IN THE REPUBLIC OF KENYA

IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT RUIRU

S.O CASE NO.2 OF 2020
REPUBLIC VS DANIEL KIOKO MOVE.
JUDGEMENT.

The accused is facing charges of defilement contrary to section 8 (1) as read with section
8(4) of the Sexual Offences Act No.3 of 2006. The particulars of the charge are that on
the day of 1st January 2020 at the Mwihoko area in Githurai Kimbo within Kiambu
County, the accused intentionally and unlawfully caused his penis to penetrate his vagina
M.N.M a child aged 16 years. The accused is also charged alternatively with committing
an indecent act contrary to section11(1) of the Sexual Offences Act No.3 of 2006. The
particulars of the offence are that on the day of 1st January 2020 at Mwihoko area in
Githurai Kimbo within Kiambu County, the accused intentionally and unlawfully touched
the vagina of PW1 a child aged 16 years with his penis.
The prosecution called witnesses to prove her burden in support of the charge brought
against the accused.
In summary, the first prosecution’s witness is the minor or victim of the accused’s act. It
is in her evidence in court on 22nd January 2020 where she stated that, on the day when
the offence was committed, she recalled the event. She stated that she was sent to the
shop to get potatoes on 26th December 2019 where she met David and later on asked him
where to find potatoes since she didn’t find any and thus went with him to get them. She
later averred that after he bought the potatoes, he told him that he had a gift for her and
went with her to give the gift to her at his house. He then locked the door behind her and
put his radio on high volume and began pulling her and overpowered her where he then
took her to the bed and forcefully removed her clothes as he defiled her. She stated that
he then had sex with her and inserted his male organ into her vagina. She further stated
that after he was done, he later escorted her until when they met with her mother, sister,
brother and cousin where they got hold of the accused person after seeing her with him.
The accused was taken to the police station after being confronted by the family relatives
of the victim where he was charged. She then told the relatives where she was and replied
that she was with the accused person, whom he forced himself on her, after which she
told them that, she was taken to the hospital and gave her treatment notice from
Eastleigh.
The second prosecution’s witness, Jane Njeri Mwangi, provided her evidence statement
on 27th January 2021. She stated that on the day of 1st January 2020, she had gone to

1
visit her aunt with her cousins including the complainant who is a minor. The minor was
later sent to the market where she took a long time to return home and thus they later
decided to go back to their homes at around 8 pm. She averred that as they were on the
road, they found the complainant walking with the accused person and decided to hide in
an unfinished building until they were close to their position and caught both of them.
She stated that the minor’s brother caught the accused person while she got hold of the
minor and asked her why she had been late and panicked. That is when she replied to her
that she had been in the accused person’s house where he locked her in and put the radio
on high volume and later on raped her and did not use protection. She later told the court
that they took the accused person to the police station and later were told by the chief’s
office to take the minor to the hospital in the company of Moruca where she was
confirmed to be defiled. She stated that she was then treated and given medicine
including P2 and PEP.
PW3, Margaret Wanjiru alias Monica, provided her evidence on 27th January 2021 in
court. She stated that she had gone to visit her mother with her brother Mwangi, her
cousin Njeri and her mother. She later stated that when Pw1 was sent to buy rice,
potatoes, and tomatoes from the market at around 5 pm but had taken a long time until at
around 7:30 pm when they decided to look for her. She stated that while walking on the
road, they saw the accused person with her and were walking while holding hands and
they hid until the accused person and the minor got near them and caught both of
them.Pw1 panicked and refused to speak but was confronted by Pw2 until she told them
what had happened., that is, she went to the accused person’s house to get a gift from the
accused from where she was then defiled. They took the accused person who had refused
to walk but was later forced to go to the AP post. She stated that Pw1 was then taken to
the hospital and confirmed that she was defiled.
PW4, Lorna Kerubo, provided her evidence to testify on the case on 12th August 2021
in court. She stated that Mary Ruth Njeri aged 14 years accompanied by her sister
Monica Wanjiru to their facility at 12:50 am on 2nd January 2020 where she stated to
them that she was a victim of sexual violence on 1/1/2020 at 1900hrs in Mwihoko by a
known person. She then examined her where she found that on her external genitalia,
there was no debris and was normal but had a tear on the posterior forchette. She noted
that there was slight blood on the labia and her vagina was hyperaemic with blood stains
as her vagina had been reddening and her hymen had stretched which occurs in teenage
girls. She also pointed out that she had no injuries on her arms and conducted HIV,
pregnancy test and a vaginal swab on which had degenerated spermatozoa. Her
pregnancy test was negative and was given PEP for treatment and vaccinated for
Hepatitis and Tetanus. She stated that the clothing the patient was wearing was a purple

2
and white panty which was stained and wet at the bottom with blood and brownish
liquids. She stated that she is continuing with counselling. The medical certificate was
written on 3/1/2020 by herself and the P3 form on the same day which had been produced
in court as PEXH 3. The PRC form was also produced by the PW 4 on 2/1/2020 as
PEXH 1 and the treatment note as PEXH 2.
PW5, PC Machas Kinyua Wanjohi, provided her evidence on 27th November 2020 in
court. She stated that on the day of 1/1/2020 she was based at Mwihoko Police Station
and was at the police station where at around 8:30 pm villagers came to the police station
arresting a man for defiling a girl. They were accompanied by the girl defiled who is a
minor and was then authorised by her to be taken to MSF for examination and confirmed
that she was defiled. She then charged the man with the offence before the court and she
then interrogated the complainant on the incident which she revealed that she was sent to
the shop where she then met the accused person. PW 1 gave the same statement as her
evidence to the Pw5. She then gave the panty of the minor as it was provided before the
court as it is striped with white and purple as provided evidence PEXH 5. The witness
then did an age assessment since the complainant did not provide the birth certificate and
found it as 16 years as dated 16th November 2020. The defilement as stated by the
witness had occurred on 1st January 2020 and was confirmed on 2nd January 2020 and
the accused was the one brought to the station where he told her that she had sex with
someone who had appeared as someone over 18 years and not someone under 18 years.
In the defence case of the accused, the accused denied the charges on both charges. In his
evidence, he stated that he was denying the charges placed against him and said that she
met him and told him that she is living with her family as she had come to town to her
aunt to get a job. He also stated that she said that she had finished school and her ID was
kept with her aunt and was asking him to get a job in a salon since she said she had
studied a course in the area but stated that she did not have a phone. He then left her at
Orange house as they agreed that they would meet at the same place every week at the
same time as she had duties at home and waiting for a friend. He stated that anytime he
met her she wasn’t in her uniform and never told him of being a student or underage as
she looked mature in looks and her way of speech could not tell if she is underage. One
day the complainant came to get the accused’s home asking for accommodation as her
mother used to mistreat her and told him that there was no problem with having sex with
her. As they went back home, the family relatives started assaulting him and alleged that
the complainant is underage and in school, he was surprised to learn about it and found
that she had lied to him. He then stated that he was taken to the police station where the
I.O told him to pay 100,000 Kenya shillings to be released which he did not have. He

3
later said that it is when they locked him up in the cells with the offence charged before
the court.
The court, at this stage of proceedings, is tasked with the role of determining the issues
presented from the evidence produced by each side:
1. Whether or not the age of the complainant has been proven.
2. Whether or not penetration has been proven.
3. Whether or not there was a relationship between the complainant and the
accused person.
4. Whether or not the accused person is the positive identity of the assailant
of the charged offence and the child in question is a victim of the charged
offence.
5. Whether or not the burden of proof by the prosecution has been proved
beyond a reasonable doubt.
Generally, in the nature of these criminal cases, the burden of proof rests on the
prosecution to provide the required standard of proof beyond a reasonable doubt in the
regard to the main count of the offence, that is, section 8 (1) of the Sexual Offences Act
which states that any person who commits an act which causes penetration with a child is
guilty of an offence termed defilement and section 2 which defines the term of
penetration as a partial or complete insertion of genital organs of a person into the genital
organs of another thus the court has to consider this with the issues presented by evidence
in both submissions of the prosecution and the defence.

In the first issue, the age of the complainant is generally the main ingredient for proving
the charged offence. As stated in the case of Fappyton Mutuku Ngui vs Repulic at
Machakos Criminal Appeal No.296 of 2010 where averred that proof of age is important
in proving offences of defilement or attempted defilement as it is the age of the victim
that determines the amount of sentence to be imposed on conviction. It also stated that
conclusive proof of age does not necessarily mean a certificate. On the determination of
age, the age of the complainant was well established by the production of the
Prosecution’s exhibit from the 5th witness, that is, an age assessment done by the police
officer stationed at the Mwihoko Police station where the event was reported. The record
of the voire dire examination also reveals that the complainant who is the 1st witness in
the prosecution case is 14 years. On the defence side, the accused stated that the
prosecutor did not have sufficient claim on her age and applied for an assessment which
provided the age as 16 and not 14 thus proving to the court that the charge sheet is
defective. On that note, l have found that the charge sheet is not defective on the grounds
of the particulars of the offence which on that note the charge sheet was amended on the

4
date of 27th October 2021 thus the defence has proven beyond a reasonable doubt on
their claim of a defective charge sheet in respect to the statutory provision under section
137 of the Criminal procedure Code. On that point, as long as the prosecution proves the
offence under the charge beyond reasonable doubt was done by the accused, the accused
is still charged as per the charge sheet. Concerning the age of the complainant has been
established, the offence under section 8(1) will be read with section 8 (4) of the Sexual
offence Act where the person committing the offence in relation to a child between 16
years to 18 years is liable for a conviction of not less than fifteen years imprisonment.

Secondly, the issue of penetration is relevant to this case where section 2 of the Sexual
Offences Act defines the term penetration. The ingredient importance of this is stated in
the case of John Otieno Mumbo vs Republic where it states that the ingredient is relevant
and essential in proving the charge of defilement. The first witness, who is the
complainant stated in her evidence that she was forced into bed and removed her clothes
and forced himself on her by inserting his male organ into her vagina. This is also proved
as presented by the 4th prosecutor’s witness who assessed the minor who is the
complainant after the offence had occurred. She stated that upon examination, there was a
tear on the posterior forchette and slight blood on the labia and the vagina was
hyperaemic with blood stains which had been reddening. She also stated that the hymen
was stretched and had torn and had an emphasis on fresh bleeding tears at 7 and 11
o’clock. The produced Post Rape Care form and the P3 form indicated the above
statements. From this evidence, the prosecution has shown without reasonable doubt that
the complainant was penetrated.
Another issue to be pointed out by the court is the possible identification of the accused
person as the assailant of the complainant and any relevant indication of a relationship
between the complainant and the accused person. In relation to the prosecution’s case,
she led the evidence through the witnesses as their own evidence in chief in proving their
burden. She led through her 1st witness who told the court how the entire occurrence
happened from the time she was sent to the shop to where she met the accused person and
how she was led to his house and later on had sex with the accused involuntarily and how
she was found by her relatives and taken to hospital. She also stated how the accused
person was caught by her relatives, that is, Pw2, and Pw3 who took him to the police
station and found Pw5 who advised them to take Pw1 to the hospital to get a medical
assessment and report which Pw4 has produced and provided in court.
In the submissions made by the accused person, the accused states that the credibility of
the accused is questioned due to her contradictions where the accused asks for the court
to consider that the complainant’s act on being the examination in chief and state the

5
accused details while denying being in relationship with the accused person. The accused
person also claims that the complainant is denying the truth by telling open lies in court
in which she alleges being raped while at the same time claiming to have been brought to
the accused person’s home for a gift from the accused and later found by Pw2 and Pw3
holding hands. In this, the accused denies the claim of the complainant being raped while
denying her proven evidence proven fact of holding hands with the accused person which
has been established as true by other witnesses and thus the accused question the
credibility of identifying the accused as the assailant of the offence. The main matter lies
on the accused to prove that the accused was not forced into sex and voluntarily took
herself to the accused’s house to contribute to consensual sex and thus prove the
complainant’s intent of saving herself by lying to the court.
The other issue brought by the accused is under the provision of a statutory defence under
sections 8 (5) and 6 of the Sexual Offences Act which provides that where defence
against a charge under defilements can be proved in terms of where the accused was
deceived or reasonably believed to believe that the child is over the age of 18 at the time
of the alleged commission of the offence. Thus, they claimed that on the account of
establishing the penetration, age and identification have been established, the accused
person is proven guilty and stated that this is a strict liability and the mental factor is seen
as irrelevant. They submitted a statutory defence on grounds of purely engaged
consensual sexual indulgence and deception from the complainant.
In these issues, the complainant did not prove to be deceptive of any nature or showed
any lead in framing the accused person. The Pw1 gave detailed evidence of what had
occurred to her and provided a clear indication of escape from the accused person which
proves a sense of the hostile nature between the accused person to the complainant. In
this sense, such a situation cannot prove a claim of deception or a stable environment for
a relationship to be established. Even the law does not account for the complainant as
legible for a relationship in regard to the defence submissions on this. In my opinion, the
defence has not given constructive and procedural evidence to support his submissions
and acts such as mere statements relevant to this case.
Thus, on that account, the complainant proves to be truthful and in response that the
court has established that the standard of proof presented by the prosecution is beyond
reasonable doubt and thus l find the person guilty of the offence of defilement contrary to
section 8(1) (4) of the Sexual Offences Act No.3 of 2006 and as a result, the accused is
proceeded to be convicted of the said offence under section 215 of the Criminal
Procedure Code.
Being guilty of the main count, the alternative charge of committing an indecent act with
a child contrary to section 11 (1) of the Sexual Offences Act No.3 of 2006.

6
DATED AT RUIRU THIS 29TH DAY OF JULY 2020

C.A OTIENO OMONDI

SENIOR PRINICPAL MAGISTRATE.