances of his arrest, alleged violation of his fair trial rights, disclosure of documents, contradictions in the prosecution evidence, and the calling and production of evidence. 27. The accused person raised a complaint that he was not informed of the reason for his arrest. An allegation concerning violation of constitutional rights, including the right to be informed promptly of the reason for arrest and the right to be brought before a court within the constitutionally prescribed period, may ordinarily be pursued before the High Court in exercise of its constitutional jurisdiction. Nevertheless, there is no impediment to this court considering the complaint to the extent that it arises from the evidence and record before it and is relevant to the fairness of the proceedings. 28. The accused person gave a fairly detailed account of the circumstances surrounding his arrest. Notably, he stated that he and the complainant were arrested together and that, even at the police station, the complainant stated that they had done nothing. This account, viewed in its totality, demonstrates that the accused was aware of the circumstances giving rise to his arrest. Indeed, his own narration of events shows that he understood the connection between the arrest and the allegations involving the complainant. I therefore nd no evidential basis for the contention that he was arrested without being informed of the reason for his arrest. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 4

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29. The accused further alleged that he was brought before court after more than 24 hours. This complaint was not raised at the rst instance during the trial and the circumstances concerning the duration of his detention were not subjected to evidential testing. It was raised only at the stage of submissions. 30. A constitutional complaint is not, by that fact alone, extinguished by failure to raise it at the earliest opportunity. However, the court must determine factual complaints on the basis of evidence placed before it. In the present case, there is insucient evidence upon which this court can make a nding as to the precise period for which the accused was held before being brought to court. The court cannot supply that evidence by speculation. 31. Further, an alleged violation of the right to be brought before a court within the prescribed period is to be distinguished from the question whether the prosecution proved the substantive criminal charge. It does not, in itself, determine the accused person's guilt or innocence on the charge before the court. 32. The accused person also referred to section 163(1)(c), describing it as a provision of the Criminal Procedure Code. The court notes that section 163(1)(c) is, in fact and with regard to the issue raised by the accused person, a provision of the Evidence Act, Cap. 80, and not the Criminal Procedure Code. The court will accordingly consider the complaint under the correct statutory framework. 33. The substance of the accused person's complaint is that PW1 gave contradictory evidence. Section 163(1)(c) of the Evidence Act permits a witness to be questioned concerning a previous statement made by that witness which is inconsistent with the witness's present testimony. 34. The existence of an inconsistency does not, however, automatically require the witness to be impeached or his or her entire testimony to be rejected. The court must rst determine whether the alleged contradiction has been properly established and, if so, whether it is material. The court must then consider its eect on the credibility and reliability of the witness and on the prosecution case as a whole. 35. The proper question is therefore not simply whether there is a discrepancy, but whether the discrepancy concerns a material matter and is of such signicance that it creates reasonable doubt regarding an essential ingredient of the charge. Minor discrepancies or variations which do not aect the substance of the evidence do not necessarily render the testimony unreliable. On the other hand, a material contradiction touching upon an essential aspect of the prosecution case may substantially aect the weight to be accorded to that evidence. 36. I shall therefore consider the alleged contradictions in the course of analyzing the evidence of each material witness rather than treating the existence of a contradiction as requiring automatic rejection of the witness. 37. The accused person complained about the non-supply of various documents, including a Children's Ocer's report, the investigation diary and the police covering report. 38. As regards the Children's Ocer's report, the record demonstrates that the report was neither produced as an exhibit nor relied upon by the prosecution in proof of its case. It therefore does not form part of the evidence upon which this court may base its determination. 39. With respect to the investigation diary and covering report, these are investigative records and do not, merely by their existence, become evidence in the trial. The accused person's right to disclosure must be considered within the broader constitutional guarantee of a fair trial and the obligation upon the prosecution to furnish material necessary to enable an accused person to prepare his defence. However, the mere assertion that an investigation diary or covering report was not supplied does not, without demonstration of the nature of the material allegedly withheld and the prejudice occasioned thereby, establish that the accused did not receive a fair trial. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 5

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40. The accused person also raised an issue concerning the P3 form. From the record, no objection or complaint regarding the P3 form was raised during the hearing in the manner now advanced in submissions. The issue was therefore not subjected to examination or challenge when the relevant evidence was being adduced. 41. The court is consequently required to consider the evidentiary record as it stands. It cannot retrospectively create an evidentiary dispute which was not placed before it during trial. 42. Similarly, photographs referred to by the accused person were not produced as exhibits. They therefore do not constitute evidence before the court and cannot be relied upon either in favour of or against the accused. 43. The absence of an age assessment report does not, in itself, render the prosecution case defective. The prosecution relied upon a birth certicate as evidence of the complainant's age. Where there is cogent documentary evidence establishing age, an age assessment report is not necessarily indispensable. The question is whether, on the evidence actually produced, the prosecution satisfactorily established the age of the complainant for purposes of the charge. 44. The accused person also appeared to fault the prosecution for not calling particular witnesses particularly Miriam Itata. 45. It bears emphasis that the prosecution is entitled to determine which witnesses it considers necessary to establish its case. An accused person cannot require the prosecution to call every person who may have been associated with the investigation or who, in the accused person's view, might have assisted the defence. 46. Neither the court nor the accused can conduct the prosecution's case. The court's duty is to determine whether the evidence presented by the prosecution establishes the charge beyond reasonable doubt. Where the prosecution closes its case, the accused person is at liberty, in accordance with the law, to call evidence in his defence. 47. The relevant question is therefore not the number of witnesses called, but whether the evidence adduced by those witnesses proves each essential ingredient of the oence to the required standard. Where an essential ingredient remains unproved, the court cannot cure the deciency by speculating about what an uncalled witness might have said. Conversely, the mere failure to call an additional witness does not, without more, render an otherwise properly proved case defective. 48. Having considered the foregoing complaints, I nd no basis on the present record for concluding that the accused person's fair trial rights were violated in a manner that would vitiate the proceedings or determine the substantive charge. In any event, he reserves his right to have the issues determined by the High Court. The issues have in the present case, I reiterate been only considered to the extent that they were raised in the accused person’s submissions before this court. 49. I accordingly proceed to consider the substantive charge of delement and whether the prosecution proved each of its essential ingredients beyond reasonable doubt. 50. The oence with which the accused was charged is dened by section 8(1) of the Sexual Offences Act No. 3 of 2006, as follows: Delement SUBPARA (1) https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 6

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A person who commits an act which causes penetration with a child is guilty of an oence termed delement. Three ingredients must be established for one to be convicted of delement, which are: SUBPARA 1. Age of the Complainant SUBPARA 2. Proof of penetration SUBPARA 3. Proof that the perpetrator of the oence was the Accused person. See Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013. On the element of age, it is trite that in sexual oences the age of the complainant is relevant for two purposes. Firstly, it is meant to prove that the complainant was below 18 years establishing the oence of delement and secondly it establishes the age of the complainant for purposes of sentencing. (See Moses Nato Rapheal v Republic (2015) eKLR.) 51. It has been held that the age of the victim in sexual oences can also be proved by the direct evidence of parents or guardian or by observation by the court. In Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR)cited with approval Francis Omuromi v Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 which held that: “ In delement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may be proved by birth certicate, the victim’s parents or guardian and by observation and common sense.” 52. The importance of proving the age of the complainant in sexual oences was emphasized in Alfayo Gombe Okello v Republic [2010] KECA 319 (KLR) where the Court stated that: “ In its wisdom, Parliament chose to categorize the gravity of that oence on the basis of the age of the victim, and consequently, the age of the victim is a necessary ingredient of the oence which ought to be proved beyond reasonable doubt. That must be so because dire consequences ow from proof of the oence under section 8(1)…proof of age of a victim is a crucial factor in cases of delement under Sexual Offences Act. It must be proved failing which the oence will not have been proved beyond reasonable doubt in material particulars.” 53. In the case of JOA v Republic [2019] eKLR the court expressed itself as follows regarding the issue of age, “ whereas proof of age of a complainant in delement cases is a duty of the prosecution, to establish the age of the victim of delement, it is equally trite law that proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certicate, birth notication, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation by the court, or testimony by the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 7

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parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim.” 54. In this case the complainant told the court that she was 14 years old having been born on 5th May 2010. Her evidence was corroborated by the investigating ocer who in the course of her investigation came across a copy of birth certicate and which was produced as Exhibit 2 evidencing the fact that the minor was born on 5th May 2010. The accused person only challenged the evidence on age to the extent that he was not supplied with a copy of the age assessment report. That issue has already been addressed in this judgment. The investigating ocer further claried that there was no need to conduct age assessment where there was an available birth certicate. The authenticity of that birth certicate has not been challenged. The incident is said to have occurred on 30th August 2024. Simple arithmetic would show that at the time of the incident, the complainant 14 years old. It is therefore the nding of the court that the ingredient of age was proven by the prosecution. 55. On the element of 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.” 56. The complainant in this case told the court that the accused person told her to bathe after doing what she referred to as bad manners with her. She further elaborated that the accused person touched her private parts which she used to urinate. She told the court that he did not use protection and also used his private part which she referred to as “his susu”. She told the court that she saw blood and felt pain. Her evidence was corroborated by the Clinical Ocer who testied as PW4 and who examined the minor approximately 12 hours after the incident. 57. He further testied that the hymen was freshly torn. There were lacerations at introitus and a clear mucoid discharge. On laboratory examination, a high vaginal swab revealed more than 50 epithelial cells and pus cells. He administered tetanus injection, antibiotics and referred the victim for counselling. He lled a P3 form on 31st August 2024. He approximated the age of injuries to be one day with the probable type of weapon being a blunt object. The degree of injury was harm. He arrived at the conclusion that penetration had occurred. That the lacerations at introitus was as a result of friction. That the high number of epithelial cells was indicative that penetration had occurred within 48 hours. 58. The evidence of the Clinical Ocer was challenged by the accused person in submissions and who alleged that the qualications of that clinical ocer and subsequent licensing had not been proven. He further faulted the clinical ocer for using a speculum on a minor of such tender years. He further challenged the fact that no spermatozoa was seen upon examination of the minor. 59. I have considered these submissions against the evidence on record. PW4 gave his professional registration details in his testimony and produced his identication document, which was also shown to the accused person during cross-examination. His evidence was therefore not that of an unidentied or unqualied witness whose professional status was wholly unknown to the court. More importantly PW4 testied in his capacity as a Clinical Ocer and gave his professional opinion on the ndings he made during the examination of the minor. 60. The accused person is not a medical practitioner and this court likewise does not possess medical expertise. To the extent that the accused person challenged the methodology employed by PW4, the propriety of the examination undertaken or the medical basis for PW4s conclusions, such matters are questions requiring medical expertise. The accused person was at liberty to call evidence in rebuttal, https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 8

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including of another suitably qualied medical practitioner but no such expert evidence was presented to controvert PW4s testimony. 61. This is not to say that PW4s evidence is immune from scrutiny. The court has considered his testimony together with the other evidence on record and matters elicited in cross-examination. I nd no material contradiction or other circumstances emerging from the evidence that would cause me to doubt his competence or the reliability of the ndings he made in the course of his professional duties. 62. Further the absence of spermatozoa in itself does not negate the occurrence of penetration. PW4 explained the ndings upon which he reached his conclusion, including the nature of the injuries observed and the presence of epithelial cells. In any event the ingredient requisite for proving the oence is penetration and not ejaculation. 63. The court would also like to point out that the accused person alleges not to have been supplied with the P3 form but in submissions at page 5 paragraph 2 he goes ahead to describe the dressing of the complainant at the time of examination in the exact manner as stated in the P3 form. This casts doubt on his assertion that he was not supplied with the P3 form. 64. On the contradictions alluded to by the accused person especially regarding time of occurrence of the incident, I nd them not to be fatal. Minor contradictions are expected owing to human fallibility and the fact that no two persons can recall events with exactitude. In fact, such exactitude may make the evidence less reliable as it may suggest that it has been rehearsed. 65. Having so said, it is the nding of the court that the ingredient of penetration has been proven by the prosecution. 66. On identication, where identication is based on recognition, this is where the complainant knows the accused and it has been held to be more reliable than identication of a stranger. The Court of Appeal in Francis Muchiri Joseph v Republic [2014] KECA 199 (KLR) held that: “ In Lesarau v R, 1988 KLR 783, this court emphasized that where identication is based on recognition by reason of long acquaintance, there is no better mode of identication than by name”. 67. It is not in dispute that the accused person is known to the complainant. He is the uncle of the of the complainant. The accused person did not deny that he and the complainant were arrested together on the same day. He only stated that he did not know that the complainant was in the house which belonged to his brother and which he alleged he did not wish to enter as he was a married man and it was against their culture. 68. This court however rejects the accused person’s challenge to his identication. The circumstances immediately surrounding the incident point to the accused person as the perpetrator. The complainant was found in the house having been told to bathe. Water was found in the house. PW2 testied that he saw the complainant under the bed. The Chief and who testied as PW3 was also called and arrived approximately 30 minutes after the complainant was found and upon arrival found the complainant and the accused person in the house before the matter was reported to the police. 69. These events occurred in close proximity to the alleged incident and before there was any apparent opportunity to manufacture a case as alleged against the accused person. 70. Further, the complainant was medically examined shortly after the accused person’s arrest. The ndings of PW4 were consistent with penetration having occurred within the period stated in his evidence. When considered together with the complainant’s evidence and circumstances as stated https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 9

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above, I am satised that the accused person was positively identied as the person who committed the oence. 71. The accused person’s defence regarding his dispute with his brother has been considered and weighed against the evidence on record, I reject the defence as it does not raise a reasonable doubt in the prosecution’s case. The oence of delement was independently proved by the evidence adduced by the prosecution. 72. Finally, the court notes that the complainant was visibly traumatized by the events giving rise to this case. Allegations of interference with witnesses were also raised during the trial, necessitating the intervention of the Department of Children’s Services and placement of the Complainant in protective custody away from her home during the pendency of the trial. 73. The court has also taken into account the demeanor of the complainant as observed during her testimony. While her evidence was not without inconsistencies, and at times she appeared to shift her account, those matters have been considered against the evidence as a whole. Her evidence was independently corroborated in material aspects. 74. The complainant further testied that the accused person asked to have sexual intercourse with her in exchange for continuing to pay her school fees. The fact that the accused person was paying her school fees also emerged during the cross-examination of PW3. This aspect of her evidence therefore did not stand alone. 75. Cumulatively, having considered the evidence of the witnesses, the medical evidence, the surrounding circumstances and the defence advanced by the accused person, I nd that the prosecution proved the ingredients of the oence beyond reasonable doubt. There is no reasonable doubt that the oence was committed in the manner established by the evidence before the court. 76. Accordingly, the accused person is convicted on the oence of delement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act 2006 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. A.Z. OGANGE RESIDENT MAGISTRATE In the Presence of Isaack Osakina the Accused Person Mr. T. Rotich Prosecution Counsel Court Assistant: Paul Otieno https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/877/eng@2026-09-10 10

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