Republic v Komora

until he slept o. The accused then removed her clothes forcefully and he also removed his clothes. It was her testimony that the accused then took an oil jelly and smeared on his “mdudu” and then did bad manners to her. It was her testimony that the accused took his “mdudu” and put on her vagina of which she felt a lot of pain. The accused also threatened her with a knife if she told anyone. She testied that she saw blood on her vagina and after he was done he gave her KShs.20 and told her to go home. She then went home and she found the mother whom she narrated her ordeal in the hands of the accused person. The minor further states that the mother checked her private part and there was a lot of blood on her vagina. The mother then took her to the police station and later to the hospital where she states the doctor said she had been injured. It was her testimony that she knows the accused person herein who is also their neighbour and that her mother had told her to call him “babu” as he is her grandfather. She stated that the accused had done this act four times previously. 5. In cross-examination by the accused, she stated that she is 12 years old and that after the ordeal she had blood on her private parts. She stated that she knows the accused as Komora Aand the father is called Aboboti. It was her testimony that she went home at 8 p.m. She further stated that the accused had sex with her forcefully and that on the particular day he had a yellow t-shirt and a black pant. She described the yellow t-shirt as having a picture of a person with a black jersey on it. She stated that she tried to scream but the accused put a piece of cloth in her mouth. She stated that after the ordeal she walked home slowly with the minor though she was in great pain as a result of the act. It was her testimony that she told the mother who then took her to the doctor. It was her testimony that they went to the police station the same night and to the hospital the next day at around 10 a.m. The minor stated further that the accused inserted a piece of cloth into her mouth and that initially the accused wanted to use a condom but she refused and it was then that he smeared the jelly oil on his penis as a lubricant. As to the state of the clothes she was wearing on that day, the minor stated that the mother threw them away. When questioned whether neighbours could have seen them, the minor stated that on that particular day people were not around as they had gone to attend a wedding which was happening in the area at the time. As to his identity, the minor said that their mother calls him “baba mdogo” hence the reason why she told them to call him “babu”. When asked about her age by the accused person, the minor stated that she is 12 years old but she has no birth certicate. It was her evidence that she is the second born in their family and that their rst born is 14 years old and that the accused knows all their children. 6. The minor added that the accused tore her under-pant and threw it on a tree near their home and that it is still there. The minor stated that the accused had sex with her four times which she described and stated that on the second time the accused touched her breasts, on the third time she was taken to his house but she managed to run away. On this fourth occasion, she stated that she even lost consciousness when the accused was molesting her for like 20 minutes. She was categorical that before she lost consciousness, she saw the accused while removing her clothes and also his. She went home when she regained her consciousness. She was adamant that the act took place in the home of the accused person. It was her testimony that despite the accused calling her to his home to give her the said items, he did not give her any of those items. She stated that there were sperms mixed with blood stains on her private part. At the conclusion of the cross-examination, the minor testied that she has known the accused person for over 5 years and she refers to him as their grandfather and that they stay together in [Particulars Withheld] area. She reiterated that the accused slapped his two year old brother who cried and then slept as a result and that the accused gave her KShs.20 and told her to go back home. 7. In re-exam, the minor stated that the act happened inside the house of the accused person. 8. PW2 was the mother of the minor namely FMS. She stated that the minor herein is her second born daughter. It was her testimony that on 27/12/2025 at around 2000hrs, when she came back home she found her children not around. She had gone to attend to a function on the neighborhood and had https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/919/eng@2026-09-07 2

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left them alone at home. She then sent the brother to look for them and it is her testimony that she met them on the way walking home with the victim carrying the two year old brother on her back. When she got home, she asked her where she had been and she started crying. When she calmed down, the minor told her that when she(the mother) had left Babu Acame and called her to go and pick some items in his house for the mother. It is her evidence that the minor then told her that the accused slapped the two year old boy and also gave her a biscuit. The accused threatened her with a knife. The accused then touched her breasts and started inserting ngers on her private parts. She states that she then took the minor to a neighbour who is a midwife who looked at her and upon observing her she stated that the minor had been hurt. It was her testimony that after the incident the accused ran away for sometime until his time of arrest. The mother continued and stated that she took the minor to the hospital and stated that at the hospital she was told the minor had been really hurt on her private parts. It was her testimony that after the hospital processes they went home It was her testimony that the minor herein was born on 7/7/2014. It was her testimony that she had known the accused person for a very long time 9. In cross-exam by the accused, the witness stated that she is 31 years old born in 1995. It was her testimony that the incident happened on 27/12/2025 as told to her by the minor and that she reported to the police on the same day at around 2200hrs and that she took the OB on the same day. It was her testimony that she has 3 children, the rst born being 14 years old born in December 2012 but that she had lost their birth certicates in a re incident. She refuted claims that the accused was ever her bodaboda rider . She reiterated that the incident happened on 27/12/2025 and the police were looking for him to arrest him but he had gone into hiding. 10. PW3 was PC Josephat Bett attached at Wenje Police station doing investigaton duties. It was his testimony that on 28/12/2025 he went to the station and upon perusing the OB he found he had been allocated a case. He then took the details, called the mother of the minor who came to the station. He then sent them to the hospital where they had their P3 form lled and brought it to the station. The doctor had noted in the P3 that there was a discharge on the private part of the minor and bruises on the vagina It was his evidence that he then recorded their statements and then went with them to the scene but they found the door closed. It was his evidence that the accused went at large until when he arrested him on 1/2/2026 with the help of Inspector Mwenda, PC Otieno and PC Obare who had gotten some information that the suspect had been spotted in the area. They then went arrested him and took him to the police post and then later transered to Mwenje Police Station. It was his evidence that despite knowing the accused as a resident of [Particulars Withheld] area, he had no personal issue with him 11. In cross examination, he stated that he is not the one who arrested the accused person. He stated that the minor went to the police station and the hospital while accompanied by the mother. It was his testimony that his evidence was as per the statements given by the witnesses, PW1 and PW2. He nished by saying that the accused was arrested on 1/2/2026 and taken to court on 3/2/2026. 12. PW4 was the doctor, namely Benfred Nyangirisi Moses from Ijara Sub-County Hospital. He stated stated that on 28th December 2025 at around 10:00 a.m., he had received a call from [Particulars Withheld]. He explained that the patient, a 12-year-old minor named M.M., had come in accompanied by her mother, and noted that there was an age assessment report marked as PEXH-3. He testied that the minor had explained to him that she had been deled on the previous day by a known person, recounting that the individual had removed her inner clothing, closed the door, and deled her. Upon examining her private parts, he observed bruises on the vaginal walls as well as a white discharge. He added that the minor had told him it was not the rst time the accused had committed that act against her. Based on his observations, he noted that the bruises had been caused by a penis and that she was not a virgin at the time. He stated that all other tests had come out negative except for the presence of https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/919/eng@2026-09-07 3

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epithelial cells, leading him to the conclusion that the minor had indeed been deled. He also produced the P3 form as PEXH-1, the treatment notes as PEXH-2 and the age assessment form as PEXH-3. 13. The witness stated during cross-examination that he had performed that work for over ten years. He observed that it was not the rst time the minor had engaged in sexual intercourse, though he claried that he did not know who had had sex with her and armed that he had not stated it was the accused. He further explained that she had bruises on her vaginal walls secondary to a blunt object and was not a virgin at the time. He added that he had never tested or conducted a medical check-up on the accused, and noted that the minor had been escorted to the hospital by her mother. Finally, he stated that he had failed to appear in court previously due to other work engagements, but maintained that he was giving a true testimony based on his own observation of the patient and had not been forced to attend court. 14. That marked the close of the prosecution case. The accused was thereafter placed on his defence and he chose to give a sworn evidence but did not call any other witness. Defence Case 15. The accused testied that his name was Abedi Komora Ware, a bodaboda rider residing in [Particulars Withheld] within Tana River County, and stated that he was arrested on 30th December 2025. He explained that he used to transport a woman named Fatuma Halako Said to Masala ya juu, and she had agreed to hire him daily to take her to Masalani and pay him at the end of every month. However, at the end of the rst month, she failed to pay him, asking him to check back later. When he called her that evening, she inquired about his balance, which was KShs. 2,000, and asked for three more days to process payments from another job. On the third day, she oered to settle the debt in kind through sex. Although he initially refused, stating that sex would not clear his motorcycle loan with Mogo, she grabbed him, took him to her bedroom, removed his shirt, and threatened not to pay him unless he complied. He accepted unwillingly, after which she declared the KShs 2,000 debt cleared, noting that she usually charged KShs 1,000 per encounter. 16. He further stated that on the following day, he returned to her and oered KShs 300, which she accepted. She asked him not to use protection and gave him a piece of paper to buy medication at a chemist. Initially, he did not hand over the note and instead purchased sexual enhancement drugs ("dawa za wazee"), but upon returning, she claried that she needed emergency contraception (P2). After he bought the correct medication, she instructed him to return later as she had clients. He returned at around 3:00 p.m., took a shower, and had sex with her again. He admitted to telling his friends at the stage about the sexual encounters with the said lady. Upon learning this, the woman threatened him with dire consequences, causing him to avoid her. Shortly thereafter, he heard that the police were searching for him over allegations of theft. A police friend warned him that the woman had reported him, and on 30th December 2025 at around 8:00 p.m., he was arrested. The following morning, the woman visited him in the cells and taunted him. After two days at [Particulars Withheld], an ocer informed him during interrogation that the charge had changed from theft to delement. When he broke into tears, the ocer noted there was no evidence and advised him to oer the woman KShs 30,000, but he responded that he had no money. He was then transferred to Wenje Police Station, where ocers warned him that the case was serious and that he would be taken to court. He noted that his personal items were conscated at [Particulars Withheld] and had not been returned to him. 17. Finally, the accused maintained that he was never involved with the minor, R.M.M., and had only slept with her mother. He asserted that the mother was retaliating because he had told people about their sexual encounters and her business. He stated that she had fabricated the entire case to teach him a lesson and alleged that she was collaborating with the doctor to forge documents, which explained why the doctor had failed to appear in court ve times. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/919/eng@2026-09-07 4

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18. The accused stated in cross-examination that he had been a bodaboda rider for three years at that time and had forgotten the motorcycle's registration plate number. He added that he did not possess a driving license and that he had acquired the motorcycle through a loan from Mogo. 19. He further testied that the woman had informed him she was a sex worker who sold her body for sex, practicing her business in Masalani while presenting a dierent image in [Particulars Withheld]. He denied that "Abomboti" was his nickname and stated that his rst sexual encounter had been with that same lady, who had also introduced him to the concept of P2 emergency contraception, whereas he had learned about condoms in school. 20. Additionally, he explained that he had not been issued receipts at the chemist and identied the chemist vendor as Sammy Ogola. He noted that his bodaboda friends had not answered his calls to testify as witnesses. Finally, he conrmed that he knew the minor, RMM, who used to call him "ankoo" or "uncle," but claried that while he had slept with her mother, he had never slept with the minor. 21. That marked the close of the defence case. 22. The accused led his submissions reiterating his evidence and the court has looked at them and considered them in this judgment. Issues For Determination And Analysis 23. 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.” 24. 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.” 25. In Kamau vs. Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) the court stated as follows: It is trite that for the charge of delement to stand, the Prosecution must prove the age of the victim (must be a minor), penetration and a clear identication of the perpetrator. These are the ingredients of the oence established at Section 8(1) of the Sexual Offences Act No. 3 2006. 26. Thus, the ingredients of this oence that are required to be proven are: a. Age of the minor, b. Penetration, and c. the identity of the accused person. A. Age Of The Minor 27. The court in Moses Nato Raphael vs. Republic Criminal Appeal No. 169 OF 2014 [2015] eKLR stressed that the age of the complainant is relevant in two instances, one in proving that the complainant was a minor in order to establish the oence of delement, and secondly to establish the age of the complainant for purposes of sentencing. The punishment for the oence of delement under the Sexual Offences Act vary depending on the age of the minor. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/919/eng@2026-09-07 5

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28. The Court stated as follows: On the challenge posed by the uncertainty in the complainants age, this Court had occasion to deal with similar issue in Tumaini Maasai Mwanya vs. R Mombasa CRA No. 364 of 2010 where the Court held that proof of age for purposes of establishing the oence of delement which is committed when the victim is under the age of 18 years should not be confused with proof of age for purposes of appropriate punishment for the oence in respect of victims statutory categories of age. As long as there is evidence that the victim is below 18 years, the oence of delement will be established. The age, which is actually, the apparent age, only comes into play when it comes to sentencing. The contradictions in respect of the child’s age cannot therefore assist the appellant to avoid criminal culpability.” 29. In Hadson Ali Mwachongo vs. Republic (2016) eKLR, the Court of Appeal stated that:The importance of proving the age of the victim of delement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the oence of delement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello vs. Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: “In its wisdom, Parliament chose to categorize the gravity of that oence on the basis of 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. This must be so because dire consequences ow from proof of the oence under section 8(1).” 30. The above authorities explain why it is important to establish and prove the age of the victim in such cases. 31. The court in Thomas Mwambu Wenyi vs. Republic, Criminal Appeal No. 21 of 2015 (2017) eKLR listed several ways by which the age of a victim can be proved as follows: 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. 32. The prosecution in order to prove the age of the minor relied on the age assessment which was produced as PEXH-3. This was the only document which was produced before court to try to prove the age of the minor herein. The charge sheet indicated the age of the minor as being 12 years old. The minor indicated her age as 12 years while under cross-examination. The mother of the minor indicated that the minor is 12 years old having been born on 7/7/2014. From the mentioned date to the time the oence allegedly occurred, then the minor would be 11 years 5 months old. She however did not produce the birth certicate alleging that the same had been lost as a result of a re incident on her house. Thus both the PW1 and PW2 did not indicate the source of their information as to regards the age of the minor. Thus the court only remains to rely on PEXH-3 which is the age assessment form. The same having not been challenged in any manner whatsoever and the court having observed the victim while testifying and based on the Moses Nato Raphael decision above, the victim is a minor and below the age of 18 years. 33. The medical documents presented before court indicated the age as 11 while the mother on the other hand stated that the minor was born on 7/7/2014 which explains her insistence during the hearing https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/919/eng@2026-09-07 6

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that she was 12 years old. Thus, when accused of deling a minor of 11 years and below, the minimum sentence is life sentence, while for age of 12 to 15 the minimum sentence is 20 years. Thus, the accused shall benet from the least punishment due to the uncertainty of the age and as such, it shall be taken that the minor is 12 years old for purposes of this case. B. Penetration 34. Section 2 of the Sexual Offences Act 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.” 35. In the case of Bassita vs. Uganda S. C Criminal Appeal Number 35 of 1995, the Supreme Court of Uganda stated that:“ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of delement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that it is sucient to prove the case beyond reasonable doubt.” 36. The absence of the hymen is a clear indication that there was penetration and further the testimony of the victim as to what happened is also evidence in support of there being penetration. 37. The High Court in Julius Kioko Kivuva vs. Republic [2015] KEHC 712 (KLR) stated as follows when getting the evidence of penetration: Evidence of sensory details, such as what a victim heard, saw, felt, and even smelled, is highly relevant evidence to prove the element of penetration, as a victim’s testimony is the best way to establish this element in most cases. The specicity of this category of evidence, even though it may be traumatic, strengthens the credibility of any witness’s testimony, and is particularly powerful when the ability to prove a charge rests with the victim’s testimony and credibility as it does in this appeal. 38. PW4 the doctor who observed the minor herein at the hospital indicated that she had bruises on her vagina walls and also a white discharge. It was his testimony that he observed the minor on the 28/12/2026, a day after the incident. The incident took place on 27/12/2026. The minor on the other hand also stated that the accused removed his “mdudu” and inserted on her vagina and she felt very painful. It was her testimony that this was not the rst time the accused had done such an act to her. This is in line with the testimony of the PW4 who also testied that the minor at the time of the visit to the hospital was not virgin, to mean she had a sexual encounter(s) previously. The minor also stated in her testimony that she bled on her private part as a result of the actions of the accused. This is further corroborated by the evidence of PW3 that when he observed the minor she had bruises on her vagina consistent with someone who had been deled. The cause of the bruises is attributed to a penis. 39. Furthermore Section 124 of the Evidence Act provides as follows: 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: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/919/eng@2026-09-07 7

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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. 40. Thus, the minor during her testimony described the dressing of the accused person on this particular day which description was not disputed by the accused person. I also had a chance to observe the minor testify in court, the way she testied and her demeanor during the long cross-examination by the accused herein, she remained unshaken in her testimony hence she came out as someone who was truthful and honest in her narration to the court. Based on the evidence of PW1 and PW3, I am satised that the element of penetration has been suciently proved by the prosecution. C. Identity Of The Accused Person 41. The issue of identity is key in the such cases just like the other ingredients mentioned above. The evidence before court from both sides in this case is to the eect that the parties herein are neighbors who are well known to each other. The accused in his testimony stated that he knows the complainant who used to call him “ankoo” and it was his testimony that he was involved sexually with the mother. The complainant on the other hand stated that she knew the accused person herein for a period of over 5 years. It was her testimony that he is known as “Babu Aboboti” and she further stated that her mother used to refer to him as “baba” hence the reason for them calling him “babu”. The court in Said alias Mwenye Fidla vs. Republic (Criminal Appeal E023 of 2025) [2026] KEHC 11582 (KLR) in a case where the incident took place during the day stated as follows: …the victim testied that the event took place during the day and the undisputed evidence was that the appellant was the victim’s neighbour. It cannot therefore be said that the victim mistook the appellant to another person. 42. Therefore I am satised that the accused person herein was well known to the victim and the mother too hence there cannot be any mistaken identity as to who committed the alleged act narrated by the victim. 43. The accused in his defence stated that the charges were fabricated by the PW2 the mother of the minor after he told the other bodaboda riders that she is a prostitute. The defence and the issues raised therein were never brought up during the hearing of the prosecution case. Thus the defence appears to me to be an afterthought by the accused to get his way out of the case herein. Even more, the accused in his testimony did not provide evidence of being a bodaboda rider, he did not know the number plate of his motorbike despite it being an important part of his testimony in this case, he also did not say when his interaction with the mother of the minor began and when their issues started and he could not even mention the name of the persons he allegedly told the story that PW2 was a prostitute. Without such details, the story of the accused fails to displace the evidence presented by the prosecution. 44. The evidence presented by the prosecution was cogent and displaces any defence of a malicious intention on the part of PW2 the mother of the victim herein as alleged by the accused person. D. Conclusion 45. In view of the foregoing, I nd that the prosecution has proven its case against the accused person beyond reasonable doubt. Consequently, I hereby nd the accused person Guilty and proceed to Convict 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. Having https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/919/eng@2026-09-07 8

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convicted the accused person on the main count of delement, I make no orders as to the alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. JUDGMENT READ, SIGNED AND DELIVERED IN COURT AT HOLA THIS 7TH DAY OF SEPTEMBER, 2026 W.O KOMBWAYO, RM Delivered in the presence of: Mr. Kagema for the State Accused- Present CA- Omar https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/919/eng@2026-09-07 9

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