Peter Kariba Muhoro v Republic

e. 3. That again the learned trial magistrate further failed to appreciate that the instant matter was riddled with material discrepancies capable of unsettling the verdict and further misdirected herself on very pertinent issues including reliance on the accused defense to fill in the glaring gaps in defense occasioning a serious dereliction of justice. He filed further grounds, indicated as amended grounds, as follows: a. That the learned trial magistrate erred in law and fact by convicting the appellant when the elements of the offense of attempted defilement were not proved beyond reasonable doubt. b. That the learned trial magistrate erred in law and fact by failing to note that the prosecution’s evidence was riddled with material contradictions and inconsistencies incapable of sustaining a safe conviction. c. That the learned trial magistrate erred in both fact and law by failing to find that PW1 was not a credible witness worth of belief. 4. The Appellant was arrested on 06.03.2023 and arraigned in court on 7.03.2023. He pleaded not guilty. Subsequently, he was granted bail on 21.03.2023. The matter started hearing on 4.07.2023, after several pretrial dates. 5. PW1, Duncan Kihama was the assistant Chief of Muyogo sub-location. He was called at 8 pm on 28.07.2023 by one Mwangi, who told him that he needed to see the caller at Tarus Hotel. He went there and found Mwangi, the chief, and one Mwaniki. Mwangi said that he found the appellant and the complainant at home. The complainant told Mwangi that the appellant wanted to rape her, who was present and confirmed. He referred the matter to the Endarasha Police Station. 6. He stated that one Maina had peeped through the house and saw the complainant with the appellant. He conceded that the appellant had earlier reported that the parents had refused to pay the school fees for the complaint, and he intervened by taking the complainant under his care. 7. He said he did not call the parents and did not know the relationship between the appellant and complainant. He said he did not have the complainant’s mother’s number. 8. PW2 was Justus Muhoro. He said he was going home to meet someone. Before he reached Kariba’s house, he heard some noise and the sound of a child. He went near the house, peeped, and saw the child say, "Acha kufanya hivyo." Kariba said hutaskia uchungu. He saw the child trying to escape through the window, and Kariba pulled her down. He called Kariba and said it was minor. The child told the witness that he wanted to defile her. He told Kariba’s two brothers and returned home. In the evening, he went to the centre and found the child with a guardian, and they went to the chief. He said that Kariba had threatened to strangle the child with a charger. 9. On cross-examination, he stated that he was at the house at about 3 pm. The gates had not been locked, but the house was locked. He said he heard the words "Acha kufanya hivyo wewe ni baba yangu." He said these were the words that made him come near the house. He said he heard the appellant say that he could strangle the minor with a charger. He said he did not know where the child stayed. However, he knew that the child’s mother and the appellant’s sister are relatives. He said he did not take any money, leading the witness and the appellant to the police station. He said he did not send anyone to Kiganjo to sign land sale documents. He said that the appellant was his father. On reexamination, he said that the appellant and his father were brothers, not that the appellant was his biological father. He said he testified about what he saw that day and had no grudge. He stated that the appellant lived in a timber house. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 2

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10. PW3 was Edith Maina, a clinical officer at Mweiga Health Centre with a degree in clinical medicine and surgery. She received a history of an uncle trying to force the complainant to have sex, but she examined and did not find anything abnormal. She did not conduct any further investigations. She produced P3, PRC, and treatment notes. She was not cross-examined. 11. PW4 was the minor who testified that the appellant is the husband of her aunt. The appellant told her that the aunt was at home and the complainant should go and greet her, as she works in Nakuru. She entered the house and started calling the aunt. The appellant locked the door. He ordered the complainant to lie on the bed. The appellant threatened and threw the complainant on the bed. She was resisting as the appellant said he was to use a condom so that she could not get pregnant. She started crying for help. Maina, who is a cousin, came and tried to open the door. PW2 shouted to the appellant to open the window. The complainant managed to escape. The appellant had a charger with which he threatened to kill the minor. She identified the condoms and the charger. 12. She said that the appellant’s house is made of timber and has three rooms but she was in the bedroom. It was her testimony that PW2 broke the house's window. When PW2 knocked, the appellant released the complainant. She escaped through the window. 13. PW2 called the complainant’s brothers, who came and then went home. The matter was reported to the chief, who was dealing with an emergency, but the minor was taken to the police station the following day. She was given some documents, which she took to the hospital, and they were filled. She identified P2, PRC, and treatment notes. She identified the appellant in the dock as the person who attempted to defile her. 14. On cross-examination, she said that the appellant did not touch breasts or buttocks. She could not remember how long the appellant lived near her home. She stated that Wairimu works in a club. 15. On reexamination, she stated that Wairimu is the guardian, as the mother is far. She stated that the uncle took her to the bedroom, wanted to have sex, and had condoms, but was saved by Maina (PW2). 16. PW5 PC(W) was Jane Njoroge of Endarasha Police Station. She recalled that on 2.03.2023 at 1450 hours, she was at the police station when the assistant chief, Mr. Kahama (PW1), arrived, accompanied by the complainant, and reported that the appellant wanted to defile her on 28.02.2023 at about noon. She recorded the statement of PW1 and PW4. She sent for PW2 to record a statement. On 3.3.2023, the minor was taken to the hospital. She was still a virgin. PW3 and PRC were filled. On 6.03.2023, she went to the locus in quo and arrested the appellant with the charger and SURE® condoms. She sought a birth certificate and noted that the minor was born on 15.07.2007, which certificate she produced as Exhibit 6. 17. She said that the person who rescued the minor was Maina, who is officially known as Justus Muhoro Mwangi. 18. On cross-examination, she stated that she went to the locus in quo after 8 days. The items the minor mentioned were still in the house. She said that the minor did not say that she was a frequent visitor to his home or that her breasts and buttocks were touched. 19. On re-examination, she stated that she believed the complainant, as she said that the appellant had wanted to use condoms to avoid pregnancy. She also found the evidence of one Justus Muhoro Mwangi, alias Maina, consistent with the minor's account. She denied that her statement indicated that the accused touched the complainant’s breasts and buttocks. 20. The Appellant was placed on his defence. Section 211 of the Criminal Procedure Code was complied with. He opted to give unsworn evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 3

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21. He stated that on 28.02.2023, he was resting in his house when, at about 2 pm, the complainant came seeking something to eat. She cooked and finished. The appellant testified that he asked the complainant why she was walking with a lady who sells alcohol. As he was asking, PW2 came and called the complainant. The complainant said that the appellant wanted to beat her. After 8 days, he was arrested because she wanted the complainant by force. 22. He said Maina is a son of the stepmother, and they have issues. They have been taking each other to the police station. He said that the club the complainant goes to belongs to the chief. He stated that between the chief and PW2, he thought there was a conspiracy. He said he was paying the complainant’s school fees. Submissions 23. The appellant submitted that the prosecution failed to show that both actus reus and mens rea merged. He submitted that the prosecution should be able to see that he was in a blink of execution and that suspicion alone is not sufficient. Reliance was placed on the case of Daniel Simiyu Wanyonyi v Republic [2019] KEHC 10487 (KLR). 24. He submitted that mere suspicion will not cut. Reliance was placed in the case of Daniel Ombasa Omwoyo v Republic [2016] KEHC 6027 (KLR), where the court stated as follows: “ 42. In the instant case, can the encounter between the appellant and the complainant be defined as attempted defilement? I do not think so. I say so because from the evidence adduced by the complainant stated that the appellant merely tried to remove her clothes, she screamed and members of the public came to her rescue. The mere action of attempting to remove clothes by the appellant in my humble view does not qualify to be attempted defilement and neither does the and neither does the same even qualify to be deemed as indecent assault as the complainant, who was the only eye witness in this case did not state in her testimony that the complainant touched her breasts or buttocks as he attempted to remove her clothes. The complainant was categorical that other than attempting to remove her clothes, the appellant did not do anything else to her. She did not say how far the attempt to remove the clothes went." 25. He stated that there was no attempt at penile penetration. There were no lacerations or other injuries around the genital area or lacerations elsewhere. There were no spermatozoa. He criticized the lower court’s finding in lines 16-23 on page 8 of the judgment. The appellant submitted that the court misdirected itself that the overt act was the presence of the condoms and the intention to use them. 26. He stated that there were inconsistencies. He pointed out that PW2 stated that the girl refused and started screaming, and the appellant tried to undress her, but did not manage. He pointed out that PW4 did not state that he tried to undress her. Reliance was placed on the case of Mohammed Swale Kaeze v Republic [2005] KEHC 3288 (KLR), where LESIIT and M.S.A. MAKHANDIA, JJ, as they then were, stated as follows: We do not agree with the learned counsel. The inconsistency in the Complainant’s evidence goes to the very substance of the case. It goes to the core of the evidence of identification. The credibility of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 4

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a key witness is so important that the Court of Appeal[Madan, Miller & Potter JJ A] in the case of Joseph Ndungu Kimanyi v Republic [1979] KECA 5 (KLR), held; “ “The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity and therefore an unreliable witness which makes it unsafe to accept his evidence" (references added). 27. He submitted that the reporting was done on 2.03.2023, and the arrest was done on 6.03.2023. He therefore stated that the arrest was an afterthought. He stated that these contradictions, taken together, render the evidence of PW4 inconsistent. Reliance was placed on the case of John Mutua Munyoki v Republic [2017] KECA 376 (KLR), where the court of appeal [Makhandia, Ouko & Murgor, JJ.A] held as follows: “ Clearly the High Court failed to evaluate the veracity of all these contradictions and discrepancies. To our mind these contradictions and inconsistencies are not minor as submitted by the respondent. They were critical and go to the root of the prosecution case and whether the complainant was a credible and truthful witness. If the complainant could lie as to what led her to report to school late, what else did she lie about? As we observed in the case of Paul Kanja Gitari v Republic [2016] KECA 741 (KLR) [Nambuye, Koome & Kiage, JJA]: “ We also note the contradiction between PW2’s claim that the appellant habitually had sex with J.M.K and J.M.K’s own evidence on oath that it was the first incident and that the appellant “had never joked with her before”. There is also the contradiction that contrary to what PW2 herself said, the investigating officer PC Nixon Tallam (PW4) provided a different picture that the report he received was that pw2 went to the appellant’s home during the incident and “found the complainant on accused’s bed without pants”. That variance is not minor one. The first appellate court seems not to have dealt with those contradiction and inconsistencies in the prosecution evidence with the effect that we find merit with the appellant’s complaint that his appeal did not benefit from the thorough, exhaustive and independent re-evaluation that he was entitled to. They should have been interrogated and resolved in the appellant’s favour”. 28. The appellant emphasized that the question of contradictions is Kenyan, and they should be construed in his favour. Reliance was placed on the case of Philip Nzaka Watu v Republic [2016] eKLR, where the court of appeal [Makhandia, Ouko & M’Inoti JJ.A.] posited as follows: “ He first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 5

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However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. In DICKSON ELIA NSAMBA SHAPWATA & ANOTHER V. THE REPUBLIC, CR. APP. NO. 92 OF 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt: “ In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter. 29. The Appellant submitted that there was no direct, cogent, convincing, and compelling evidence to warrant the trial court to convict him. The reliance on the duty of the court was placed on the case of “As Bater v Bater {1950} 2 ALL ER 458 at 459, where Denning L. J, (as he then was) addressed the question of the standard of proof: “ It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, on proportion as the crime is enormous, so ought the proof to be clear in criminal cases. The burden rests upon the prosecution to prove that the accused is guilty beyond reasonable doubt. 30. He submitted that the offence of defilement should be denounced in the strongest terms. He submitted that it is better for the court to acquit a guilty person than jail an innocent one. He concluded that it is morally right that he be acquitted. 31. The court notes that the quality of submissions filed by the appellant was top-notch and addressed all issues in the appeal except one, the sentence. 32. The state indicated that it had filed submissions. However, in reality, they filed on 19.02.2026, setting out the ingredients of the offence and the meaning of 'attempt' within the meaning of section 388 of the Penal Code, on the ingredients of the offence of attempted defilement. They relied on the case of Moses Kabue Karuoya v Republic [2016] KEHC 2729 (KLR), where John M. Mativo J, as he then was, stated as follows: That is, they merely attempted to commit an offence. The fact remains that they intended to commit an act which they know is unlawful and prohibited, but the completed offence was never accomplished. The offence remains inchoate because the accused could not accomplish his desires, or that the end result of his acts or omission is not what he envisaged. He has all the same, attempted to commit an offence. It is a criminal attempt and therefore an offence. Will an accused person be allowed to go scotfree because he could not finish his plans? No. He would be made to face some form of punishment even though he never committed the offence. In my view, any legal system would be defective if criminal liability only arose when substantive offences have actually been committed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 6

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33. They submitted that the minor was born on 15.07.2007, as per her notification of birth, hence the age was proved. On identification, it was stated that PW2 found the minor and the appellant locked inside of a house. 34. The steps taken: he locked the minor in the house, the victim was lured to the house, the appellant threw the minor on the bed, and told her he wanted to have sex. He also had a bad temper, which he threatened to strangle the minor if she did not yield. PW2 heard the minor saying "Acha kufanya hivyo wewe ni baba yangu." The appellant stated that hautasikia uchungu. The minor was trying to escape when the appellant held her back. 35. The state submitted that the inconsistencies were very minor and do not affect the outcome. Reliance was placed on the case of Richard Munene v Republic [2018] KECA 186 (KLR), where the court of appeal [Ouko, (P), Sichale & Kantai, JJ.A] held as follows: It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it. 36. They concluded that the case was proved beyond reasonable doubt. Analysis 37. There are only two issues with 4 sub-issues for determination in this matter. They are: a. b. 38. Whether The state proved its case beyond reasonable doubt a. Contradictions and inconsistencies b. Whether the charge sheet is defective. c. Proof of elements of the offence d. credibility of PW1 Mandatory minimum sentence. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. This was set out by the former Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 as follows:“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 7

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apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 39. Therefore, the principle governing a first appeal is well settled. As stated in Okeno v Republic, an appellant on a first appeal is entitled to have the entire evidence re-evaluated and re-examined afresh, and the appellate court must draw its own independent conclusions. In doing so, however, the appellate court must bear in mind that it neither saw nor heard the witnesses and should therefore give due allowance for that fact. In the case of Okeno v Republic [1972] EA 32 at 36, the East Africa Court of Appeal stated as follows on the duty of the court on a first appeal: “ 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 v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 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 findings and conclusions; 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 v. Sunday Post, [1958] E. A. 424.” 40. 41. The section under which the appellant was charged is Section 9 of the Sexual Offences Act, which provides as follows: 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. Acts which cause penetration or indecent acts committed within the view of a family member, child or person with mental disabilities. (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. To be able to problematize, conceptualize, and contextualize the charge, it is important to know what constitutes defilement and, subsequently, to know what constitutes an attempt to defile or attempted defilement. Defilement is set out in section 8(1) of the Sexual Offences Act as follows: A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 42. Therefore, the key ingredients are the penetration of sexual organs by sexual organs by the perpetrator and the complainant being a child. If there is no child or the appellant is not the perpetrator, then defilement will not occur. On the other hand, if the same ingredients are missing, the attempt will also fail. Therefore, the only ingredient that is common to both offences is penetration. Defilement requires penetration, while an attempt requires that steps be taken towards defilement. 43. In attempted defilement, medical evidence is not of much use as the action is inchoate. Partial penetration falls within the realm of penetration and thus defilement. The attempt must be contrasted with the offence of preparation to commit. In the latter, there is no scene of crime. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 8

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44. 45. Section 388 of the Penal Code defines “attempt” as:“ 388 (1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, 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 fulfilment 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.” Therefore, mens rea constitutes the intention, while actus reus constitutes an overt act, towards the execution of the intention. What this means is that if the intention is in the mind and even condoms are bought, the offence does not occur. On the other hand, if any step is taken towards fulfillment of the intention, then the offence is complete. That means, the court does not look at the act done on the part of the appellant, but at what the accused does to the victim. Whether or not an accused removes his trousers, it is in the case of Daniel Simiyu Wanyonyi v Republic [supra] where Riechi J posited as follows: This Court when dealing with an appeal from a conviction of attempted defilement in A M v Republic [2018] eKLR, 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 46. It is common evidence that on the material day and time, the appellant and the minor complainant were in the house. It is also commonly known that PW2 found them in the house. Thirdly, it is common evidence that PW2 called for someone in the house and that the minor complained to PW2. What is contested is who PW2 called, and whether the minor complained of attempts to be defiled or having been beaten. On the same vein, the appellant challenges PW1's credibility. 47. PW1 was Duncan Kihama, the Assistant Chief of Muyogo Sub-location. His involvement in the matter was limited to receiving the initial report and subsequently notifying the police. His evidence was therefore formal in nature. Notably, his credibility was not challenged during cross-examination. This ground is therefore dismissed. 48. There was an allegation in the original grounds of appeal that the charge sheet was defective, contrary to section 214 of the Criminal Procedure Code. The said section provides as follows: 1. Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 9

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Provided that— 49. i. where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge; ii. where a charge is altered under this subsection, the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination. 2. Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. 3. Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary. The charge sheet was not amended, and no variance between the charge and the evidence tendered at trial has been demonstrated. Indeed, none has been shown to exist. In the absence of such prejudice, the charge cannot be impugned merely on account of alleged defects that have not been substantiated. In the case of Leonard Kiboi Naibei V Republic [2011] KEHC 2030 (KLR), the court, D. A. Onyancha and F. N. Muchemi, posited as follows: The name “Rael” on the charge sheet could have been a clerical error by the police officer who framed the charge. This is a very minor discrepancy and does not make the charge sheet defective. The charge sheet contains all the ingredients of the offence and all other material particulars. It is therefore not defective. 50. Crucially, there is no indication that the accused was misled or prejudiced in any manner by the framing. I have read the charge sheet and I cannot see any manner of material. This ground appeared to, and rightly so, have been abandoned. In the absence of any material variance, the ground is dismissed. 51. The court now turns to the proof of elements of the offence. IT is important to note that seduction of a child, however abhorrent it is, not amount to attempted defilement. However, it is part of the formation of the intention. However, the intention does not crystallize until an overt act is done. It is irrelevant that the overt act was thwarted by intervening facts or acts of the minor. For example, an attempt is made on the minor, but if she is experienced in martial arts, she thwarts the offence and breaks the aggressor’s legs. It does not matter since the attempt was complete. 52. In this matter, the appellant planned and executed meticulously, and misled the minor into believing that the aunt was in the house. Having come into the house, he locked the door. Is this true or the defendant’s version? The appellant admitted that the minor was in the house, the minor accused him there and then, and that PW2 called out. The appellant's version of the evidence is not believable. He did not explain why the house was locked. Secondly, PW2 called out. The appellant said that he called out the minor, while both witnesses said he called out the appellant. 53. Whichever version is correct, the fact is that there was a situation requiring PW2 to call out, otherwise he would have just knocked on the door and entered his uncle’s house. The evidence that PW2 broke https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 10

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the window was not contested. Further, it was not contested that the appellant was in the house when PW2 called. 54. Whichever version is correct, the evidence on record is that there existed a situation that compelled PW2 to call out, rather than simply knock and enter his uncle’s house in the ordinary course. The evidence that PW2 broke the window was not challenged in cross-examination. Likewise, the appellant was inside the house at the time PW2 called out, and PW2’s actions resulted in the complainant escaping. 55. The evidence of PW4, PW1, PW2, and PW5 corroborated the fact that the appellant tried to forcefully defile the minor. This was not an act of seduction. By locking the minor in the house and putting her in bed, the overt act was complete. The minor was lured from wherever she was to the locus in quo. The words that PW2 heard were consistent with an attempt to defile. 56. The defence of conspiracy was bogus. The attempt to say, “I think there was a conspiracy," is not enough. There was no basis for malice for all the witnesses. The appellant attempted to shift the offense to sexual assault by referring to buttocks and breasts. However, the appellant was found with the condoms that he had shown the minor. If the appellant is to be believed that they were eating lunch, what was the use of condoms in serving lunch? Like the court below, I find that PW2's evidence is consistent. He was not shaken at all. Like the court below, I find that the appellant was recognized by his own nephew, trying to defile the niece. In the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [Madan, Law & Potter JJ A)] posited as follows: The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 57. I therefore find and hold that the appellant was properly recognized. The next question is whether there was attempted defilement. The defilement which was being attempted was threatened by three things. First, the minor resisted and shouted. She also shouted, which coincidentally found PW2 in the vicinity. The story of asking the appellant about the club woman they were walking with is hogwash. 58. It is thus relevant that the appellant was incompetent or slovenly in his preparation. However, the preparation was surpassed. 59. The appellant lured the minor from the centre to his house and locks. Then he threw the minor on the bed. He then proceeded to threaten her. I find that threats were used to force the minor into submission. Though the offence was inchoate, it was completed as an offence. 60. Were there inconsistencies in the case? There were none I could see. Human recollection can be different. The minor was resisting defilement and largely managed to recount to the parties and later to the court what happened. 61. Lastly, there was a question of being arrested late. There is no limitation on actions in criminal cases. A party can only be arrested when his presence and that of the officers coincide. I don’t find any premium of being arrested early or late. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 11

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62. Was the complainant a child? She was born on 15.07.2007. As of 28.02.2023, she was 15 years. The appellant was an uncle, and hence could not have mistaken the complainant’s age given the degree of consanguinity or affinity, pursuant to section 8(8) of the Sexual Offences Act, which provides that: The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 63. The minor’s age was thus proved. In the circumstances, the appeal on conviction lacks merit and is accordingly dismissed. 64. The sentence meted out was a minimum sentence. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment), the supreme court stated as follows: 57. 56. Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances. 66. We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed. Having meted out the minimum sentence, there is no error on the part of the court. The court also complied with section 333(2) of the Criminal Procedure Code, which requires that the period spent in custody be taken into consideration. Therefore there is no merit in the appeal. The same is accordingly dismissed. Determination 58. The consequence of the foregoing is that the court makes the following orders:a. The appeal is dismissed. The sentence of 10 years shall run from the date of arrest, excluding the period the appellant was on bond. b. The file is closed. DELIVERED, DATED, AND SIGNED AT NYERI ON THIS 26TH DAY OF FEBRUARY, 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 12

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Ruling delivered through Microsoft Teams Online Platform. KIZITO MAGARE JUDGE In the presence of:Appellant present Mr. Kulati for the Respondent Court Assistant – Michael M. D. KIZITO, J. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2621/eng@2026-02-26 13

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