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MagistrateDismissedNot stated in the judgment (Criminal Case, Kwale)· [2022] KEMC 37 (KLR)

Director of Public Prosecutions v Guni (Sexual Offence E072 of 2021) [2022] KEMC 37 (KLR)

Magistrates' Court at Kwale
17 May 2022
KZKiongo Kagenyo Zacharia
6,448 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kwale court acquitted a man of attempted rape because serious, unexplained contradictions in witness and medical evidence left the judge with reasonable doubt.

What this practically means

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Executive summary

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The accused, Salim Ali Guni, was charged with attempted rape contrary to section 4 of the Sexual Offences Act and, in the alternative, committing an indecent act with an adult contrary to section 11A. The prosecution alleged that on 2nd November 2021 the accused lured the complainant, PW1, on her way to a dispensary, dragged her into thickets, undressed her and attempted to penetrate her vagina, but was prevented by her struggles and the passing of a bystander. Six witnesses testified, including the complainant, her parents, a clinical officer, PW5 Yunus Safari who had passed by the scene, and the investigating officer. The defence was that the accused had found the complainant having sex with Yunus and reported it, prompting a false accusation. The court found the prosecution evidence unable to meet the standard of proof beyond reasonable doubt. Key inconsistencies included PW5's evidence that he saw the two merely standing fully dressed, contradicting the alleged struggle; the impossibility of a two-hour unnoticed struggle; the complainant's failure to report; and grave inconsistencies in the P3 and PRC forms, which the clinical officer appeared to have executed before the matter was reported. The investigating officer's account also differed materially from the complainant's. Applying the standard in Miller v Minister of Pensions and the credibility test in Joseph Ndungu Kimanyi v Republic, the court found reasonable doubt, dismissed the case, and acquitted the accused under section 215 of the Criminal Procedure Code on both counts, ordering his release forthwith.

Key legal issues

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01

Ingredients of attempted rape under section 4 of the Sexual Offences Act

Holding

The court set out the requirements including a manifest intention to rape and a factus interveniens, but found the prosecution evidence unable to meet the standard of proof beyond reasonable doubt

Reasoning

The court applied the test in Abraham Otieno v Republic that the intention to rape must be manifest by word or conduct, and considered PW1's account of the struggle, undressing and attempted penetration. It nonetheless found grave unexplained inconsistencies between PW1's evidence and that of PW5 and PW6 which dislodged the allegation and raised reasonable doubt.

p. 8
02

Credibility of prosecution witnesses and medical evidence

Holding

The credibility of PW1 and PW4 was impugned; the P3 and PRC forms bore dates inconsistent with the flow of events, the medic having allegedly seen the patient before the matter was reported

Reasoning

The court found the P3 form was executed by PW4 on 22nd November 2021, seven days before it was allegedly issued on 29th November 2021, and the PRC form bore the same inconsistency. This contradicted the evidence of PW1 and the investigating officer and shook the credibility of the medical evidence relied upon by the prosecution.

p. 9

Legal principles established

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  • The prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt, which does not mean proof beyond a shadow of doubt
  • A witness upon whose evidence a conviction is proposed must not raise suspicion about his trustworthiness or be of doubtful integrity

Court orders

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  1. 1.The case against the accused person is dismissed and he is acquitted under Section 215 of the Criminal Procedure Code for the main count of attempted rape and the alternative count of committing an indecent act with an adult
  2. 2.The accused be set at liberty forthwith unless he is otherwise lawfully held

Authorities

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Legislation

  • Sexual Offences Act No. 3 of 2006section 4
  • Sexual Offences Act No. 3 of 2006section 11A
  • Evidence Actsection 107
  • Criminal Procedure Codesections 210, 211, 215
  • Constitution of KenyaArticle 50(2)(i)

Cases cited (4)

  • Joan Chebichii Sawe -v- Republic
    [2003] eKLR
  • Miller -v- Minister of Pensions
    [1947] 2 ALL ER 372
  • Abraham Otieno vs Republic
    [2011] eKLR Kisii H.C Criminal Appeal No 53 of 2009
  • Joseph Ndungu Kimanyi v Republic
    [1979] eKLR
Jurisdiction invoked
First-instance criminal trial under the Sexual Offences Act No. 3 of 2006 and the Criminal Procedure Code (sections 210, 211, 215)

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, "Director of Public Prosecutions v Guni (Sexual Offence E072 of 2021) [2022] KEMC 37 (KLR)", Case Analysis (2022). Not stated in the judgment (Criminal Case, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/37/eng@2022-05-17

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