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High CourtDismissedCriminal Appeal No. 29 of 2018

Ngondi Vere Mukalatyo v Republic

High Court of Kenya
17 January 2020
CKC. Kariuki
1,681 words in judgment
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The bottom line

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To prove attempted rape, the prosecution must show the accused's actions clearly demonstrated the intent to commit the full crime.

What this practically means

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Executive summary

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The appellant was convicted by the trial magistrate of attempted rape contrary to section 4 of the Sexual Offences Act and sentenced to 20 years' imprisonment. He appealed on two grounds: that the prosecution's case was not proved to the required standard, and that his defence was not considered. The complainant testified that on 20th June 2017 at about 1pm the appellant followed her home, jumped over her fence, dragged her to a chicken enclosure, strangled her, tore her underpants, rubbed his penis against her dress and ejaculated on her dress and legs before fleeing. Her mother-in-law (PW2) saw the stained dress shortly afterwards, and PW3 arrested the appellant the same evening after he allegedly offered Kshs.1,500 to settle the matter. Medical evidence confirmed strangulation marks, and the stained dress and torn pant were produced as exhibits. The appellant, in an unsworn statement, claimed he was framed over a boundary dispute and unpaid dues. The court, applying the test in Abraham Otieno v Republic, held that attempted rape requires a manifest intention to rape, which the appellant demonstrated by his conduct. It found the complainant's evidence consistent and corroborated by the exhibits, held the appellant was positively identified in daylight by a person who knew him, and rejected the framing defence as unsupported. The first appeal was dismissed, the conviction affirmed and the sentence confirmed.

Key legal issues

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01

Ingredients of attempted rape

Holding

The prosecution proved the appellant had the intent to rape and began manifesting it by tearing the pant, removing his penis and rubbing himself on the complainant until ejaculation.

Reasoning

The court adopted the test in Abraham Otieno v Republic that the intention to rape must be manifest by word or conduct. The complainant's consistent evidence of strangulation, tearing of the pant, rubbing of the penis and ejaculation, corroborated by the stained dress and torn pant exhibits and the P3 form, satisfied the test.

p. 4
02

Identification of the appellant

Holding

The appellant was positively identified in daytime by a complainant who knew him, and placed at the scene.

Reasoning

The incident occurred at about 1pm in daylight; the complainant knew the appellant from his casual work fencing a nearby secondary school; PW2 and PW3 also knew him, and PW3 arrested him the same day after the appellant offered money to settle the matter.

p. 3
03

Consideration of the defence

Holding

The defence of framing over a boundary dispute was rejected as unsupported by evidence.

Reasoning

The appellant's unsworn testimony that he was framed to avoid payment and over a boundary shift was contradicted by PW2, who denied he worked for her, and the court found no evidence supporting the framing claim.

p. 4

Legal principles established

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  • Attempted rape requires a manifest intention to rape, shown by conduct such as holding the victim, undressing her, removing her pants and unleashing the genital organ, stopped before penetration.

Court orders

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  1. 1.The appeal is dismissed, conviction is affirmed and sentence confirmed.
On appeal from
Magistrates' Court at Kitui
Jurisdiction invoked
First appellate jurisdiction over convictions and sentences of subordinate courts in criminal matters

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, "Ngondi Vere Mukalatyo v Republic", Case Analysis (2020). Criminal Appeal No. 29 of 2018. Source:

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