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High CourtAllowedCriminal Appeal (Makueni High Court)· [2020] KEHC 1652 (KLR)

Walter Muuo Mutuku v Republic

High Court of Kenya
10 November 2020
HOH. I. Ong'udi
4,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Preparation for a crime is not enough for a conviction; the prosecution must prove the physical act of attempted defilement.

What this practically means

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Executive summary

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The Appellant was convicted by the trial Magistrate in Makueni of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act, with an alternative count of committing an indecent act with a child, and sentenced to ten years imprisonment. He appealed on five amended grounds: violation of his Article 50(2)(c) and (j) disclosure rights, failure to prove ingredients of attempted defilement, failure to call essential witnesses (the chief and DO) and produce medical documents, shifting of the burden of proof, and improper handling of voire dire evidence. The complainant, AM, a 16-year-old student, testified that on 13 May 2019 at about 5:20 am she was chased, held and strangled by the Appellant, who told her he wanted to defile her; she bit his finger and was rescued by fellow students. The High Court, on a first appeal, framed four issues. It found no violation of disclosure rights since the Appellant had been supplied with statements and medical documents and raised no objection when they were produced. It held the prosecution was not obliged to call a superfluity of witnesses and the omitted witnesses had little to add. It held AM, at 16 years and seven weeks, was not a child of tender years requiring voir dire examination. On the merits, the court found the evidence showed only preparation, not an attempt: the Appellant never touched her private parts, never tried to unzip his trousers, and was disabled by his bitten finger. The alternative count also failed as no touching of the genital organ was proved. The appeal was allowed, the conviction quashed, the sentence set aside, and the Appellant ordered released forthwith unless otherwise lawfully held.

Key legal issues

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01

Violation of Article 50(2)(c) and (j) rights to disclosure

Holding

No violation; the Appellant was supplied with witness statements and medical documents and raised no issue when they were produced.

Reasoning

The record showed the Appellant took plea on 27 May 2019 with an order for supply of statements at his own cost. He complained of late supply once and obtained an adjournment, later applied for and obtained medical documents, and produced no objection when the treatment notes and P3 form were produced, showing he had been supplied.

p. 4
02

Failure to call the DO, head teacher and parent as witnesses

Holding

Not fatal; the prosecution need not call witnesses to repeat the same evidence, and the omitted witnesses had little to add.

Reasoning

The head teacher only received a report and informed the DO; the parent did not identify the perpetrator. Under sections 144 and 150 CPC the court may summon witnesses but will not call them merely to repeat what has been stated.

p. 5
03

Voir dire examination of the complainant

Holding

Not required; AM was 16 years and seven weeks old, hence not a child of tender years.

Reasoning

Section 19(1) of the Oaths and Statutory Declaration Act applies to children of tender years. The Court of Appeal has defined tender years as 14 years and below. AM's birth certificate showed she was 16, so no voir dire was necessary.

p. 5
04

Proof of attempted defilement

Holding

Not proved; the evidence showed preparation only, with no attempt at penetration and no touching of private parts.

Reasoning

The complainant testified the Appellant dropped her, strangled her and said he would defile her, but never touched her private parts, breasts or buttocks, never tried to unzip his trousers, and was disabled by the bitten finger. The neck injury resulted from the struggle. This amounted to preparation, not attempt, and the alternative count of indecent act also failed.

p. 6

Legal principles established

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  • The actus reus of attempt must be more than mere preparation; mere preparation does not amount to an attempt.
  • A child of tender years for voir dire purposes is a child of 14 years and below; a 16-year-old complainant need not be subjected to voir dire examination.
  • The prosecution is not obliged to call a superfluity of witnesses.

Court orders

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  1. 1.Appeal allowed
  2. 2.Conviction quashed
  3. 3.Sentence set aside
  4. 4.Appellant to be released forthwith unless otherwise lawfully held under a separate warrant

Authorities

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Legislation

  • Sexual Offences Actsections 9(1), 9(2), 11(1)
  • Constitution of Kenya 2010Article 50(2)(c) and (j)
  • Criminal Procedure Codesections 144, 150, 233
  • Evidence Actsections 33, 77(1) and (2), 107, 143
  • Penal Codesection 388
  • Oaths and Statutory Declaration Actsection 19(1)
  • Children's Actsection 2 (definition of child of tender years)

Cases cited (17)

  • Thomas Patrick Gilbert Chomondeley v Republic
    (2008) eKLR

    Prosecution's duty to provide accused with witness statements and documentary exhibits in advance of trial

  • Natasha Singh v CB
    (2013) 5 SCC 741
  • Republic v Ward
    (1993) 2 ALL E.R 557
  • Bukenya v Uganda
    (1972) E.A 548

    Failure to call essential witnesses

  • Nganga v Republic
    Court of Appeal Criminal Appeal No. 50 of 1981

    Failure to call essential witnesses

  • Wendo v Republic
    (1953) 20 EACA 166

    Failure to call essential witnesses

  • Francis Mutuku Nzangi v Republic
    (2013) eKLR

    Definition of attempt - overt act towards effectuating intention to commit an offence

  • Hiram Mwangi Gathonjia v Republic
    Criminal Appeal No. 44 of 2013 Nakuru

    P3 form and PRC form properly admitted even when tendered by the investigating officer and not the maker

  • Samuel Warui Karimi v Republic
    (2016) eKLR

    Voir dire examination applies to children of tender years

  • Mohammed v Republic
    (2005) eKLR 138
  • Haro Guffil Jillo v Republic
    (2014) eKLR

    Definition of child of tender years as 14 years and below

  • Patrick Kathurima v Republic
    (2015) eKLR

    Definition of child of tender years as 14 years and below

  • Kiilu & Another v Republic
    (2005) 1 KLR 174

    Duty of first appellate court to re-analyse evidence and make its own findings

  • Olum & Another v A.G
    (2002) 2 EA 508

    Right of accused to access prosecution evidence in advance

  • George Ngodhe Juma & 2 Others v AG
    Miscellaneous Criminal Application No. 345 of 2001

    Right of accused to access prosecution evidence in advance

  • David Aketch Ochieng v Republic
    (2015) eKLR

    Attempted defilement is unsuccessful defilement; prosecution must prove attempted penetration

  • Daniel Ombasa Omuoyo v Republic
    (2016) eKLR

    Mere attempt to remove clothes does not amount to attempted defilement

On appeal from
Magistrates' Court (Makueni)
not stated
Jurisdiction invoked
First appeal to the High Court from a conviction and sentence by the trial Magistrate's court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Walter Muuo Mutuku v Republic", Case Analysis (2020). Criminal Appeal (Makueni High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/1652/eng@2020-11-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.