Peter Mwashegha v Republic

7. They passed Baraka area and the Appellant told the complainant that he was going to pick other students. The complainant said the Appellant knocked her down, removed her skirt and lay on her and they went home in the tuk tuk. 8. The mother of the complainant (PW2) was waiting for her and she took the complainant to the police station at and later to the hospital. She said the complainant was bruised on the head and her clothes were dirty. 9. The Appellant sped off in the tuk tuk but he was arrested and taken to the police station. 10. PW4, the Medical Officer at Moi Hospital Voi examined the complainant and said her physical examination was normal except for bruises on the forehead. Her genitalia was normal and her hymen intact and vaginal discharge normal. 11. In his defence, the Appellant said he was driving the tuk tuk when he saw the complainant at Mwamunga Primary School junction in uniform. 12. He said he asked her where she was going and whether she had bus fare. She said she did not have fare and she was going to Birikani Cosovo area. 13. The Appellant said he opened the door of the tuk tuk and she entered. 14. They went to the junction at Mombasa Road and waited for other pupils the Appellant used to carry. 15. The Appellant noticed he had run out of time and he took the complainant to her home. On the way he saw a group of women. The complainant told her it was her mother and he stopped and the complainant came out. 16. The Appellant drove to Birikani where he was stopped and told to go back to Cosovo Estate. Luckily a police vehicle on patrol went by and he was arrested and taken to the police station. 17. The trial court found the Appellant guilty on the charge of attempted defilement and convicted him and sentenced him to 10 years imprisonment. 18. The Appellant has appealed against both conviction and sentence on the following grounds:i. The learned trial Magistrate erred in both law and fact when she misdirected herself. ii. The learned trial Magistrate erred in both law and facts when she shifted the burden of proof from prosecution to the Appellant. iii. The learned Magistrate erred in law when she considered the evidence adduced by prosecution full of massive contradiction. iv. The learned trial Magistrate erred in law in convicting the Appellant on poor investigations adduced by prosecution. v. That the learned trial court Magistrate erred in law fact by convicting the Appellant and sentencing him to 10 years imprisonment without considering that the sentence meted on the Appellant was harsh and excessive. vi. That the learned trial court Magistrate erred in law fact by convicting the Appellant and sentencing him to 10 years imprisonment without considering the period spent in remand custody prior to conviction and sentence as requires Section 333 (2) of the CPC. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19695/eng@2025-02-07 2

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vii. That the learned trial court Magistrate erred in law fact by convicting and sentencing the Appellant to 10 years imprisonment without considering the Appellant’s reasonable defense. 19. The parties filed written submissions as follows:- the appellant submitted that the charges against him are defective as it is at variance with the evidence that was produced. 20. He argued further that this matter was marred with contradiction in that PW2 testified that they started looking for the complainant at 7:15 pm yet at cross examination she indicated 7.45pm. He submitted further that PW3 testified that the matter was reported on 17th February 2021 but the same was contradicted by the investigating officer PW4 who testified that the matter was reported on 18th February 2021. 21. The appellant argued that sufficient evidence was not provided to prove the charges against him. The complainant did not suffer any bruises, lacerations on her vagina nor was there discharge such as semen. The appellant urged the court find merit in his appeal and to dismiss the charges against him. 22. The prosecution alternative submitted that the appellant cunningly took PW1 the complainant to a secluded place (bush) on the guise of picking other students and a teacher. The appellant removed the complainants skirt, he laid on her, bruised her head. This was corroborated by the injuries that were included in the P3 form. The prosecutor argued that there is no other conclusion that can be derived from the appellants actions. 23. The prosecution submitted that the appellant was positively identified by the complainant. The complainant’s birth certificate was produced confirming that she was 11 years old. The complainant further testified and reiterated in detail what had happened to her that fateful day. 24. This being a first appeal, the duty of the first appellate court is as follows:The Court of Appeal in Okeno vs Republic [1972] EA 32 held that: “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v R (1957) EA 570). 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 finding and conclusion; it must make its own findings and draw its own 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, see Peters vs Sunday Post [1958] EA 424.” 25. 26. The issues for determination in this appeal are as follows:i. Whether the prosecution proved the offence of attempted defilement to the required standard. ii. Whether the appeal should be allowed. On the issue as to whether the prosecution proved the offence of attempted defilement. The Sexual Offences Act provides for the offence of attempted defilement under section 9 as follows:“ 9. Attempted defilement https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19695/eng@2025-02-07 3

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27. 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. 3. The provisions of section 8(5), (6), (7) and (8) shall apply mutatis mutandis to this section." In the case of John Gatheru Wanyoike vs Republic [2019] eKLR, the court held that: “ 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.” 28. The Appellant was arrested as he attempted to escape after he took the complainant to her home and dropped her by the roadside. 29. There is evidence that in an attempt to defile the complainant, the Appellant pushed the complainant onto the ground and lay on her but he did not defile her. 30. The Trial Court was right in relying on the testimony of the complainant in the circumstances of this case. 31. In the case of Keteta v. R, (1972) EA 532, 534, the court held 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.” 32. There was evidence that the appellant removed his trousers and inner wear and he lay on the Complainant. She screamed and he covered her mouth and tried to strangle her. 33. These were overt acts which show an attempt to do the thing intended. 34. The essential ingredients of an attempt to commit an offence have been laid down in the following words by Mativo, J ( as he then was) in the case of Moses Kabue Karuoya vs. Republic [2016] eKLR; “ In every crime, there is first intention to commit it, secondly, preparation to commit it, thirdly to commit it. If the third, that is, attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete but the law punishes the act. An ‘attempt’ is made punishable because every attempt, although it fails of success, must create an alarm, which, of itself, is an injury, and the moral guilt of the offender is the same as if he had succeeded” 35. The Judge further said in the Moses Kabue Karuoya case ( supra ) that for there to be an attempt to commit an offence by a person, that person must:a. Intend to commit the offence; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19695/eng@2025-02-07 4

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b. Begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve; c. Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence, 36. I find that the appellant did not commit the whole offence but there is evidence that he had the intention and he attempted to execute his intention. 37. For the offence of or attempting to commit an offence to be proved, the prosecutor must prove each of the three elements above beyond reasonable doubt. 38. The testimony of the complainant was corroboratedby the injuries that were included in the P3 form. 39. The mother of the complainant said that the appellant brought complainant with his tuk tuk and dropped her at the road injured and full of dust. 40. There is evidence that the Appellant did not escape and therefore he was properly identified. 41. There is evidence that the complainant was a minor at the time of the offence having been born on 20th April, 2010. Her birth certificate was produced. 42. I find that the appeal herein lacks in merit. 43. The conviction is safe and the sentence lawful. 44. I dismiss the appeal and uphold both the conviction and sentence. DATED, SIGNED AND DELIVERED THIS 7TH DAY OF FEBRUARY 2025 VIRTUALLY AND IN OPEN COURT AT VOI. ASENATH ONGERI JUDGE In the presence of:Court Assistant: Maina Miss Kanyuira for the State The Appellant present in court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19695/eng@2025-02-07 5

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