By Joyce Ochieng

Sexual offences against minors are regarded as very serious crimes in Kenya. A child or a minor is any person who has not attained the age of eighteen years.[1] A national survey on Violence Against Children in Kenya conducted in 2010 found that 23% of girls and 12% of boys aged 13–17 had experienced sexual abuse. Among 18–24-year-olds, 32% of women and 18% of men experienced childhood sexual abuse before age 18.[2]

The Constitution upholds the paramount principle which safeguards the best interests of the child, protects the child from all manner of abuse and recognizes their vulnerable nature and need for protection by the State.[3] Furthermore, the Sexual Offences Act, 2006 criminalizes any acts of sexual violence against minors, including defilement and indecent acts. Children are also regarded as vulnerable witnesses on account of their age, and appropriate measures should be taken in safeguarding their interests during trial.[4] The penalties ascribed in the Sexual Offences Act range from lengthy prison terms to life imprisonment. In this regard, the Supreme Court, in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023)[5] held that the blanket application of the ratio decidendi in the Muruatetu case by the Court of Appeal in Nyeri conflated the concept of mandatory sentences with minimum sentences, thereby supporting the position that life imprisonment in sexual offences cases is in fact grounded in statute, and lawful.

Corroboration refers to additional evidence that provides certainty or supports a statement of fact. Evidence that is corroborated is relevant, admissible, credible, independent and implicates the accused according to the manner that a specific statute requires. Corroboration reduces the chances of convicting an innocent person.[6] Historically, the Kenyan courts viewed sexual offences with suspicion, hence the requirement to seek corroboration of the complainant’s testimony, as a matter of practice, before a conviction could be entered.[7]

However, in Mukungu v Republic (2003), the Court of Appeal declared that the practice requirement for corroboration in sexual offences was discriminatory against women and girls and therefore unconstitutional. The court acknowledged the caution in relying solely on the complainant’s testimony as was stated in Maina v Republic [1970] EA 370 but noted that the same caution was not required concerning women and girls’ testimonies in other offences. The court relied on the cases of Republic v Cherop A Kinei and Another [1936] 3 EACA 124 and Chila v Republic [1967] EA 722 at 723 (CA), where uncorroborated evidence was used to convict the accused persons.[8] These exceptions applied where the court, despite duly cautioning itself on the risks of relying on uncorroborated evidence, was satisfied that the complainant is telling the truth.[9] Further, section 124 of the Evidence Act No. 46 of 1963 was amended by section 103 of the Criminal Law (Amendment) Act, 2003, and later by the Sexual Offences Act, 2006, formally incorporating the aforementioned exception in statute, in relation to corroboration of evidence in sexual offences cases. The 2003 amendment was particularly about children and read as follows:

“Section 124 of the Evidence Act is amended by inserting the following proviso–

Provided that where in a criminal case involving a sexual offence the only evidence is that of a child-of tender years who is the alleged victim of the offence, the court shall receive the evidence of the child and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the child is telling the truth.”

Section 124 of the Evidence Act, pursuant to the amendment by the Sexual Offences Act, states that:

“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 offence, 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:

Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, 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 satisfied that the alleged victim is telling the truth.”

The effect of this amendment is that an accused person can be convicted solely on the testimony of the victim, provided that the court is satisfied that the victim’s testimony is truthful, and records its reasons or justifications for relying on the uncorroborated evidence. Despite the comprehensive legal framework, successful prosecutions are often barred by the evidential hurdle of corroboration. In practice, the courts continue to emphasize that the testimonies of victims should be corroborated. The presence or absence of corroboration often decides the outcome in sexual offences cases. Notwithstanding the clearly stipulated section 124 of the Evidence Act, judicial officers have continuously showed reliance on medical reports, additional witnesses, circumstantial evidence and other corroborative materials in making their determinations, as evidenced below.

Case Law Analysis: Michael Waweru case vis a vis Peter Mwaura case

In Republic v Michael Waweru Kihiu (MCSO/40/2020), Utu Wetu Trust represented the victim’s family, providing legal support and safeguarding the survivor’s interests throughout the proceedings. The accused was convicted of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, 2006, and sentenced to twenty years’ imprisonment by the Ruiru Law Courts. The alternative charge was committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The judgment, delivered on June 19, 2023, turned on three key issues: whether the victim was a child; whether penetration occurred; and whether the accused was positively identified as the perpetrator. This tri-partite test remains a consistent judicial standard in the determination of defilement cases in Kenya.

In determining whether the victim was a child or not, the court relied on her birth certificate which established that she was a minor at the time of the alleged offence. The question of age is one of fact that determines the sentence to be imposed.[10] It can be proven not only by documentary evidence such as a birth certificate, age assessment report and baptismal card, but also through the oral testimony of a child who is considered sufficiently intelligent, or that of the child’s parents or guardians.[11] The prosecution bears  a higher responsibility in guiding children of tender years in effectively giving their testimony to establish the ingredients or elements of the alleged offence.[12] Unfortunately, in some instances, the Court has cited lack of documentary evidence to prove the age of the complainant (where the complainant was about 4 years old) as one of the reasons for acquitting an accused person, despite oral evidence from the victim’s mother.[13]

On whether there was penetration, the court relied on the P3 form, the Post Rape Care form, the treatment notes and the testimony of two witnesses, the victim and a Clinical Officer where the victim was treated. Proof of partial or complete insertion of one’s genital organs into another’s according to section 2 of the Sexual Offences Act is necessary to convict an accused person of defilement. Here, the courts have consistently depended on corroborating evidence to prove penetration.[14] This is an indication that in practice, section 124 of the Evidence Act does not suffice when it comes to proving penetration. Courts tend to rely on medical evidence – medical officer’s testimony and documentary evidence or medical assessments – to ascertain penetration. Nonetheless, in other circumstances, the court has held that the fact of rape can be proved by the victim’s oral testimony or by circumstantial evidence and not just medical evidence.[15]  Furthermore, section 36(1) of the Sexual Offences Act is discretionary, and not mandatory, with regards to the collection of medical or forensic samples to establish the linkage between the accused person and the offence.

The need for corroboration of evidence on the aspect of penetration is also problematic, particularly where the victim is male. In the case of Republic v Wekesa (Sexual Offence E004 of 2021) [2022], [16] the accused person was charged with defilement and indecent assault. The 13-year old gave sworn evidence after voir dire examination. The trial court underscored the difficulty in scientifically proving defilement where the victim is a male minor. He did not have any injuries in his genitalia, neither could any specimen be extracted to prove defilement. The court relied on the victim’s testimony, being satisfied that he was cognizant of his duty to tell the truth, and was in fact truthful to convict the accused person.

On the identification of the perpetrator, the court opined that the victim had the opportunity to clearly see and identify the perpetrator, solely relying on the testimony of the victim and recognizing that her testimony stood the test of cross-examination by the accused’s counsel. The court relied on section 124 of the Evidence Act in the identification of the perpetrator.

In the case of Williamson Sowa Mbwanga v Republic [2016],[17] the Court of Appeal at Mombasa held that the 30- year old appellant was rightfully convicted of defiling a 17-year old girl. The Court stated that:

“The import of the proviso to section 124 of the Evidence Act is that the trial court can convict an accused facing a charge of defilement solely on the evidence of the victim, if for reasons to be recorded, the court is satisfied that the victim is telling the truth. Medical evidence is not mandatory under that proviso, a position which was reiterated thus by this Court in George Kioji V. Republic, CR. APP. NO. 270 of 2012 (Nyeri):

“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We, however, hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”

Additionally, in the case of Dennis Osoro Obiri v Republic [2014],[18] the appellant was charged with defiling an 11-year-old girl or less. The trial court conducted a voir dire examination to ascertain the victim’s competency to testify. The victim, who was cleared to give unsworn evidence, identified the appellant as the perpetrator and vividly described the act of defilement against her by the appellant. The Court of Appeal held that section 124 of the Evidence Act creates an exception to the general rule, and that the sole testimony of a complainant will suffice to convict an accused person if the court is satisfied and gives reasons for such satisfaction that the victim is a credible witness. The Court also affirmed that medical evidence directly linking the accused to the offence was not a necessity, where sufficient medical evidence had been established to prove defilement, and the identity of the perpetrator.

The offence of committing an indecent act with a child[19], is often presented as an alternative charge to defilement. An indecent act is defined as an unlawful and intentional act that causes:[20]

(a) any contact between any part of the body of a person with the genital organs, breasts, or buttocks of another, but does not include an act that causes penetration; or

(b) The exposure or display of any pornographic material to another person against their will.

The essential ingredients of the offence include: the age of the victim; intentional contact by the accused with the genital organs, breasts, or buttocks of the child; the absence of penetration; or the unlawful exposure or display of pornographic material to a child; and the absence of lawful justification for the act complained of.

Where there is insufficient evidence to support a conviction on a defilement basis, a court may convict the accused of attempted defilement or committing an indecent act, where the ingredients of the offence have been established beyond a reasonable doubt.[21] Unlike defilement cases, offences involving indecent acts present significant evidentiary hurdles, as they rarely produce physical or medical evidence capable of substantiating the allegations. The absence of eyewitnesses or corroborative circumstantial evidence further weakens the prosecution’s case, particularly where courts adopt a rigid approach to corroboration. As a result, many such cases falter at the trial stage despite the victim’s consistent and credible testimony. This evidentiary gap underscores the broader challenge of securing justice in sexual offence cases that do not involve penetration, where the survivor’s account becomes the principal, and often sole, piece of evidence.

A clear illustration of these challenges arose in Republic v Peter Mwaura Njoroge (MCSO/E036/2021), where Utu Wetu Trust still acted as Victim’s Counsel, representing the minor survivor and her family. The accused was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The prosecution produced the complainant’s birth certificate to establish her age at approximately 12 years, and the accused’s identification was not disputed. The court accepted that the complainant was categorical that the accused leaned close to her, causing genital contact that made her uncomfortable. Despite this clarity, the court placed significant weight on contextual factors. It noted that the child had been administered a pill before the medical procedure, rendering her drowsy, and that the EEG procedure demonstrated by the accused inherently required some physical proximity. Although section 124 of the Evidence Act permits reliance on the uncorroborated testimony of a complainant in sexual offences where the court is convinced of the witness’s truthfulness, the magistrate held that the complainant’s evidence required corroboration from either the investigating officer or another hospital witness to clarify the procedure’s nature and the possibility of incidental contact. The accused was eventually acquitted on December 16, 2024.

The decision reflects a recurring judicial tension between safeguarding the rights of the accused and ensuring that survivors of non-penetrative sexual offences obtain meaningful justice. This tension underscores the delicate balance courts must strike between evidentiary caution and the moral imperative to protect victims of sexual abuse. It also highlights the need for broader interpretive guidance on the application of section 124 of the Evidence Act in cases of indecent acts, where an overly rigid insistence on corroboration risks diluting the very objectives of the Sexual Offences Act to protect vulnerable persons and hold perpetrators accountable for all forms of sexual misconduct, whether penetrative or not.

Despite the clear statutory definition and legislative intent underpinning the offence of an indecent act, Kenyan courts have continued to adopt a cautious approach that demands corroboration of a victim’s testimony, even in cases where the law expressly permits reliance on uncorroborated evidence. In Waithaka v Republic [2025],[22] the High Court examined the complainant’s testimony in detail and sought corroboration from other witnesses before affirming the conviction. This approach reflects a deeper judicial inclination toward evidentiary conservatism, one that privileges corroboration as a safeguard against wrongful conviction but, in doing so, often diminishes the credibility of the victim’s direct account. While the rationale for such caution may stem from the principle that criminal liability must be established beyond a reasonable doubt, it inadvertently imposes an evidentiary burden that is inconsistent with both the text and spirit of section 124 of the Evidence Act. That provision was designed to acknowledge the inherent difficulties in proving sexual offences, recognising that such crimes frequently occur in private, without witnesses or physical traces. By allowing a court to convict on the sole testimony of the complainant where it is satisfied that the witness is truthful, the law intended to affirm the probative value of a survivor’s account and dismantle the historical stigma that their evidence is inherently unreliable.

However, the persistent judicial insistence on corroboration effectively reinstates a discredited evidentiary standard, risking silencing victims and eroding public confidence in the justice system’s ability to protect them. It also creates a hierarchy of harm in sexual offences where penetrative acts, often accompanied by medical or forensic evidence, are more likely to result in conviction, while non-penetrative acts, though equally violating, remain under-prosecuted or dismissed for lack of corroboration. This practice undermines the transformative purpose of the Sexual Offences Act, which sought to move beyond the archaic evidentiary demands of common law and establish a victim-centred framework grounded in the principles of dignity, equality, and access to justice. To bridge this gap, there is an urgent need for jurisprudential clarity and judicial training on the application of section 124, ensuring that courts exercise their discretion with sensitivity to the nature of sexual crimes and the evidentiary realities that accompany them. A shift toward survivor-centred adjudication anchored in both legal sufficiency and empathy would advance the broader constitutional commitment to protect vulnerable persons from sexual violence in all its forms.

Conclusion

The courts have tended to demonstrate greater confidence in making determinations where multiple strands of corroborative evidence exist. While this approach serves as a safeguard against wrongful convictions, it equally exposes a critical vulnerability, the risk of acquitting offenders in cases where violations have genuinely occurred but cannot be corroborated. Cases involving indecent acts are particularly susceptible to such outcomes due to the inherent difficulty of proving non-penetrative sexual contact, which often occurs in private and leaves no physical or medical trace. Moreover, section 124 of the Evidence Act, enacted to eliminate the rigid corroboration requirement and empower courts to rely on a victim’s credible testimony, has not been consistently applied in practice. This judicial reluctance undermines the statutory intent and places an undue evidentiary burden on victims, who continue to bear the consequences of systemic inconsistency and the reintroduction of corroboration barriers through judicial discretion. A more balanced approach is required, one that treats corroboration as a supportive evidentiary tool rather than a mandatory precondition for conviction. Strengthening judicial appreciation of the credibility of children’s testimonies, particularly through thorough voir dire examinations to assess their competence, is a key step toward achieving this balance. Ensuring that corroboration serves justice rather than impedes it will advance a more survivor-centred application of the law and align judicial practice with the protective and transformative objectives of the Sexual Offences Act.

References 

[1] The Constitution of Kenya 2010, art 260; Children’s Act 2022, s 2.

[2] MW Mwangi and others, ‘Perpetrators and Context of Child Sexual Abuse in Kenya’ (2015) 44 Child Abuse & Neglect 46 https://pmc.ncbi.nlm.nih.gov/articles/PMC4826906/ accessed 9 October 2025.

[3] Ibid, arts 53(2), 53(1)(d) and 21(3).

[4] The Sexual Offences Act 2006, s 31.

[5]Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment).

[6] Adrian Keane, The Modern Law of Evidence (Oxford University Press 2008) 219 The modern law of evidence : Keane, Adrian, LL.B : Internet Archive accessed 9 October 2025.

[7] Kyalo Mbobu, ‘John Mwashigadi Mukungu v R, Criminal Appeal No 227 of 2002 [Unreported]: A Sad Commentary on How Not to Make Good Law’ (2004) 1 The East African Law Journal (Case Reviews) https://erepository.uonbi.ac.ke/handle/11295/100876?utm accessed 9 October 2025.

[8] Mukungu v Republic (2003) AHRLR 175 (KeCA) Kenya: Mukungu v Republic (2003) AHRLR 175 (KeCA 2003) accessed 2 October 2025.

[9] Keane, The Modern Law of Evidence, 219.

[10] Sexual Offences Act 2006, s 8(2-4).

[11] Munene v Republic (Criminal Appeal E001 of 2021) [2025] KECA 1375 (KLR) (25 July 2025) (Judgment); Suleiman v Republic (Criminal Appeal E143 of 2023) [2025] KECA 1108 (KLR) (20 June 2025) (Judgment); Muteti v Republic (Criminal Appeal 16 of 2022) [2025] KECA 123 (KLR) (7 February 2025) (Judgment).

[12] Wanjiru v Republic (Criminal Appeal E129 of 2022) [2025] KEHC 4732 (KLR) (Crim) (26 March 2025) (Judgment).

[13] David Nyaruri Bosando v Republic [2015] KEHC 2168 (KLR).

[14]Kigen v Republic (Criminal Appeal 62 of 2018) [2025] KECA 131 (KLR) (7 February 2025) (Judgment); Mwika v Republic (Criminal Appeal 152 of 2018) [2025] KECA 1400 (KLR) (31 July 2025) (Judgment); Waithiegeni v Republic (Criminal Appeal 2 of 2019) [2025] KECA 121 (KLR) (23 January 2025) (Judgment.

[15] JKM v Republic (Criminal Appeal 58 of 2018) [2025] KECA 242 (KLR) (14 February 2025) (Judgment) [2025] KECA 242 (KLR).

[16] Republic v Wekesa [2022] KEMC 21 (KLR).

[17] Williamson Sowa Mbwanga v Republic [2016] KECA 147 (KLR).

[18] Dennis Osoro Obiri v Republic [2014] KECA 598 (KLR).

[19] Sexual Offences Act 2006, s 11.

[20] Ibid, s 2.

[21] Nganga v Republic [2023] KEHC 3600 (KLR).

[22] Waithaka v Republic (Criminal Appeal E001 of 2023) [2025] KEHC 12283 (KLR).

The Author is a programs Assistant at Utu Wetu