Murie Kiti Jumaa v Republic

started beating him. He shouted and hunters came making these people ran away. He said that these people took the Ksh 8,500 and a Sumsang galaxy phone valued at Ksh 8,000. The chief was called and he was taken to hospital where his leg was stitched and then Kizurini police station where he was detained for the offence of attempted rape, which he did not know about. In his judgment, the trial magistrate in finding the appellant guilty had this to say; “Hence the court finds that he was properly identified and held culpable for offence of attempted rape contrary to section 4 of the Sexual Offences Act No 3 of 2006.Section 4 of the Sexual Offences Act No 3 of 2006. Having said that I will not make any finding on the 2nd point for determination. The prosecution proved its case against the accused person beyond all reasonable doubt and he is convicted for the offence of attempted rape contrary to section 4 of the sexual offices Act”. In his appeal, the appellant cited six (6) grounds being; 1 THAT, the trial magistrate erred in law when he convicted and sentenced me to five years imprisonment on evidence that was never proved beyond any reasonable doubt; 2. THAT the complainant testified that she never recognized me during the night of the alleged offence. 3. THAT the short and black shoes that were recovered outside her house were never produced as exhibits during the trial 4. THAT the complaint (Pw1) and her husband (Pw3) contradicted themselves in their evidence. 5. THAT the evidence of Pw3 is just hearsay 6. THAT my arrest was based on the short and black shoes that were recovered outside the complainants house which were never brought to court as exhibits. At the hearing of the appeal, the appellant relied on his written submissions, both in English and Kiswahili languages, whereby he urged the court to have mercy on him. The appeal was vehemently opposed by M/s Ocholla, counsel for the state in her oral submissions to court where she urged the court to uphold the conviction and sentence against the appellant. I have re-evaluated the evidence that was adduced before the trial court so as to arrive at my own conclusion as is required by the first appellate court. In doing so, I have taken into consideration the grounds of the appeal and the rival submissions while bearing in mind that unlike the trial magistrate, I did not have the benefit of observing the witnesses. Whereas I find that there is no challenge to the evidence by the complainant ( Pw1) that there was an attempt to rape her on the night of 15 th June, 2013, the main issue that has arisen for determination is whether the prosecution adduced sufficient evidence to prove their case against the appellant beyond reasonable doubt. It was the complainant’s evidence that on the alleged night, she was woken up by the touch of her private parts by someone who wanted to pose as her husband. She however could tell that the man was not her husband from his voice and bad breath. She then screamed as the man lowered her pants to the knee and he ran away. It is worth noting that up to this point, the complainant never told the trial court that she had recognized her assailant. She even told the trial court that the lamp which had been on at the time she fell asleep had been put off. The complainant then goes on to state that she went to her neighbour, Fatuma’s place after her assailant ran and on their way back to her house, the man appeared and asked that she gives him his short and pair of open shoes that had remained behind when he ran off. This shirt, according to the complainant was left behind by her assailant when she clung to it, while the shoes were inside her house. From the evidence, of the complainant, she was able to identify the appellant as the person who had attempted to rape her when he returned and asked for his shirt and open shoes (Exhibit P1 and 2 respectively). The complainant testified before the trial court that she asked the appellant to come for the shirt and open shoes (Exhibit P1 and 2) the following morning but he did not return. She told the court that she was with her neighbour Fatuma when the appellant came and asked her to give him back his shirt and open shoes ( exhibit P1 and P2) This then made Fatuma a key witness whose evidence would have confirmed that indeed Pw1 went to her house on that night and that Fatuma saw the appellant when he went back came and asked for his shirt and open shoes. But she was never called to testify before the trial court. Pw3, husband to the complainant, like Pw2, the investigating officer, gave evidence what the complainant told them about the incident . Furthermore, while the evidence connecting the appellant to the incident or offence is the shirt and open shoes (exhibits P1 and P2), there is no evidence on record to confirm that indeed the said items belonged to him. None of the witnesses, and more so Pw1 and Pw3 who claimed in their evidence that they had known the appellant for some time before the incident, identified the shirt and open shoes as belonging to the appellant and no one else . There is no evidence that prior to this incident, the appellant had been spotted wearing the said shirt and open

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shoes. (Exhibit P1 and 2) Also Pw3 told court when he was cross examined by the appellant that he had given his name as Murie Kili. From the evidence before the trial court, Pw3 was told of the incident by his wife, the complainant. In her evidence, the complainant told court “He is a person I had been seeing but whose name I did not know”. There was also evidence that the appellant was arrested after committing another offence. What remains unanswered is who arrested him, for what offence and how he was subsequently connected to the offence against the complainant in this case. Furthermore, according to the complainant, the shirt she alleged she seized from the appellant was blue in colour. She did not give a description of the open shoes. When Pw2 produced the shirt and open shoes in court, the trial magistrate marked the as “Court – a green shirt ( mf 1-P1) a blue and black pair of open shoes ( Mf1,2)” Pw3 did not identify the said exhibits or describe their physical appearance to court. I find the prosecution’s evidence against the appellant riddled with gaps, unanswered questions, which create doubt, whose benefit should have been granted to the appellant. In the premises, I allow the appellant’s appeal, quash the conviction and set aside the sentence of imprisonment for five years that was imposed against the appellant. I hence direct that the appellant be set at liberty forthwith unless otherwise lawfully held. Judgment delivered, signed and dated this 7th day of December, 2017. Hon Lady Justice D. O. Chepkwony In the presence of ; M/s Ocholla, counsel for the state Appellant – Present Mr Beja Nduke – C/clerk

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