Boniface Amboso v Republic

b. The magistrate erred in law and fact by convicting the appellant on evidence which was both contradictory and inconsistent and consequently insufficient to prove beyond any reasonable doubt the charge of attempted defilement c. The magistrate erred by failing to objectively analyse the evidence before her during the trial and convicting the appellant on the basis of mere and unsubstantiated suspicion. d. The magistrate erred in law and fact by failing to take into account the mitigation as given by the appellant. e. The magistrate misdirected her self by issuing a harsh and clearly excessive sentence when she failed to take into consideration the fact that the appellant had been in custody throughout the trial period. 4. In the meantime, the appellant filed an application misc. Application no E 404 of 2023 for leave to file an appeal out of time which order was granted on 1st November 2023 leading to the filing of a second appeal being Criminal Appeal NO.E 298 of 2023 at Milimani which appeal was on 13th February 2025 transferred to this criminal registry and registered as Criminal Appeal No E 136 of 2025 which appeal was on 25th June 2025 withdrawn to facilitate the hearing of this appeal. 5. This appeal was admitted on 3rd October 2024 and directions on its disposal issued. On the 13th February 2025, the same was transferred to this criminal registry for determination. Directions were issued on the hearing of this appeal by way of written s submissions. Submissions 6. On behalf of the appellant it was submitted that the case was not proved beyond reasonable doubt as there was no evidence that to ascertain that the appellant’s penis touched pw1 s vagina as alleged and that the identification evidence was doubtful. It was submitted further that the pw1 was not truthful and the medical evidence did not support the charge and that it was upon the prosecution to prove that the appellant tried to penetrate the victim which did not materialize. It was contented that he was arrested at the scene but not subjected to medical examination thereby raising doubt in the prosecution case. 7. On identification it was contended that despite the fact that PW1,PW2 and PW5 were known to each other, none of them witnessed the appellants penis trying to penetrate the vagina of PW1 and that no sample was taken or noted at the scene and two vital witnesses were not called thereby raising doubt on the prosecution case. 8. It was submitted that the court did not take into account the provision of section 124 of the Evidence Act as to the truthfulness of the evidence of PW1and that the prosecution case was full of contradiction inconsistencies and discrepancies. 9. It was submitted that the court ignored his defence despite the fact that there was no credible evidence adduced and that he had raised the issue of demand of kshs 300,000 by the victim’s family and that the court did not consider the time spent in remand custody under the provisions of section 333(2) of CPC of a period of two years three months and eleven days, together with his mitigating circumstances. 10. Ms Kariuki for the respondent submitted orally and stated that PW1 knew the appellant as Baba Brayo who had sent her to the shop and when she came back, he put her in bed and attempted to defile her and that when pw5 heard the commotion he piped through the curtain and called the victims mother https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3943/eng@2026-03-19 2

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and they saw the victim holding her pant and the appellant half naked thereby meeting the definition of attempted defilement as per the holding in John Wanyoike v Republic. 11. It was submitted that identification was positive, the victim knew the appellant as baba brayo and the incident took place during daytime. The age of the victim was proved through the age assessment report and the mother’s evidence. The appellant was arrested by the village Elder at the scene and his defence was considered and rejected and was sentence as per the act. Proceedings 12. This being a first appeal, the court is required to re-evaluate the evidence tendered before the lower court and to come to its own conclusion thereon. 13. PW1 who was found to competent to testify under oath stated that the appellant whom she knew as Baba Brayo and who was her mums friend called her while she was playing with her two friends and sent her to the shop to buy unga and eggs which she took to his house in his absence and when he came back, he told her to go with him to the house to confirm, he then put for her cartoon on tv to which as he allegedly went out to tell her mother that she was in his house, when he came back, he locked the door tied her mouth with a white clothe and put her on bed and inserted his penis into her vagina and she felt pain and asked him to stop. 14. PW2 the victims mother stated that she was called by the caretaker of the house where the appellant lived since the victim was calling for help and when she responded she saw the appellant naked while the victim was holding her pants in her hand, the village elder came and the appellant agreed to open the door releasing the victim who was then taken to the hospital. In cross examination she stated that she had differed with the appellant once and she forgave him. 15. PW3 Andrew Momanyi rescued the appellant from the members of the public having been sent by the area chief. PW4 Dr. Farah Mohamed confirmed the age of the victim as 9 years and produced PRC and P3 forms confirming that the victim’s external genitalia had a reddened vulva, vagina moist with whitish discharge, hymen reddened indicating a possible scratch confirming partial penetration. 16. PW5 CM was passing through the appellants house when a child called her Mama Stevo from inside and asked her to help her open the door and when she piped through the window, she saw the part of her body, she then went and called pw2. It was her evidence that she had lived with the appellant for six years and there was no grudge between them. 17. PW6 CPI Stella Shitemi referred the victim to the hospital and the report showed no penetration. When put on his defence the appellant stated that he was on night shift between the 16th and 17th and when he came back home he found his wife away and when he put his hand to open the gate pw2 held the back of his clothe and stared that he was the one and that the officers from the chief’s camp came and arrested him on allegation of defilement. He stated that he knew pw1 through her mother who was a friend of his wife. It was his evidence that pw2 had complained sometimes back that he had assaulted her but she did not tell her husband leading to their separation and that pw5 had told him that the victims mother wanted kshs 300,000 to withdraw the case. Determination 18. In this appeal the following issues have been isolated by the court for determination taking into account that the appellant was not represented by an advocate, the one who had filed the appeal having filed an application dated 18th June 2025 to b e granted leave to cease from acting for the same which application was placed on Criminal Appeal No E 136 of 2025 having been filed in Milimani. Having noted that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3943/eng@2026-03-19 3

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said appeal was withdrawn by the appellant and the appellant having filed his submissions in person knowing very well that the appeal was filed by an Advocate, I taker it that the appellant withdrew instructions so as to act in person: a. Whether the case against the appellant was proved to the required standard b. Be whether the appellants defence was considered c. Whether the court considered his mitigation d. Whether the sentence was harsh and excessive so as to be interfered with by this court e. Whether the provision of section 333(2) of the CPC was considered. 19. On the proof of the prosecution case, the appellant was identified by recognition. He was known to both the complainant and her mother as Baba Brayo. He was also known to pw5 who had been his neighbour for the past six years a fact that he confirmed in his defence. He was placed together with the victim in his house by both pw2 and pw5 and corroborated by pw3. His identification was that of recognition and therefore free of error. The age of the victim was not in dispute and the act of attempted defilement was also proved by the medical report and her testimony that the appellant partially inserted his penis into her vagina and the pain therefrom made her stop the appellant from moving further. 20. On the appellant defence of an existence of a grudge between him and the complaints mother, PW2 confirmed that there existed a difference between them but she had forgiven him. From the evidence on record, it is PW5 who called the complaint’s mother to the scene and there was no evidence tendered of a conspiracy between her and the mother of the complainant to frame the appellant, who in his defence alleged that he had also quarrelled with the same. On the allegation of the demand of money from the appellant, I note that the same was allegedly after he had been arrested and even if that was true, it did not remove the appellants blameworthiness. Further the appellant did not put the issues raised in his defence herein to both PW2 and PW5 in cross examination. 21. On the appellants claim that some vital prosecution witnesses including the two friends of PW1 were not called to testify, having taken into account the evidence of PW5 and PW4 both who put the appellant and the victim together as corroborated by the evidence of PW2, I find and hold that these witnesses were not essential in proving the prosecution case. 22. I am therefore in agreement with the trial courts dismissal of the appellants defence and find that the case was proved beyond all reasonable doubt and the conviction was free from error. 23. On the sentence, it is trite law that the same is at the discretion of the trial court and can only be interfered with on appeal if the same was excessive and harsh or if the court did not take into account some relevant facts. As submitted by the prosecution, the sentence mated out to the appellant is as provided for in the Act and there being no special circumstances raised by the appellant to enable the court interfere with the same, I decline the invitation by the appellant to do so. 24. On the time spent, in custody, it is clear that the court did not take that into account as provided for under the provisions of section 333(2) of the CPC and as such the court fell into error. I would therefore allow this ground of appeal and order that the appellants sentence shall run from 21st April 2021 when the same first appeared in court. The appellant is entitled to remission thereon. 25. In the final analysis the appeal against conviction fails and is dismissed, while the appeal against sentence partially succeed to the extent that the same shall commence from the date when the appellant first appeared in court – 21st April 2021. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3943/eng@2026-03-19 4

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26. And its ordered DATED SIGNED AND DELIVERED AT MAKADARA THIS 19TH DAY MARCH 2026 J. WAKIAGA JUDGE In the presence of: Court assistant – Counsel for the State- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3943/eng@2026-03-19 5

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