REPUBLIC OF KENYA IN THE HIGH COURTOF KENYA AT MURANG'A CRIMINAL APPEAL 29 OF 2019 ONESMUS KARIUKI KAMAU................................APPELLANT VERSUS REPUBLIC..................................................................RESPONDENT (An appeal from the original conviction and sentence in the Chief Magistrate's Court at Murang’a Sexual Offence Case No. delivered at by Hon. M.Wachira, C.M. on the 18th day of June 2019). JUDGMENT 1. The Appellant was charged with the offence of attempted defilement contrary to Section 9(1) of the Sexual Offences Act. The particulars were that on the 26th day of December, 2017 at [Particulars Withheld] in Murang'a County intentionally attempted to cause his penis to penetrate the vagina of MMK., a girl aged 13 years old. In the alternative, he was charged with indecent act contrary to Section 11(1) of the Sexual Offences Act in that he intentionally and unlawfully touched the vagina and breasts of MMK, a child aged 13 years using his hands and penis. 2. The Appellant pleaded not guilty to both charges. At the conclusion of trial, he was found guilty of the main count and sentenced to serve twelve (12) years imprisonment. He was aggrieved by both the conviction and sentence against which he preferred the instant appeal. The grounds he raised in pursuit of this appeal were that: a. The case was not proved beyond reasonable doubt; and b. That the trial court failed to consider the period he had stayed in remand in computing his sentence. Submissions 3. The appeal was heard via Zoom Video conference. The Appellant relied on written submissions filed on 18 th August, 2020. The Respondent, represented by Miss Gichuru, tendered oral submissions. 4. It was the submission of the Appellant that there were contradictions in the evidence presented. He pointed out that the complainant stated that she was sent to the shop in the morning despite the fact that the incident took place in the evening between 5-6 pm. Further, that while the witnesses stated that the age of the complainant was 13 years, the Birth Certificate showed that the complainant was 15 years old. It was therefore his submission that the witnesses were not truthful. 5. Secondly, the Appellant submitted that there were inconsistencies in the prosecution case. He wondered how it was that the people who rescued the Appellant were not called as witnesses and how the shorts allegedly belonging to the Appellant and found on the complainant were not brought to court as exhibits. He also questioned why, when he was beaten no one came to his aid including the assistant commissioner. Lastly, he submitted that the reason why he was charged with the offence was because there was undue pressure from the family of the complainant to have him work for the family. 6. On her part, Miss Gichuru submitted that the evidence adduced by the prosecution was consistent. It was her submission that the Appellant was found with the complainant in his house. Further, that the complainant narrated the ordeal of the attempted defilement with fluency and had her testimony was corroborated. Lastly, that the Appellant opted to remain silent when he was given an opportunity to defend himself. Thus, he failed to shake the evidence of the prosecution. Summary of evidence. 7. I am alive to the duty placed on the first appellate court to analyze the evidence afresh and arrive at a conclusion independent of that of the trial court. Further, I am forewarned that while I am reevaluating it, I have to give the margin of appreciation because I did not have an
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opportunity to observe the witnesses' demeanor (See Okeno v Republic [1972] KLR). 8. The complainant, MMK, was called as PW1. She was a diagnosed with a mental condition that inhibited her recollection of events and was even in a special needs school. Due to her articulate nature, after voire dire examination, the trial court ruled that she gives an unsworn testimony. It was her testimony that she was taken by the Appellant when she was on her way to the shop. PW2 IWK, the complainant's mother, confirmed that she had sent her daughter to the shop at 5.00 pm. He took her to his house and asked her to lie on his bed. He removed his clothes and touched here genitalia with his hands. He also attempted to penetrate her with his penis but she stopped him. He proceeded to take her to another room where he laid a blanket on the floor and asked her to lie on it. The complainant was however rescued by her father, PW3, JKM, along with other men. The Appellant was taken and beaten by a mob before he was also rescued and taken to hospital for treatment. PW2 identified PW’s Birth Certificate that indicated that she was born on 25 th January, 2003. 9. PW3 testified that he had realized that the complainant was missing at about 7.00 pm. He therefore put together a search party and began looking for her. He received a tip-off that the last person seen with the complainant was the Appellant. They therefore made their way to the house of the Appellant. The Appellant was known to him since he worked for PW3's neighbor. While in the compound of Appellant's house, they called out for the complainant and she responded. When they realized that she was in the house of the Appellant, they tried to gain access. The calls for the Appellant to open the door went unanswered. They eventually broke in and rescued PW1. 10. PW3 testified that he found his daughter disoriented and disillusioned and dressed in a pair of shorts belonging to the Appellant. She could not recognize him and it took a while to convince her that she was in safe hands. He was able to convince her to take her out and thereafter to hospital. 11. The complainant was taken to Muriranja Hospital for treatment. PW7, Joel Onyancha, a Clinical Officer, produced a P3 Form as exhibit 6 and an outpatient treatment card, exhibit 4 on behalf of the Dr. Kairu. It was the finding of the doctor that there were no hymeneal tears, no spermatozoa nor interference with the complainant's genitalia. 12. After the close of the prosecution case, the court ruled that the Appellant had a case to answer and was accordingly put on his defence. He opted not to give any defence. Determination 13. I have carefully appraised myself with the evidence of the prosecution as well as the respective rival submissions. I have deduced that the only issues arising for determination are whether the case was proved beyond a reasonable doubt and whether the sentence imposed was proper. 14. The ordeal of the attempted defilement was elaborately testified to. PW1 testified with specificity as to what the Appellant did do in an attempt to defile her. Her testimony was corroborated in particular by her parents PW2 and PW3. It elicits the conclusion that there is consistency in the narrative. 15. As regards the contradictions submitted on by the Appellant, the complainant did state that she went to the shop and therefore met the Appellant in the morning. However, PW2, her mother and PW3 her father testified that she got lost in the evening. As well, that the charge sheet placed the age of the complainant at 13 years instead of 15 years as the birth certificate indicated. 16. As regards the time when the Appellant took the complainant, the issue is explained by the cross examination response of PW1 that she could not recall when the Appellant took her to his house. In the second contradiction regarding her age, it is clear that this was a minor error at the point that the charge sheet was being prepared. Clearly, the Birth Certificate did establish the age of PW1 against which the court would determine the sentence. The error of indicating the wrong age was therefore taken of by the production of the Birth Certificate. And in any case, what is paramount is whether the prosecution established the offence as charged. It is my view therefore, that the contradictions did not in any way shake the strong prosecution case. 17. On proof of the case, the Appellant was convicted for attempting to defilement. It is thus paramount to try and define what constitutes “attempted defilement.” In a persuasive decision in the case of KNL V REPUBLIC [2019]e KLR, the court observed thus; “Principles of the law of attempt 8. In accordance with the definition of attempt in section 388 of the Penal Code, the test for attempt requires a demonstration of an intention to commit the offence and an overt act towards the commission of the offence which is sufficiently proximate or immediately connected to the attempted offence. See Mwandikwa Mutisya v. R (1959) EA 18 and Mussa Said v. R (1962) EA 454. 9. In discussing the principles of law on attempt in the case of attempted larceny, Spry, J. (as he then was) in Mussa s/o Said v. R (1962) EA 454, 455 Letters C- D said: “The principles of law involved are very simple but it is their application that is difficult. If the Appellant intended to commit the offence of larceny and began to put his intention into effect and did some overt act which manifests that intention, he is guilty of attempted larceny. (Penal Code, s. 380). The burden on the prosecution is therefore first to prove the intention and secondly to prove an overt act sufficiently proximate to the intended offence. The intention will, in the majority of cases, only be capable of proof by inference and it follows in such cases that the act
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must be of such a character as to be incompatible with any other reasonable explanation. Secondly, even if the intention is established, the act itself must not be too remote from the alleged intended offence.” 10. In Keteta v. R, (1972) EA 532, 534, Madan Ag. CJ. (as he then was) put the matter succinctly as follows: “A mere intention to commit an offence which is in fact not committed cannot constitute an attempt to commit it. There must also be an overt act which is immediately and remotely connected with the offence intended to be committed and which manifests the intention to commit the offence. A remotely connected act will not do.” 18. The court must thus address whether the overt acts complained of constituted an attempt to defile. PW1 testified that the Appellant took her, undressed her and attempted to penetrate her multiple times with his hands and genitalia. When she protested, he asked her to stand up, put her on his pair of shorts and took her to another room. When she was rescued by PW3, it was his testimony that she was wearing a pair of shorts belonging to the Appellant. While it was not conclusive that the shorts belonged to the Appellant, it is clear that they did not belong to the complainant. I have no doubt in my mind that the Appellant attempted to defile PW1. 19. From the foregoing, I have no doubt in my mind that the Appellant attempted to defile the complainant. Further, that the complainant being rescued from the house of the Appellant also demonstrates that there is no other reasonable explanation than that he was the perpetrator. I find, from the totality of evidence, that the conviction was safe. 20. On sentence, the penalty for attempted defilement is provided under Section 9(2) of the sexual offences Act which reads: “(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”(emphasis added). 21. The Appellant complained that the period that he was in remand custody was not considered in computing the sentence. It is evident from the trial court record that the Appellant took plea on 28 th of December, 2017. He was given terms of bond to the tune of Kshs.200 000/- with a surety of a similar amount. However, he was unable to secure the same. He therefore remained in custody for the pendency of his trial. Hence, the court ought to have considered the period he was in custody prior to the sentencing. 22. As to the severity of the sentence, the Appellant raised mitigation by pleading for leniency. The state counsel stated that he was a first offender. The mitigation was however aggravated by the fact that he took advantage of a mentally challenged person who was also a minor. He took advantage of a special needs child with false sense of security that she will be unable to tell the story or that anyone would believe her. It is an offence that needs to be denounced with the strongest terms possible. It is also clear that the community needs to be protected from such criminality. For this reason, I find no reason to disturb the sentence imposed by the learned trial magistrate. However, the period that he was in custody from the date of taking plea from 28th day of December, 2017 to the date of conviction 18th of June, 2019 of one (1) year six (6) months and eighteen (18) days will constitute part of the sentence. It is so ordered. DATED AT MURANG’A THIS 3RD DAY OF DECEMBER 2020 G.W.NGENYE-MACHARIA JUDGE In the presence of: 1. Appellant in person. 2. Mr. Waweru for the Respondent.
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