Republic v Kilango (Sexual Offence 3 of 2019) [2025] KEMC 288 (KLR)
The bottom line
#A Makindu court acquitted a man of attempted defilement because the evidence showed only touching, not an attempt to penetrate, and his alibi was never disproved.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was an attempt to defile the minor herein on 3/10/2019
- 2.If so, whether it was the accused person who attempted to defile the minor
- 3.If not, whether an indecent act was committed against the minor on 3/10/2019
- 4.If so, whether such indecent act was committed by the accused person
Key legal issues
#Proof of age of the complainant
Age was proved; the birth certificate showed the minor was born on 11/4/2011 and was about eight years and five months at the time of the incident. All the prosecution needs is evidence that the victim was below eighteen years.
Relying on Moses Nato Raphael v Republic and Francis Omuroni v Uganda, the court held that proof of age for purposes of the offence need not be confined to medical or documentary evidence; birth certificate, parents' evidence, observation and common sense suffice. The certificate of birth produced showed the minor was below eighteen years, and there was no contrary evidence.
Whether the evidence established attempted penetration
No. The complainant's evidence, if accepted, showed the accused touched her private parts with his hand; her genitalia was normal on examination. That amounts at most to an indecent act, not an attempted defilement.
Guided by section 388 of the Penal Code and Francis Mutuku Nzangi v Republic, the court held attempted defilement requires overt acts manifesting an intention to penetrate. The P3 form showed the genitalia was normal and no step towards penetration was proved; the ingredients of attempted defilement were not satisfied beyond reasonable doubt.
Competency of the child witness and corroboration
The voire dire showed the minor did not understand an oath; she ought to have been permitted unsworn testimony rather than affirmed, but her evidence was effectively sworn. Corroboration was not legally required but the court warned itself it would be unsafe to convict without it.
Following Maripett Loonkomok v Republic, the 14-year threshold for voire dire applies; failure to conduct voire dire does not vitiate the trial. Per Johnson Muiruri v Republic corroboration is only necessary for unsworn evidence, but per Kibageny Arap Kolil v R the court must warn itself of the danger of convicting on a child's sworn evidence without corroboration. The court found no corroborative evidence.
Alibi and identification of the assailant
The prosecution failed to displace the alibi. The accused, the complainant's grandfather, was well known to the complainant, but the investigation was flawed: the report came two weeks late, statements were recorded after the accused's arrest, and the investigating officer did not testify.
Relying on Kiarie v Republic and Chabah & Another v Republic, the accused bears no burden on alibi; the prosecution had remedies under sections 212 and 309 of the Criminal Procedure Code to rebut it. Given the sequence of events and the absence of the investigating officer, the accused's account was plausible and a reasonable doubt was cast.
Legal principles established
#- The elements of attempted defilement are attempted penetration, proof that the victim was below eighteen years, and positive identification of the accused; there must be an overt act manifesting an intention to penetrate, not a mere intention.
- An alibi does not impose any burden of proof on the accused; the prosecution must displace it, and where raised for the first time at trial the prosecution may rebut it under section 212 of the Criminal Procedure Code.
- The testimony of an investigating officer may be key where an alibi is raised; the prosecution must show through proper investigation that the accused was at the scene and that the alibi is not plausible.
- Suspicion, however grave, cannot form the basis of a conviction; the prosecution must prove guilt beyond reasonable doubt.
Court orders
#- 1.The accused person Cosmas Kisinga Kilango is found not guilty and is acquitted of both the main charge of attempted defilement and the alternative charge of committing an indecent act with a child under section 215 of the Criminal Procedure Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original criminal jurisdiction of the subordinate court under the Criminal Procedure Code over an offence under the Sexual Offences Act; acquittal under section 215 of the Criminal Procedure Code
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The accused person Cosmas Kisinga Kilango is found not guilty and is hereby acquitted of both the main and the alternative charges under section 215 of the Criminal Procedure Code.
In my view, and being guided by the above authorities, for the ofience of attempted defilement to be established, there must be evidence to show that the accused person did certain overt acts which clearly indicated his intention to penetrate the minor.
Suspicion however grave, can never in law form the basis for a conviction.
An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge preferred against him does not in law thereby assume any burden of proving that answer
the time-honoured 14 years remains the correct threshold for voir dire examination.
Having charged the accused person, the prosecution had a duty to show that the accused person’s defence was not plausible. That could only be done by proper investigations and evidence of the same to be tendered in court.
Issues in the judgment
#The complainant's evidence was taken on affirmation despite the voire dire finding that she did not understand the nature of an oath; the court itself noted the uncertainty and that unsworn testimony should have been directed, though it held the error did not vitiate the trial.
The complainant's evidence was inconsistently characterised: at one point the court held that because she gave testimony on affirmation her evidence does not fall under section 124 of the Evidence Act, yet the court also treated her as having given evidence on oath for purposes of the corroboration warning.
The prosecution heard by two earlier magistrates who were transferred; the delivering magistrate did not hear the testimony and relied on the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kilango (Sexual Offence 3 of 2019) [2025] KEMC 288 (KLR)", Case Analysis (2025). Criminal Case (Makindu) - charge of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/288/eng@2025-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.