Emmanuel Nasikwa Sikonchi Alias Manu v Republic

The Appeal: 4. The Appellant was aggrieved by the conviction and sentence, hence, this appeal. He raised four grounds impugning the decision of the trial Court. He decried that he was not properly identified as the perpetrator, that crucial witnesses were not called, that his defence was not properly considered and that the sentence was harsh. 5. In the premises, therefore, the Appellant prayed that the appeal be allowed by quashing the conviction, the sentence be set aside and that he be forthwith set free. 6. Parties disposed of the appeal by way of written submissions. According to the Appellant’s undated submissions, the Appellant expounded on the above grounds and referred to several decisions in support of the arguments. For these reasons, the Appellant prayed that the appeal be allowed. 7. The Respondent on its part relied on its written submissions dated 27th November, 2023. It submitted that all the ingredients of the offence that the Appellant had been convicted of were proved to the required standard of proof. 8. Learned Counsel for the State then submitted that the sentencing was proper. For these reasons, the prosecution urged this Court to dismiss the appeal, uphold the conviction and affirm the sentence. Analysis: 9. This being a first appeal, it’s the duty of this Court to re-consider and to re-evaluate the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okono vs. Republic [1972] EA 74). In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v. Republic [2004] KLR 81. 10. Having carefully perused the record, this Court is now called upon to determine whether the offences of attempted defilement and assault were committed, and if so, whether by the Appellant. 11. It is established by law and settled judicial precedents that the offence of attempted defilement carries three components. They are the age of the victim, whether there was an attempt to penetrate the victim and identification of the assailant. 12. Before dealing with the said aspects of the offences, this Court will tender a brief summary of the evidence at trial. 13. The prosecution’s case was as follows: The complainant, APN (testified as PW1) was a 17-year old Form 2 Student at St. [Particulars withheld] Girls High School. She lived with her parents and used to walk to and from school each school day. 14. On 18th June, 2022, PW1 set out from her home to School at around 6:30am. She walked alone. On reaching the nearby Soko Mjinga Trading Centre, PW1 met the Appellant who was in company of another person whom she did not recognize. PW1 knew the Appellant quite well who was a boda boda rider. The Appellant greeted PW1 and asked her where she was off to. PW1 answered rather rudely wondering why the Appellant could not see that she was off to School. 15. Shortly, PW1 was grabbed from behind. She was blindfolded and her legs tied. She was placed on a motor cycle and her face covered with a red jumper. The motor cycle set out and the ride took around 3 hours. The assailants threatened and even beat PW1. PW1 recognized the Appellant’s voice quite well. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 2

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16. After that long drive, the motor cycle stopped in a bush where there was a small path. The Appellant threatened PW1 that they would rape and kill her. The other person who was in company of the Appellant opposed the suggestion saying that they would eventually be found out. 17. PW1 was subsequently untied and led into the bush by the Appellant. The accomplice waited by the roadside with the motor cycle. The Appellant who had a knife further threatened PW1 with death if she raised alarm. He then put PW1 on the ground and undressed her. As he was busy undressing his trousers, PW1 escaped while naked. 18. PW1 raised alarm and was rescued by a woman who gave her a piece of wrapper (lesso) which she used to cover her body. PW1 ran to her home and reported the matter. Her mother collapsed on hearing what had happened to PW1. Both PW1 and her mother were rushed to hospital. 19. The matter was eventually reported to the police by PW1 and one SLM, a Cousin to PW1 and who testified as PW3. 20. Investigations were undertaken by No. 233792 PC Eunice Nafula Wafula (testified as PW5). PW1 was led to Kwanza Sub-County Hospital and later to the Kitale County Referral Hospital where she was examined by Dr. Sheilla Olunga (testified as PW2). That was on 20th June 2022, barely a day after the ordeal. 21. PW2 carefully examined PW1. She noted that she was in a fair general condition and had pain on the sides of her body. Her genitalia were normal and the hymen intact. No bruises were noted. All relevant laboratory tests were normal. PW1 was counselled and given a hepatitis injection. 22. PW2 filled in and produced a P3 Form and treatment notes as exhibits. 23. PW1’s age was settled by one Pharis Silale (testified as PW4) who conducted an age assessment. She opined that PW1 was 17 years old. The Report was produced as an exhibit. 24. PW5 visited the scene and recorded statements. She formed the opinion, and, charged the Appellant with the present offences. 25. After close of the prosecution’s case, the trial Court found that the Appellant had a case to answer and was placed on his defence. 26. His sworn testimony was that he was framed by the mother of PW1, one JP, whom she had worked for and that she was to paid Kshs. 7,000/=, but instead PW1’s mother declined and brought up the tramped-up charges. 27. On the basis of the above evidence, the Appellant was convicted as charged with attempted defilement and sentenced accordingly. 28. This Court will now consider whether the offences were proved. Attempted Defilement: Age of complainant: 29. The prosecution in a bid to prove the age of the complainant in this matter produced an Age Assessment Report. The age was settled at 17 years old. 30. There are many ways in which a person’s age can be proved. It may be by way documents including Certificate of Birth, Child Health Card, Age Assessment Report among others. Age may also be proved by way of non-documentary evidence for instance by parents, guardians, relatives among others. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 3

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31. In this case, the production of the Age Assessment Report was not challenged. 32. Accordingly, the complainant was a child within the meaning ascribed to the term under Section 2 of the Children’s Act.The assailant: 33. Was the Appellant positively identified? 34. The prosecution relied on the evidence of the complainant as the identifying witness. 35. By dint of the proviso to Section 124 of the Evidence Act, Cap. 80 of the Laws of Kenya, the sole evidence of PW1 is admissible without any corroboration as long as the Court is satisfied that the victim was truthful. 36. In R -vs- Turnbull & Others (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court stated thus: ... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. 37. In Wamunga vs Republic (1989) KLR 426 the Court of Appeal stated as under: …. It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely make it the basis of conviction. 38. In Anil Phukan vs. State of Assam (1993) AIR 1462 the Court held as follows: A conviction can be based on the testimony of a single-eye witness and there is no rule of law or evidence which says to the contrary provided the sole eye witness passed the test of reliability in basing conviction on his testimony alone. 39. In the present case, PW1 testified that she knew the Appellant quite well as a rider within their locality. Likewise, the Appellant affirmed that he was a neighbour to the family of PW1. Further, the incident took place during daytime and there was ample opportunity for PW1 to see who her attackers were. 40. The trial Court had an opportunity of assessing the demeanor of PW1 when she testified. No adverse findings or remarks were made in respect of the testimony or PW1’s conduct. The trial Court believed that PW1 was truthful. 41. There seems to be nothing which was put forth likely to make this Court depart from that finding. But what of the Appellant’s defence? The issue of the grudge did not arise during the prosecution’s case. It was only raised at the tail end of the proceedings. Be that as it may, even if the Appellant had an issue https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 4

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with PW1’s mother, the Appellant instead had nothing with PW3. One, therefore, wonders why PW3 would take up the matter and escort PW1 to the police to make a report if nothing had happened. 42. The issue of some exhibits is also of essence. PW1 identified the red jumper which was used to cover her face during the ordeal. There was credible evidence that the jumper belonged to the Appellant. Further, PW1’s Maasai bracelet was recovered from the Appellant’s wife by PW5 after PW1 recognized and identified it. There was no meaningful explanation or at all as to how the PW1’s bracelet found its way to the wife of the Appellant. 43. PW2 also testified that PW1 had pains around her body. That evidence corroborated the PW1’s position that she was assaulted allover by the two assailants. 44. Looking at the evidence in totality, this Court finds that the defence did not dislodge the prosecution’s case. This Court finds no reason to depart from the finding of the trial Court that it was the Appellant and his friend who had an encounter with PW1. It is, therefore, the finding of this Court that the Appellant was properly identified as the intruder.Was there an attempt to defile? 45. Section 388 of the Penal Code defines “attempt” as follows: 388 (1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. (3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. 46. The above section brings out the two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention. 47. In R vs. Whybrow (1951) 35 CR App. Rep, 141, Lord Goddard C.J., had the following to say on mens rea when the Court dealt with the offence of attempted murder: ..... But if the charge is one of attempted murder, the intent becomes the principal ingredients of the crime. 48. Eminent learned authors in criminal law, J. C. Smith and Brian Hogan in their book Criminal Law, Butterworths, 1998 (6th Edition) at page 288 while discussing the aspect of mens rea in an attempted murder had this to say: .... Nothing less than an intention to kill will do. 49. And in Cheruiyot v Republic (1976 - 1985) EA 47 Madan, JA, as he then was, while approving the holding in R v. Gwempazi s/o Mukhonzo (1943) 10 EACA 101, R v. Luseru Wandera (1948) EACA https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 5

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105 and Mustafa Daga s/o Andu vs. R (1950) EACA 140, stated as follows on mens rea in an attempted murder charge: In order to constitute an offence contrary to Section 220, it must be shown that the accused had a positive intention unlawfully to cause death.... The essence of the offence is the intention to murder as it is presented by the prosecution. 50. The Court of Appeal had yet another occasion to look at the aspect of the actus reus in attempted offences. In Abdi Ali Bare vs. Republic (2015) eKLR, Learned Honourable Justices Githinji, Mwilu and M'Inoti, had the following to say as they considered the offence of attempted murder: ..... The more challenging question in a charge of attempted murder is the actus reus of the offence. Although a casual reading of Section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence. In the work quoted above by Smith & Hogan, the authors give the following scenario at page 291 to illustrate the distinction: D, intending to commit murder buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoiters a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. D takes up his position. loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder.... In the present appeal, to prove attempted murder on the part of the appellant, he must be proved to have taken a step towards the commission of murder, which step is immediately and not remotely connected with commission of the murder. Whether there has been an attempt to commit an offence is a question of fact. The act alleged to constitute attempted murder, for example, must be sufficiently proximate to murder to be properly described as attempt to commit murder. In Cross & Joines' Introduction toCriminal Law,Butterworths, 8th Edition (1976), P. Asterley Jones and R. I. E. Card state as follows at page 354: ..An act is sufficiently proximate when the accused has done the last act which it is necessary for him to do in order to commit the specific offence attempted.... The learned authors add that the court must answer the question whether the acts by the accused person were immediately or merely remotely connected with the commission of the specific offence attempted on the basis of common sense. Ultimately therefore, the real question is whether the acts by the accused person amounted to mere preparation to commit murder or whether the accused had done more than mere preparatory acts. 51. From the foregoing, it is easily deducible that when a Court is faced with any charge of an attempted nature, care must be taken to ensure that the attempt, as opposed to mere acts of preparation, is proved. Regardless of how strong the evidence is, if it only relates to acts in preparation to commit a certain crime, that evidence cannot justify a conviction on an attempted charge. 52. For clarity purposes, evidence must be led which goes beyond the preparatory stages and right to the doorstep of possible commission of the offence. It ought to be demonstrated that the accused had committed the last act to the actual commission of the specific offence attempted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 6

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53. With the above exposition of the applicable legal principles in relation to commission of attempted offences, this Court will now apply the said principles to this case. 54. According to PW1, the Appellant took her to the bush, fell her to the ground and undressed her. As he was undressing himself, PW1 managed to escape while naked. 55. There is no doubt that for the offence of defilement to be committed, there has to be penetration. Section 2(1) of the Sexual Offences Act defines “penetration” to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 56. This position was fortified in Mark Oiruri Mose vs R (2013) eKLR when the Court of Appeal stated thus: …. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ…. (emphasis added). 57. Later, the Court of Appeal, then differently constituted, in Erick Onyango Ondeng v. Republic (2014) eKLR held as such on the aspect of penetration: In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured. 58. From the definition of penetration and the guidance by the Court of Appeal, it is the position that penetration may only be ‘slightest and to the surface’ to suffice in law. It, therefore, means that there may be instances where the slight penetration, depending on other factors including passage of time, may not be possible to be ascertained by way of medical evidence. Therefore, the failure to prove penetration by medical evidence does not ipsa facto mean that there was no penetration. It all depends on the peculiar circumstances of a case and the extent to which the trial Court believes the victim. However, in such instances, the Court must exercise extreme caution as to weed out miscarriage of justice including instances where a victim is framed up for ulterior motives. 59. This Court has, with care and caution, reviewed the evidence on record. To this Court, there was no penetration of PW1’s vagina. 60. Going by the definition of penetration, for the offence of attempted defilement to stand, there must be evidence to show that the Appellant had committed the last act to committing penetration. Since the Appellant had taken PW1 into the bush, pinned her down, undressed her and was also removing his trousers before PW1 fled, then the cumulative effect of those actions confirmed the Appellant’s intentions. In other words, the Appellant had laid his intention to have sex with PW1 bare, but for the escape. There was, hence, an attempt to commit the offence of defilement. 61. With such a finding, the defence does not cast any doubt on the Appellant’s culpability. 62. There was, however, the issue of witnesses not called to testify. It was the Appellant’s contention that the mother to PW1 was not called to testify yet she was a crucial witness. 63. Section 143 of the Evidence Act provides that ‘No particular number of witnesses shall in the absence of any provision of law to the contrary be required for the proof of any fact.’ Therefore, unless a crucial https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 7

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witness is not called and no explanation is given, then the presumption that had the witness testified, the testimony may have been adverse to the prosecution, arises. (See Bukenya & Others versus Uganda (1972) E.A. 594, Kingi versus Republic (1972) E.A. 280 and Nguku versus Republic (1985) KLR 412). 64. In this case, PW1’s mother was not a crucial witness or at all. She did not witness anything in respect of the offence at hand. The contention, hence, fails. 65. There being nothing to stand on the way the Appellant was convicted, this Court finds and hold that the Appellant was properly so convicted. The appeal against conviction cannot stand and is hereby dismissed. Sentence: 66. The Appellant was sentenced to 20 years’ imprisonment. The Court did not call for a Pre-sentence Report. 67. It is imperative for parties to know that sentencing is a crucial part in the criminal process and the administration of justice and since sentencing Courts are called upon to exercise discretion, then parties are at liberty to even adduce evidence that may aid Courts reach most appropriate sentences (See the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR). 68. In exercising its discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Francis Karioko Muruatetu & another v Republic case (supra). 69. This Court is well abreast of the principles on sentencing and the 2016 Judiciary of Kenya Sentencing Policy Guidelines. As stated by the Supreme Court of Kenya in Francis Karioko Muruatetu & another case (supra), despite their importance, the guidelines do not replace judicial discretion. This is what the Apex Court stated: (72) 70. We wish to make it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process. The purpose of sentencing is expounded in page 15, paragraph 4.1 of the Sentencing Policy Guidelines as follows: Sentences are imposed to meet the following objectives: 1. Retribution: To punish the offender for his/her criminal conduct in a just manner. 2. Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences. 3. Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 8

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71. 4. Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs. 5. Community protection: To protect the community by incapacitating the offender. 6. Denunciation: To communicate the community’s condemnation of the criminal conduct. In sentencing, the Court considers various mitigating factors. Some include: (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; (h) any other factor that the Court considers relevant. 72. The Court in Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion. 73. In this matter, the Appellant did not establish the infringement of any of the above parameters by the sentencing Court. However, it is to be noted that the sentencing Court would have greatly benefitted from a Pre-sentence Report. Respectfully, this Court will, therefore, re-look into the aspect of the sentence. 74. To that end, a Probation Report will be availed to enable this Court ascertain whether the sentence ought to be interfered with. Disposition: 75. Having said as much, the appeal is now determined as follows: a. The appeal against the conviction is hereby dismissed. b. A Probation Report be availed to enable this Court determine whether or not to interfere with the sentence of 20 years’ imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 9

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c. This matter shall be fixed for further orders on a date to issue. It is so ordered. DELIVERED, DATED AND SIGNED AT KITALE THIS 5TH DAY OF APRIL, 2024. A. C. MRIMA JUDGE Judgment delivered virtually and in the presence of: Emmanuel Nasikwa Sikonchi alias Manu, the Appellant in person. Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent. Chemosop/Duke – Court Assistants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/3703/eng@2024-04-05 10

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