David Kala Nzioki v Republic

i. That the trial magistrate erred in law and in fact by finding that the prosecution had proved its case up to the standard required whereas key ingredient like age of victim was not proved. ii. That the trial magistrate erred in law and in fact by failing to give the appellant an opportunity for legal representation thus depriving him the right to fair hearing as it is outlined in article 50(2) of the Constitution. iii. That the trial magistrate erred in law and in fact by failing to analyze the evidence adduced to arrive at the circumstances under which the offence was committed in order to mete out a lenient sentence. 5. The Respondent opposes the instant appeal on the ground that the trial court properly evaluated the evidence and came to the right conclusion. 6. The appeal was canvassed through written submissions. The Appellant undated submissions were filed on 07/10/2024 whilst the Respondent’s submissions are dated 19/11/2024. Summary and Re-evaluation of Evidence. 7. This being a first appeal, it is the duty of this court to reconsider and re-evaluate the evidence adduced and the submissions made in the trial court so as to arrive at its own independent conclusion. In so doing, this court is required to always bear in mind that it neither saw nor heard the witnesses as they testified and must therefore give due allowance in that regard. In the case of Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal stated thus: “ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” Appellant’s submissions 8. The Appellant submitted that The Appellant submitted that, plainly, the charges of attempted defilement under Section 9 (1) (2) of the Sexual Offences Act No. 3 must 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. 9. Evidently, in consonance with the prosecution allegations, the Appellant did not attempt to remove the clothes of the complainant, so as he would be argued that he manifested the intention to execute the resulting outcome which is sex. It's only the action of removing clothes or undressing that can possess the intention to penetrate a complainant and the court having observed that the accused person went further to undress himself and exposure of the penis for furtherance of his intentions. This was not proved by the prosecution. 10. The finding of guilty against the Appellant based on the facts on record, depicted the deficiency of the trial court in analyzing and evaluating the present charges with the set guidelines pursuant to; the case of Benjamin Muthoka Katumo v Republic 2016 EKLR which held as follows; "wresting the complainant, holding her neck and eventually sitting her knees cannot amount to attempt to penetrate https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 2

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her. It is not alleged that the appellant intended to remove his genital organ in order to insert it into the complainant genitalia organ." 11. The Appellant argued that from above authority, the Hon. Court observed that it is essential for an accused person to show an indication that they are committed to having sexual intercourse through exposure of genital organ and move to insert it into the genital organ of the complainant. The intention to penetrate a minor is a key element. In the present case and without prejudice to his line of argument, the appellant did not form an impression that he wanted to have sex with the complainant. No actus reus nor mens rea for the offence were established. Even if the prosecution and the trial court found him blame worthy, this Hon. Court should concur with the principles set that the actions are miles apart from an intention to penetrate PW1. From the above laid guideline, it is crystal clear that there was no intention to penetrate and as a consequence, the appellant prays for a reprieve in this ground herein. The Appellant also submitted that it is trite law that the trial court must be satisfied of the accused person's guilty beyond reasonable doubt based on the prosecution evidence that is cogent credible and trustworthy. Evidence that is contradictory in material particulars raised doubt, hence lack probative value. 12. In the present case, PW1 and PW2 stated that the complainant was examined a day after the incident which is on 23/1/2021. In disagreement with that, the evidence of the examining doctor indicates that the complainant (PW1) was examined on 29th January 2021, but the P3 Form was filed on 29th March 2021, amazingly 2 months after the Appellant had taken his plea on 1 February 2021. 13. Secondly, the Investigating Officer (I.O) (PW4), stated on oath that the Appellant took of using a motorcycle whereas PW1 and PW2 averred that the mother to the complainant took the ignition keys from the accused therefore making it impossible for him to flee from the scene using a motorcycle. 14. Over and above, PW4 narrated to the court that the incident happened on a highway but PW1 and PW2 stated that it happened in a bush, astonishing two different locations alleging where the incident occurred. The Appellant cited the court of appeal case in Kimani Ndungu v Republic (1979) which pointed out on how to treat the evidence of witnesses whose credibility has been put into question when it held that; “ the witness upon whose evidence is proposed to rely should not create an impression in the mind of the court that he is not a straight forward person or raise suspicion about his trust worthiness or do something which indicates that he is a person of doubtful integrity and therefore unreliable witness which makes it unsafe to accept his evidence." 15. Further, the Appellant placed reliance in the case of Felix Luwambe Gonzi v Republic(2006) eKLR, where the appellate court held that it was difficult to know the true position of the matter as the witnesses therein had given contradictory evidence. 16. In similar vein, the case of John Mutua Munyoki v Republicand Philip Nzaka Watu v Republic(2016) the Lords of Appeal contended themselves thus as seen hereunder gives similar reasoning in the ratio decided that for the prosecution evidence to be relied upon, it must be cogent, credible and trustworthy, thus doubt should be resolved in favor of the appellant. 17. The Appellant prayed that the aforementioned guiding precedent be contemplated by this Hon. Court, to reach into conclusion that the inconsistencies and contradictions went to the root of the case, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 3

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hence unfair for the learned magistrate in using the prosecution evidence to convict the Appellant, had it analyzed the entire evidence it would have reached a different conclusion. 18. It was the Appellant’s submission tat he was are alive to the fact that it is discretional for the prosecution to determine on the number of witnesses to establish the factum probandum through evidential facts in a given case. In line with the above principle, the key stone legal proposition was contemplated in the case of Bukenya And Others v Uganda[1972] EA 549,where the court held that: “ the prosecution must make available all witnesses necessary to establish the truth even though their evidence may be inconsistent the court has a duty to call any person whose evidence appears essential to the just decision of the case where the evidence barely is adequate the court may infer that the evidence of uncalled witnesses would have tendered to be averse to the prosecution." 19. In the instant case, the evidence of "Mama Monica and Baba Kabui who allegedly went to the scene of crime after PW1 and PW2 had left, would have shed light on the allegations of struggle between the complainant and the appellant during the defilement attempt, in light of the testimony of PW4 that she did not find any other witness who could tell her what happened apart from PW1 and PW2. 20. Additionally, PW4 stated that there were people but they could not testify therefore creating an impression that the prosecution avoided the two witnesses knowingly of the negative veracity on its part in view of the shoddy, doubtful evidence with regard to defilement attempt. 21. In view of the prosecution evidence, it was vital for the trial court to have scrutinized the whole evidence in the presence of gaps created deliberately to find that the uncalled witnesses’ implication should be averse to the prosecution. Convincingly, an evaluation of evidence, the trial court failed to consider that the broken pieces of evidence produced by the prosecution lacked probative evidential components which in the present case it intentionally avoided upon realizing that it was averse in the circumstances surrounding the case. 22. The Appellant pleaded that this court finds merit in the arguments posited herein consonance with the principles derived from the authority contemplated in the case in Bukenya and Others v Uganda (1972) EA 549(Supra), and therefore hold this ground in favour of the appellant in the interest of justice. 23. That it is trite law that the prosecution bears the burden in criminal case as held in the celebrated case Woolmingtonv D.P.P (1935) AC 462 as highlighted bellow; “ through the web of the English criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt, subject to what I have already said as to the defence of insanity and also subject to any statutory exception.... No matter what charge or where the trials, the principle that the prosecution must prove the guilty of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." 24. Evidently, the following enumerated issues will point out the failure of the prosecution to discharge its burden in the present case; i. Inability to link the proclaimed actions of the appellant with the requirement of attempted defilement pursuant to Benjamin Muthoka Katumo v Republic2016 EKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 4

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ii. Major inconsistencies and contradictions in the prosecution case which touches on the credibility of witnesses to say the truth in the manner of Twehangane Alfred v Uganda (2001) UGCA and the Court of Appeal decision in Erick Onyango Odeng'u v Republic (2014)eKLR. iii. Failure avail crucial witness with an aim to shed light over evidential probative facts in line with the case of; Bukenya and Others v Uganda (1972) EA 549. iv. The deficiency created by lack of exhibit production where the ignition key and the motorbike were the centre of this case. v. The trial court erred in shifting the burden of proof to the appellant as seen in the judgement that he did not cross examine the important aspects as well as importing facts by stating that the incident happened on a corner part of farm which is at variance with the law. 25. Based on the evidence as argued, the prosecution did not discharge its burden of proof as required in law, hence at variance with Article 50 of the Constitution of Kenya and as a consequence making the conviction of the Appellant unsafe and a miscarriage of justice. He cited the case of Chanya And Another v Republic (2007). He prayed that this Hon. Court holds the ground in his favour. 26. Lastly, the Appellant submitted that in the present case, there was duplication of charges, an error which the trial court escalated by its failure to notice and appreciate. The appellant was charged with attempted defilement and also indicated an indecent Act as an alternative change. That, the two changes do not attract an alternative charge as contemplated in the matter of the dicta of Kasyoka v Republic(2003) eKLR as well as the case of Chelele Galoli v Republic(1955) EACA 622. 27. Impliedly, the trial court failed to appreciate that the rationale in instituting two charges was to attract the conviction of the appellant in whatever circumstances but inconsistently with our legal framework pursuant to Article 50 of the Constitution of Kenya 2010 which advocates for fairness in trial process. 28. He prayed that this Court finds that the 10 years sentence imposed on him to be excessive and oppressive in view of lack of sufficient evidence on record. Additionally, that this Court be persuaded to adopt the case of PIUS ARAP MAINA CRIMINAL APPEAL NO. 247 of 2011 AT Eldoret High Court, where court considered that the appellant's conviction was unsafe in the circumstances, and find that the present conviction is unsafe and therefore acquit him. Respondent’s submissions. 29. The Respondent submitted that PW1 the complainant stated that she was 14 years at the time of the giving her evidence. PW2 stated that PW1 was 14 years at the time of giving her evidence.PW2stated that at the time of the offence PW1 was 13 years old. She produced PW1 baptismal card. PW3 stated the complainant was 13 years of age. It is noted that no birth certificate nor age assessment was produced. 30. Failure to avail the birth certificate and/or age assessment was not fatal to the prosecution case. They cited the case of Jlibril Ekal Ekidor v Republic (2019) eKLR in which the Court of Appeal sitting in Eldoret held that the evidence of the minor complainant regarding age and the evidence of the registered clinical officer who examined her and the estimated age was proper evidence before the court upon which they could arrive at the conclusion that the age of the complainant was nine years. in this age the complainant stated she was 13 years of age. PW3 the clinical officer further stated the complainant was 13 years of age when he examined her. Further it is testified that the complainant was a school going child in class 6 thus she was still a minor. The Respondent submitted that the age of minority of the complainant victim was sufficiently proved. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 5

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31. They further submitted that PW1 stated that she was on her way from school when the Appellant ran and got hold of her. He got hold of her shoulder while he was on her behind. He pulled her towards the bush. The Appellant was holding her hand and he was touching her breasts as he pulled her. PW2 stated as she was out looking for her daughter PW1, she saw a motor cycle on the road. AS she approached the motor cycle, she heard someone crying. PW2 went towards the voice. On checking she saw the complainant PW1 struggling with David, the Appellant. She stated that PW1 was crying. She questioned David what he was doing to her child. the Appellant released PW1 and she ran towards her crying. PWI also told her that the Appellant was forcing her to sleep with him. She also told her that the Appellant touched her breasts.PW3 was the clinical officer. He states that on physical examination the complainant had no injuries. On vaginal examination he did not find anything, he interrogated her and she said she was not defiled. Her mother also confirmed the same. He concluded that there was an attempt to defile her and produced the P3 Form as PExt.1. 32. The Appellant said in his defence that in the year 2020 he used to work with his father's motor cycle. The child passed by the road and the mother asked if he had done something which he denied. That the Appellant’s defence was a mere denial and afterthought and could not hold water as against the prosecution case. The learned trial magistrate was right in rejecting the Appellant's defence. 33. That PWI in her testimony was able to identify the Appellant by name as David. She stated it was around 6:00p.m and dark but she was able to see who it was and it was David. PW2 was able to called the Appellant by name David as she testified. She found the Appellant with her daughter PW1 at the bush. PW2 states that she had known to the Appellant for 2 years. It was thus proved that the Appellant was the one who attacked the complainant victim. 34. On whether the intention to defile was proved, the Respondent submitted that PWI testified that the Appellant pulled her to the bush and was touching her breasts. PW2 testified that she found them at the bush and PW1 was crying and she informed her that the Appellant pulled her to the bush and was touching her breast. It was around 6:00p.m in the evening. One would question as to why the Appellant would pull PW1 to the bush and further touch her breasts. One would question the Appellant's intention in pulling PW1 a minor aged 13 years to the bush, away from the sight of everyone and touch her breasts. She was traumatised and was crying. The Appellant would only have one intention: to defile the minor girl. The Respondent cited the case of Issack Ali Issack v Republic [2020] KECA 699 (KLR) where the Court of Appeal sitting in Nairobi stated that: “ Were the ingredients of attempted defilement satisfied by the evidence before the trial court? Section 388 of the Penal Code defines “attempt" as follows...... To us, the above section brings out 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........The two courts below were satisfied that the ingredients of an attempted defilement were disclosed by the above evidence which proved beyond reasonable doubt that the appellant's intention to defile PWI were demonstrated, were it not for PWI's screams that attracted the timely intervention of PW2 that the appellant was arrested in the nick of time”. The Court of Appeal further stated that: We find this analysis by the Judge was sound and logical as the facts clearly point out to an intention on the appellant's part to commit defilement which is clearly demonstrated by his act of climbing on a bed where PW1 and her siblings were sleeping and attempted to remove her underwear while attempting to expose his own groin by pushing his kikoi. This was indicative of actus reus if not for the timely intervention by PW2 the act of defilement https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 6

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would have taken place. This Court explained intention to commit an offence in Francis Mutuku Nzangi v. Republic [2013] eKLR as follows:“...if a person conceives an idea or plan to commit an offence and sets out to effectuate the intention by taking definite steps or puts in motion a chain of events or state of things calculated to attain that objective as manifested by some open and discernible act or acts but fails to achieve his objective, he will be guilty only of an attempt to commit the offence .The attempt is proved whether or not that person did all the acts necessary to perfect the offence and quite irrespective of what intervening act or change of heart may have aborted the fulfillment. It also matters not that circumstances did in fact exist, unbeknown to the person, that would have rendered his success impossible." 35. The offence of defilement as defined under Section 9(1) of the Sexual Offences Act is committed when a person attempts to cause penetration with his genital organs, manifested by facts that point to an act of penetration. In an offence of attempted defilement, no penetration takes place, and this is what distinguishes it from the offence of defilement. We therefore find that the actus reus as well as the mens rea on the part of the appellant was established by the evidence and an offence of attempted defilement was proved in law. The appellant's conviction is therefore supported by evidence and we find no justification to interfere. 36. They did submit that the Appellant did have the actus reus and the mens rea to defile the complainant victim. The Appellant stopped the victim from her way from school. He went to her back and dragged her into the bush while touching her breasts. The Appellant committed a series of events that were it not for the intervention of PW2 mother coming to the bushes and questioning what was happening the Appellant would have well proceeded with his intentions to defile the victim minor. The intention to defile was therefore proved. 37. In light of the foregoing, it is our submission that the prosecution discharged its burden of proof and that the Appellant was properly convicted of the offence of defilement. The evidence by the prosecution witnesses was credible, consistent, reliable and well corroborated. All ingredients of the offence were established beyond reasonable doubt. We therefore urge this Honourable court to uphold the conviction. 38. On sentence, the Respondent submitted that the Appellant was sentenced to serve 10 years imprisonment on 23/5/23 in accordance with the provisions of Section 9 (2) of the Sexual offense act. They cited the case of Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 held that the sentences in the Sexual Offences Act are lawful and binding on all courts unless the Supreme Court is properly moved on the said issue. 39. The 10-year sentence imposed on the Appellant was the minimum and lawful sentence as per the law. The victim was found crying by her mother PW2 while she was with the Appellant. She was traumatised and he tried to take advantage of the minor victim. They submitted that the sentence was proper and within the law and the same should not be interfered with. Therefore, the appeal lacks merit and should therefore be dismissed in its entirety. Analysis and Determination 40. Having carefully and cautiously considered and analysed the trial court’s record, the grounds of appeal and the Parties’ rival submissions on the appeal the issue for determination is whether the Appellant has made a case for this court to interfere with the conviction and sentence imposed by the trial court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 7

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41. Again, this being a criminal case, the prosecution bore the burden of proving the case beyond any reasonable doubt. I will determine therefore determine whether the prosecution proved its case beyond reasonable doubt. 42. It must be appreciated that under Section 107(1) of the Evidence Act, the burden of proof is on the prosecution to establish every element in a criminal charge beyond reasonable doubt. This was well buttressed in the principle in the cases of Woolmington v DPP 1935 AC 462 and Miller v Minister of Pensions 2 ALL 372-273. Whether the prosecution proved its case beyond reasonable doubt. Proof of the Offence of Attempted Defilement 43. 44. Section 9 (1) and (2) of the Sexual Offences Act provides that’; 9.(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement. (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. In the case of Benson Musumbi v Republic [2019] eKLR the court considered what should be proved regarding ingredients of the offence of defilement. It stated thus:“ The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is as if it were a failed defilement, because there was no penetration.” 45. In John Gatheru Wanyoile v Republic [2019] eKLR the court reiterated as follows: “ It is clear that the elements of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the child was a minor, that there was an act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.” 46. Therefore, the court has to establish the following ingredients: i. The age of the complainant ii. The overt act committed iii. Positive identification of the assailant(s) 47. With regard to the complainant’s age, she was stated to be 13 years old. The same was proved vide In my view, with the evidence on record, the prosecution indeed proved beyond any reasonable doubt that the victim was a child aged 11 years old at the time of the alleged incident. 48. On the issue of the attempt to defile, the Sexual Offences Act does not define the term attempt but Section 388 of the Penal Code defines the term “attempt” as: i. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 8

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not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. ii. 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. iii. It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. 49. PW1, the complainant, upon voire dire examination, gave sworn evidence and stated that she attends school at [Particulars Withheld] Academy in Class 7 and that she was 14 years at the time of testifying. She knew the Appellant who is called David Kala. They lived in the same area and had done so for long. On 22/1/2021, she was from school and on her way home when she suddenly saw a motor cycle behind her. She checked and saw it was David. She continued to walk and he never talked to her. Suddenly she heard someone run and held her. It was the Appellant who held her. It was at 6pm and it was slightly dark but she could see the Appellant well. The Appellant got hold of her shoulder while he was on her behind. He put her school bag down and pulled her towards the bush. She struggled with him while crying. The Appellant was holding her hand and touching her breasts. Her mum emerged and asked him what he was doing to her. He said he was asking me about another boy but it was not true. They went where the motor cycle had stopped. Her mother took the ignition key and she carried her bag. They went home and reported to the police the next day. PW1 identified the Appellant as the dock. 50. PW2, the complainant’s mother testified that she found the Appellant holding the complainant who was crying. She testified that the complainant was resisting against the Appellant. They were on a corner part of the farm. She shouted at them and the Appellant let go of the complainant. The complainant picked her bag and ran to PW2 crying. She informed her that the Appellant had held her from behind, touched her breast as he attempted to drag her in the bush and defile her. 51. PW3, a Clinical officer based at Matuu Level 4 hospital testified that he examined the complainant who was 13 years old on 29/1/2021 after she was brought by her mother and police officer on allegations that someone wanted to defile her on 22/1/202 at around 6.30pm. On physical examination, she had no injuries. On vaginal examination, he didn’t find anything. She had not been defiled. He concluded there was an attempt to defile her, He filled the P3 Form which was produced as PExt.1. 52. PW4 was the Investigating officer, she testified that on 27/1/2021 at 18.35hrs, she was at the station when they received the Appellant from the police post accused of committing the offence of attempted defilement. She placed him in custody and the following day she met with the complainant and her mother. She escorted them to Matuu Level 4 Hospital for treatment and examination. A p3 Form was filled by Clinician Maingi. She recorded their statements. The incident occurred on 22/1/2021 but they reported on 23/1/2021. the Appellant attempted to defile the complainant by putting her hand on her shoulder and touching her breasts. PW4 testified that the Appellant took off on a motor bike. On 3/4/2021, she went to the scene but saw nothing since the matter had happened on a highway. She identified the Appellant in the dock. She didn’t get anything at the scene. She couldn’t get any other witness apart from the mother and the complainant. There were people but they couldn’t come to testify. 53. From the aforementioned Section 388, it follows that it must be proved by evidence that somebody did an act or acts which would show that he or she was intending to commit the offence, but failed to commit the complete offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 9

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54. As to whether there was an act to cause penetration that was not successful, in the case of Benson Musumbi v Republic [supra] it was stated that:“ In order to prove an attempt to commit an offence, the prosecution must prove the mens rea which is the intention and the actus reus which constitute the overt act which is geared to the execution of the intention. The actus reus must be more than mere preparation to commit the act as there is a difference between mere preparation to commit an offence and attempting to commit an offence.” 55. Furthermore, in Daniel Simiyu Wanyonyi v R [2019] eKLR it was held that: “ This Court when dealing with an appeal from a conviction of attempted defilement in Bungoma HC. Cri. Appeal No. 176 of 2016 stated; when a court of law is faced with any charge on an attempted offence, care has to be taken to ensure that the attempt, as opposed to mere acts of preparation, is proved since however strong the evidence may be if it only relates to actions in preparation to commit a certain crime, that cannot justify a conviction on an attempted charge. In the circumstance or clarity purposes, the 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. Likewise, the intention to commit the crime must also be proved. 56. In David Ochieng Aketch v Republic [2015] eKLR, Makau J observed as follows on attempted defilement: “ The Appellant was charged and convicted with an attempted defilement contrary to Section 9 (1) of Sexual Offences Act No. 3 of 2006. What is attempted defilement? It can safely be stated to be the unsuccessful defilement. For a successful prosecution of an offence of attempted defilement, the prosecution must adduce sufficient evidence to the required standard to prove an attempted penetration. This may in my view include bruises or lacerations from complainant’s vagina and/or bruises or lacerations of culprit’s genital organ and finding male discharge such as semen or spermatozoa outside the complainant’s vagina or innerwear without there being penetration. There was absence of penetration or evidence linking the culprit with the offence of attempted defilement.” 57. Accordingly, this court has to the answer the question of did the prosecution prove any act or acts that could constitute an attempt by the Appellant to defile the complainant in this case? The trial magistrate in his judgement stated thus:“ The fact that the accused held the complainant from behind and attempted to drag her in a bush while touching her breasts is a clear indication that he had an intention to defile her. 58. However, guided by the aforementioned Section 388 and the cited case laws, I disagree with the trial magistrate’s observations. Notably, at no point did the complainant state that the Appellant touched her private parts or her inner wear in an attempt to take them off. She also never testified that she saw the Appellants’ penis. The medical evidence produced by PW3, the Clinical Officer who examined the complainant stated that she had no injuries and did not find anything on vaginal examination. The complainant and her mother confirmed she was not defiled. PW3 concluded there was an attempt to defile her. I am a bit concerned on what basis the Clinical Officer made his conclusion. See Kiplagat & https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 10

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another v Republic (Criminal Appeal 38 of 2023) [2024] KEHC 8998 (KLR) (Crim) (26 July 2024) (Judgment) 59. The case of Issack Ali Issack v Republic [2020] KECA 699 (KLR) cited by the Respondent is distinguishable to this case for the reason that in that case the Court of Appeal judges found the analysis by the Judge to be sound and logical as the facts clearly pointed out to an intention on the appellant's part to commit defilement which was clearly demonstrated by his act of climbing on a bed where PW1 and her siblings were sleeping and attempted to remove her underwear while attempting to expose his own groin by pushing his kikoi. 60. From the evidence, it is clear that the Appellant might have been preparing to commit the act but had not attempted to do so. The Appellant was better charged with either forcible seizure or attempted abduction as a result of his unlawful actions rather than attempted defilement. Considering this evidence and the case law cited above, it is my finding that there was no attempted penetration by the Appellant in the instant case. 61. Having opined that there was no attempted penetration, I am inclined to agree with the Appellant that the prosecution failed to prove their case against him beyond reasonable doubt. Therefore, there is no need to interrogate whether the complainant identified the Appellant as the same would be an act in futility. 62. In the circumstances, I find and hold that the Appellant’s conviction was unsafe. I hereby quash the conviction of the Appellant and set aside the sentence of ten years imprisonment imposed on him. Therefore, unless otherwise lawfully held, the Appellant is hereby set at liberty forthwith. 63. It is so ordered. JUDGMENT WRITTEN, DATED, SIGNED & DELIVERED AT MACHAKOS THIS 17TH FEBRUARY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 17TH FEBRUARY 2025 In the presence of : In person............. for Appellant Ms Agatha............................. for Respondent Milly Grace................. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14351/eng@2025-02-17 11

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