Republic v Guyo

boyfriend, came to see her. She noted that she had previously met him there at Roka. She stated that he had arrived, and they had engaged in a sexual act, which he had told her about beforehand. She testied that the act took place at their home in her bedroom where she usually slept, noting that there was nobody else at home at the time. She explained that she had used her body part used for peeing, that she had removed all her clothes, and that the accused had also removed all his clothes. She further stated that his body part used to discharge sperm was utilized, and that he had discharged sperm into her body part used to pee. She testied that he performed the act twice, after which she became pregnant, and he went away. She stated that she did not tell anyone about the act at the time. 5. The witness further testied that after that day, on 20th December 2025, they went to Garissa as girlfriend and boyfriend, where they stayed until 13th January 2026. She stated that while in Garissa, they had sex several times. She testied that they were eventually brought a letter by the chief, after which they were taken to the police station, and she was subsequently taken to a shelter. She added that she was also taken to the hospital in Hola, where she remembered papers being lled out and being physically examined. She maintained that she was pregnant and that the pregnancy belonged to Said Galgalo Guyo. She stated that it was her rst time engaging in a sexual and that she had never done it with any other person except the accused person. She reiterated that Said Galgalo Guyo was her boyfriend and that she knew him to be a sherman. She identied Said Galgalo Guyo before the court, stating that he was the one who had made her pregnant, and added that there were no disputes between them or their families. She identied the P3 form which was marked as PMFI-1, the ultrasound report which was marked as PMFI-2, and her birth certicate which was marked as PMFI-3. 6. During cross-examination by the accused, the witness stated that they had sex at Garissa. She asserted that the proof she had was that she was carrying his pregnancy, though she did not have a house. She stated that they did have sex in her father’s house, but later corrected that her father had no house in Roka. She stated that the accused was the one paying her school fees because her father had handed her over to him, having stated that he had no use for her. She claried that her father had handed her over to the accused because of the pregnancy. She stated that she was married to the accused and that she was both married and attending school. She testied that in 2025, she had only gone to school for two days and had not studied in Grade 6 because her father was not taking care of her needs at the time. She reiterated that her only evidence of the sexual activity with the accused was the pregnancy, insisting that she was telling the truth and that the pregnancy belonged to him. 7. She further explained that she had been handed over to the accused and his parents due to the pregnancy, so that he could take her to school and care for her until she gave birth. She maintained that the pregnancy was his because she had never had sex with any other boy. She stated that her birth date was correct as it had been processed by her father. She repeated that her father had refused to educate a pregnant child, which was why she was brought to the accused. She stated that she was currently going to school and that the accused was the one who had made her pregnant, noting that she was seven months pregnant at the time of her testimony. She added that when the accused married her, he took her to Garissa, during which time she was not going to school because it was the December holidays. 8. During re-examination by Mr. Michuki, the witness claried that her father had no house and that the initial act had actually happened in the accused’s house. She reiterated that the pregnancy belonged to the accused before the court. She concluded by stating that, to her knowledge, there were no issues between the accused and her father, and that she resided with her brothers. 9. PW2 was the father of the minor MOD, who hails from Roka village within Tana River County. He stated that on 13th December 2025, he was at his home. He explained that he has a 13-year-old daughter named ZHM, who attends Kumbi Primary School, and that he had released her to live with her mother https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/918/eng@2026-09-16 2

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following their separation. On that day, his ex-wife came to his house and informed him that she had not seen the girl and did not know her whereabouts. 10. The witness further explained that he went to visit a relative, and on 14th December 2026, he received a phone call from his daughter, ZHM, who informed him that she was in Garissa. When he questioned her about who had taken her there, she told him that she had been married o (nyakwa) to Said Galgalo. He reported the matter to the area chief, Hadija Omar, who advised him to look for the girl. 11. When his daughter eventually returned, he took her to the chief's oce, where she promised to go back to school, as he had intended to transfer her. However, on the third day, the girl stated that she did not want to go to school anymore. Because he and his ex-wife are both uneducated, he deeply desired for his daughter to receive an education. Consequently, he decided to take the matter to the police to compel her to attend school. He emphasized that his primary goal was to ensure the child received an education and that he had no intention of having anyone arrested. He added that he only came to know the accused person on the day of the arrest, and despite the accused being related to his ex-wife—who is the accused's aunt—he did not know him personally. 12. During cross-examination by the accused, the witness claried that his daughter used to attend school in Kumbi but later left to go to Nyangwani, where she resides with her mother. He stated he was certain that the mother is the one educating her because his sister had called him and conrmed that the girl was indeed in school. 13. PW3 was No. 92727 Corporal Nuru Kanjugu Abdullahi, a police ocer attached to Hola Police Station. She stated that on 12th March 2026 at around 1230 hours, he received the victim's father, MOB. The father informed him that his daughter, ZHM, had been deled by a boy known to him, who was the accused person standing before the court. The ocer tracked and located the victim in the Shauri Moyo area of Roka with the assistance of the local assistant chief. At that time, the accused and the victim were cohabiting as husband and wife in another village. 14. The witness further stated that on 15th March 2026 at around 1300 hours, he received the victim at the station, accompanied by the suspect and the victim's father. He noted that the accused person came to the station under the impression that they were only there to amicably resolve the matter. The victim's mother was also present during this meeting. Upon recording their statements, the ocer established that the victim had been living with the accused, was a Grade 9 student, and was pregnant at the time, thereby requiring immediate care. Consequently, he rescued the minor and placed her at the Groots Kenya Rescue Centre in Hola, from where she was taken to the hospital. 15. The ocer explained that he took legal action against the accused because the accused was an adult who had married a child. He noted that the accused had been providing for the minor's needs while simultaneously engaging in sexual relations with her, which led him to charge the accused with delement. The witness stated that this was his rst time interacting with the accused. He conrmed that the victim was pregnant, noting that as of 16th March 2026, she was 22 weeks pregnant. 16. PW4 was Rukia Gaso, a Clinical Ocer in Reproductive Health holding a Higher Diploma in Comprehensive Reproductive Health from Amref University and currently stationed at Hola County General Hospital. She testied that she was in possession of the P3 form. She stated that on 16th March 2026, a 13-year-old girl identied as ZHM was brought to the medical facility accompanied by her brother. It was alleged that the minor had been deled by a person known to her and had consequently become pregnant. The witness examined the patient and established that the alleged act had occurred ve months prior. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/918/eng@2026-09-16 3

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17. The witness further stated that an obstetric scan conrmed the patient was pregnant, with the gestation period determined to be ve and a half months. She noted that the pregnancy was stable and safe at the time of the examination. Her physical evaluation revealed that the hymen was absent, and there was no vaginal discharge. The clinician produced the obstetric scan, marked as Prosecution Exhibit 2 (PEXH-2), and the outpatient medical record, marked as Prosecution Exhibit 4 (PEXH-4). Based on her clinical ndings, she concluded that there was delement resulting in pregnancy, and she subsequently advised the minor to commence prenatal clinics. 18. During cross-examination, the witness stated that she did not determine the identity of the person who had impregnated the minor. Furthermore, she declined to answer whether a 13-year-old child could possess 32 teeth, explaining that she is not a dentist. 19. That marked the close of the Prosecution case. The accused was then placed on his defence and then chose to give sworn testimony upon the options under Section 211 of the Criminal Procedure Code being explained to him. The Defence Case 20. The accused person testied as DW1 and stated that the matter began on 22nd December 2025 when he travelled to Garissa, where he stayed until March 2026 before returning home. He stated that while he was in Garissa, the minor, ZHM, called him on his mobile phone. During their conversation, she expressed her desire to get married. When he questioned her about whether she was still attending school, she replied that she was not and claimed to be over 18 years old, asserting she was born in 2008. Upon his return, he met her and conrmed that she was indeed out of school. He then took her to his parents, who subsequently visited the girl's father. However, the families failed to reach an agreement due to prior dierences between his father and the girl's father. The girl was then returned to her father, after which her father changed his stance, asserted that she was a minor and had been deled, and escalated the matter to the police and the court. 21. During cross-examination, the accused stated that the complainant had sent him a text message, but he did not have it to present before the court. He admitted that she did not provide him with her national identication card. While he claimed to have previously seen a birth certicate indicating she was born in 2008, he acknowledged that the birth certicate produced in court showed she was 13 years old. He added that he did not question her regarding her age or discuss any wedding or marriage plans while they were in court. 22. In re-examination, the accused claried that he was never asked any questions regarding marriage by the girl while in court. 23. DW2 was MHM, who stated that she was a farmer from Kumi village and identied the accused person, Said Galgayo Guyo, as her brother's son. She asked the court for forgiveness on behalf of the accused, noting that she could not recall the exact date of his arrest, but that her family had been summoned to court following the arrest. 24. She explained that on 5/2/2026 the father of the victim (ZHM) called both the accused and his father. According to the witness, the victim's father stated that he did not have a house and that his wife had left, so he requested their assistance. He then brought the victim to them, asking them to cater for her education, though he later changed his mind and had them arrested. She further stated that on 22/5/2026, representatives from Groots Kenya brought the child to her, instructing her not to return the minor to her father and to ensure that she attended school. The witness prayed that the accused https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/918/eng@2026-09-16 4

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be released so they could care for the child. She produced a vaccination card which was produced as DEXH-1 25. During cross-examination by Mr. Michuki, the witness stated that the victim was her daughter. While the victim was alleged to be 13 years old, the witness disputed this, asserting that as the biological mother, she knew that was not her true age. She explained that her original hospital document had been destroyed in a re, but she possessed another card used for hospital visits. She claimed that the girl would be turning 18 years old that year. 26. The witness testied that the girl was pregnant, though she did not know who was responsible for the pregnancy. She committed to taking care of the minor until she reached adulthood, adding that the girl was currently in Grade 7 and attending school. While she admitted it was wrong to attempt to marry the girl o and asked for forgiveness, she noted that it was the assistant chief who discovered the pregnancy. She stated that the accused and the victim had been living in Garissa, and it was the chief who threatened arrests if Zainab was not brought back. 27. The witness reiterated her desire for the girl to go to school. She mentioned that while the two were married, she knew nothing about the delement allegations, later clarifying that the girl was not married because she was still attending school. She stated that she had not consented to the marriage because she had separated from her husband. She added that she had only heard about the marriage and negotiations from the father and had not been present. 28. That marked the close of the defence case. None of the parties led any submissions. Issues for Determination and Analysis 29. Section 8(1)provides that “ A person who commits an act which causes penetration with a child is guilty of an oence termed delement.” 30. While Section 8(3) provides “A person who commits an oence of delement with a child between the age of twelve and fteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 31. From the above denition under Section 8(1), there are three issues which come out of a reading of the said provision and they are: (1)a person (identify the actor) (2) causes penetration (must have caused penetration) of (3) a child (anybody below the age of 18 as per the Children’s Act) 32. This was also set out in Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013. The Court in that case stated: The critical ingredients forming the oence of delement are; age of the complainant, proof of penetration and positive identication of the assailant. 33. The same is reiterated by Justice JN Njagi in Koech vs. Republic [2025] KEHC 13566 (KLR) 34. On the issue of AGE, the prosecution presented evidence that the victim herein was 13 years old. The same was supported by way of documentation being a birth certicate as PEXH-1 which showed the date of birth of the victim as 19/12/2012. The father of the minor only mentioned the age as 13 years but did not mention her date of birth. The minor while testifying stated that she is 13 years and gave her date of birth as 19/12/2012. Similar information was given by the PW4. The Investigation Ocer did not mention anything towards the age of the minor. 35. The accused on the other hand contended that the minor was above 18 years and she is the one who told him so. He stated that as a matter of fact the minor had shown him a dierent birth certicate. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/918/eng@2026-09-16 5

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He mentioned that from his knowledge the minor was born in 2008. The mother of the victim, who testied as DW2 indicated that the minor is 17 years and that she will be turning 18 years later in the year. 36. Justice JN Njagi in Koech vs. Republic [2025] KEHC 13566 (KLR) while quoting with approval the decision in the Court of Appeal case of Mwalongo Chichoro Mwajembe vs. Republic, Msa Cr.App. No. 24 of 2015 (UR), agreed as follows: …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. 37. In addition to the mentioned ways of proving age the court in Thomas Mwambu Wenyi vs. Republic, Criminal Appeal No. 21 of 2015 (2017) eKLR added that age can be proved by other ways. It thus stated: In delement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could 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. 38. Thus, the use of medical evidence or just by observation and common sense by the court are other methods acceptable to determine or estimate the age of a victim. 39. This is an interesting and or rather awkward case as the father of the minor, the minor and the mother are disagreeing as to the exact age of the minor. With that in mind therefore, I would question the authenticity of the birth certicate which was produced as PEXH-1 and how the same was obtained. Furthermore, the prosecution only provided a copy of the said birth certicate without availing the original copy to either the court of the accused person. The copy produced in court was not certied as a true copy of the original hence. This therefore makes the court to question its authenticity and thus leaves us with the remaining evidence of the mother. 40. In Richard Wahome Chege vs. Republic (2014)eKLR the Court of Appeal sitting in Nyeri was of the opinion that the best evidence to prove the age of a child would be the evidence of the mother. The benet of doubt therefore would go to the accused person in the matter due to the two versions on the age of the victim herein from the mother and the father of the minor. 41. The accused on his part stated that when she met the victim, she told him that she was born in 2008. Simple arithmetic would mean that in 2025 when the accused and the victim met the victim would be between 17-18. That would mean that the victim could either have been an adult or a minor depending on date of birth. The accused in support of his case further indicated that the victim was not schooling at the time hence the reason why he believed that indeed the victim was an adult. 42. While I am to take a neutral stand in the matter, the court cannot turn a blind eye to the fact that the victim as observed by the court would mislead any other reasonable person to believe she was an adult when she appeared before court. The same would apply to the accused person herein. 43. The Accused herein considering his background and the understanding of the law would not be in a position to understand more or cross-examine fully to get the required information and as such any https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/918/eng@2026-09-16 6

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contradiction should be interpreted in his favor by the court. To compound it all, the accused stated that at the time the victim was not going to school a fact conrmed by the parents. 44. The Court of Appeal sitting in Eldoret in Meshack Nyongesa vs. Republic [2016] KECA 84 (KLR) when faced with almost a similar issue stated as follows: We take judicial notice of the fact that these days, children, especially females, appear older than they actually are. In the circumstances, given the fact that this is a defence which few non-lawyers know about, it is our considered view that where a young man is charged with deling a girl child above the age of 16 years, the trial court should ascertain whether he had reason to believe that the girl was 18 years or above. The appellant has raised this defence for the rst time in this appeal. Whereas the defence set out under section 8(5) of the Act may not have been strictly applicable in the appellant’s case, but the fact that the complainant was a college girl may have caused the appellant to believe that she was an adult. 45. I take it that the fact that the victim was not going to school at the time as indicated by the accused, then that would be a factor for the kind of accused person before court. Therefore, I am satised that the age of the accused person being in doubt, and with the defence oered by the accused person, then the court has to interpret the same in his favor. 46. The next issue would be penetration. The Sexual Offences Act under Section 2 the denes the act of penetration in the following words: “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 47. In the case of Mark Oiruri Mose vs. Republic [2013] KECA 67 (KLR), the Court of Appeal held as follows: Many times, the attacker does not fully complete the 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. 48. The prosecution through the evidence of PW4 indicated that the victim was pregnant and produced PEXH-2 which showed that at the time of examination, she was 22 weeks pregnant. Pregnancy, without more, is a clear evidence of a sexual intercourse which indicates penetration. There was no suggestion whatsoever that maybe the victim got pregnant though in vitro fertilization (IVF). PW4 who observed her when she was presented to the hospital testied that there was no hymen observed in her vagina which information is also availed in the PEXH-3 and PEXH-4, the outpatient book and the P3 form respectively. 49. However, there is one issue which arises herein and that would be the issue of pregnancy of the victim. In looking at this, we would also be considering the issue of identity of the person responsible for the penetration. She is said to be 22 weeks pregnant by the time she went to the hospital on 16/3/2026. A calculation of the period between 6th December 2025 when the accused is said to have deled her and the 16/3/2026 when she was examined would be around 14 weeks and some days. The indication of 22 weeks as at the time clearly raises doubts to the evidence of the prosecution. If indeed as stated by the PW1 that she only had sex in her lifetime with the accused and the period is the one indicted in the charge sheet, then it would mean the evidence of the PW1 is unreliable and cannot be relied upon to convict the accused herein. A margin of error of 2 to 3 weeks would be excused but the dierence between the weeks (of 14 and 22) is too much to be ignored by the court especially considering the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/918/eng@2026-09-16 7

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liberty of the accused is on trial here. Thus, I will interpret the same in favor of the accused person as it casts doubt on whether indeed the accused penetrated the victim as being alleged herein. 50. Justice Mativo in Elizabeth Waithiegeni Gatimu vs. Republic [2015] KEHC 1136 (KLR) stated as follows on the issue of evidence and role of the prosecution To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence oered taking into account the defence oered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to nd the defendant not guilty… 51. An accused person is the most favorite child of the law and every benet of doubt goes to him regardless of the fact whether he has taken such a plea. Thus, the favorable interpretation on the issues identied above. 52. Lastly, on the alternative count, having looked at the evidence in totality and considering the analysis above, the prosecution has not provided any evidence to prove the said alternative charge. The evidence in the main count is similar to the evidence to be relied on in proving the alternative charge. With the failure in proving the issue of age and also the inability to explain the variance on the pregnancy issues by the prosecution, I am satised that there is no enough evidence to convict the accused of the alternative charge. Conclusion 53. In view of the foregoing, I nd that the prosecution has not proven its case against the accused person beyond any reasonable doubt. Consequently, I hereby nd the accused person not guilty and proceed to acquit him of the oence of delement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, pursuant to the provisions of section 215 of the Criminal Procedure Code. He is similarly acquitted of the alternative count of committing an indecent act with a minor contrary to Section 11(A) of the Sexual Offences Act pursuant to Section 215 of the Criminal Procedure Code. 54. The accused is to be set free unless otherwise lawfully held. 55. Right of appeal 14 days. JUDGMENT READ, SIGNED AND DELIVERED IN COURT AT HOLA THIS 16TH DAY OF SEPTEMBER, 2026 W.O KOMBWAYO RM Delivered in the presence of: Mr. Lusweti for the State Accused- Present CA- Omar/Kofa https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/918/eng@2026-09-16 8

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