Joseph Mugo Jane v Republic

6. That, the trial magistrate erred in law and fact when she rejected my sworn defence without cogent reason to do so. 7. That other further grounds to be adduced at the hearing of this appeal since I cannot remember all what transpired during the whole trial of this case, I kindly pray to be supplied with my court proceedings and a copy of judgement. Background 2. The accused Joseph Mugo Jane alias Joseph Mugo Benard was charged with two counts of Attempted Defilement Contrary to Section 9(1)(2) of the Sexual Offences Act No.3 of 2006 Laws of Kenya. 3. The particulars in Count 1 are that the on the 29th day of June 2021 at Block [Particulars Withheld] in Mwea East Sub-County within Kirinyaga County, the accused attempted to cause his penis to penetrate the vagina of CWK a child aged 14 years. 4. The particulars in Count 2 are that on the 29th June, 2021 at Block [Particulars Withheld] in Mwea East sub-county within Kirinyaga County, the accused attempted to cause his penis to penetrate the vagina of SKK a child aged 17 years. 5. On 15th October, 2024, the trial court found the appellant guilty and convicted him on two counts of attempted defilement, contrary to section 9(1) as read with section 2 of the Sexual Offences Act. Upon mitigation and consideration of the pre-sentence report, the trial court sentenced the appellant to ten (10) years of imprisonment on each count, with the sentences to run concurrently. Prosecutions Case 6. The prosecution called 7 witnesses. PW1-CWK, a student at [Particulars Withheld] Girls- form 2 and aged 15 years stated that she was born on 6th November 2006. She however identified her birth certificate with the date of birth being 6 December 2006 as PMFI-1. Her evidence was that on 29th June 2021, she was at her friend’s place by the name SK at Block Kamchaga. They were living there. Her mother used to sell oranges and accused, Jose, went and asked her for one orange and told her to follow him so that he could give her Kshs. 10/= for the orange. She went together with S and the accused opened the door then forced them inside his house which was a two roomed house. 7. The accused locked the door and told them he would harm them if they shouted. The house had 2 rooms, sitting room and bedroom. He offered them juice which they declined. He went to the bedroom then went and told her he wanted to sleep with her but she refused. He then went to remove S’s skirt and she pushed back. She intervened and accused threw her on the floor. He removed her skirt but she pushed him away. He went to Cecily but she fought him. His brother Brian came and the accused opened the door that is when they left. She reported to her mother who informed the incharge. The accused was arrested and the complainants were taken to Kimbimbi Hospital where they were examined. The doctor examined them. She was not injured. 8. On cross-examination, she stated at the time the accused's brother came, the accused was on top of S. She further said she identified the accused to the in charge. However, she said that the accused never did anything to her but attempted to defile her. 9. PW2- SKK testified that she was born on 23rd January, 2004 and identified her birth certificate as PMFI-2. She was 17 years old. She said that on 29th June 2021, she was at home together with PW1 at Block Kamucege when accused went and asked them if they sell oranges. Her friend PW1 said they had oranges. PW1 thereafter went for one orange valued at Kshs,10/= and the accused told them to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4477/eng@2026-02-20 2

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accompany him to his house so that he can give them the Kshs. 10/=. When he opened the house, he pulled PW2 in to the house and took her to the bedroom while PW1 was left in the sitting room. He locked the main door and told them he would harm them if they shouted. He offered them juice but they declined. He tried to remove her skirt but PW1 assisted her. He then went to PW1 and slept on her. She went and assisted PW1. The accused’s brother knocked the door that is when they escaped. He threatened to harm them if they told his mother what had happened. She reported to her mother and they went to the incharge. The accused was arrested as he attempted to escape by villagers. She recorded her statement at Kimbimbi Hospital. She confirmed she did not have any injuries and that the accused wanted to have sex with her but PW1 assisted her. 10. On cross-examination, she informed the court that PW1's mother was selling oranges and the accused asked PW11 to go get the Kshs. 10/= for the orange he had purchased. That it was the first time she met the accused. She described the house as a two-roomed house, which had a sitting room and a bedroom and said the accused placed her on the bed and wanted to remove her clothes. She denied framing him. They left the house at 4.00 pm. 11. PW3, AMK testified on 19th June, 2021, her daughter PW2 told her she was with PW1 when the accused asked PW1 if they had oranges and asked her to bring him an orange for Kshs. 10/=. He asked them to accompany him to get the money from his house that is when he pulled them inside and told them if they shouted, he would kill them. He asked them to take juice but they refused. He then pushed PW2 to the bedroom and pulled her clothes up. They started struggling and another boy came and called accused. He opened the door and they managed to escape. She reported to the area in charge Samuel Ndungu who told her PW1's mother had reported. They went to the accused’s house and the accused was arrested after the complainants identified him. They reported at Wang'uru police station and took the complainants to the hospital. She said the complainants said the accused wanted to sleep with them by force. 12. On cross-examination, she stated that she did not know the accused and that her daughter has a child but cannot know if the accused is the father to the child. That her daughter told her the accused attempted to defile her. 13. PW4 -JM testified that on 29th June 2021, he was at the shamba when his daughter PW1 went crying and informed him a boy went asking for oranges to buy and asked her together with PW2 to accompany him to his home to collect the money. The accused pushed them inside the house and told them if they scream he would kill them. He gave them juice and they refused. He pushed PW2 to the bed and while they were struggling, a boy named Joseph called the accused. He opened the door and they managed to escape. He asked them if they had been defiled but they said the accused only attempted to defile them. They reported to the area in charge then Nyumba Kumi. He then went to the accused's house in the company of PW3. The accused tried to escape but members of public assisted to arrest him. He was taken to Wang'uru police station and they were advised to take the children to the hospital. 14. On cross-examination, he stated that he only used to see the accused but did not know him. That PW1 said the accused did not defile her but attempted to defile her. 15. PW5- George Kariuki a clinical officer registration no. 20856 at Kimbimbi sub-county hospital. He produced the medical reports for the complainants. On examination of PW1, she had whitish discharge, hymen broken-old, no lacerations, HIV negative, pregnancy negative, syphilis negative, urinalysis negative, HVS no spermatozoa puss cells 1-2. The approximate age of the injury was 1 month. He produced as exhibits the outpatient card as PExh-3, the lab test as PExh-4, the P3 Form as PExh-5 and the PRC Form as PExh-6. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4477/eng@2026-02-20 3

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16. For PW2, she had mild discharge on the vagina, hymen broken-old, no lacerations, lab tests negative, pregnancy and syphilis tests were negative, urinalysis negative and no spermatozoa seen. He produced the outpatient card as PExh-7, lab test PExh-8, P3 Form as PExh-9 and the PRC Form as PExh-10. 17. On cross-examination he stated that no spermatozoa were seen on the children. No laceration. Hymen broken but old 18. PW6- Samuel Ndungu Kamau who knew the accused for one month testified that on 29th June 2021, PW1's mother reported that PW1 and PW2 accompanied accused to his house to get money to buy melon when he pulled them inside the house. They proceeded to the accused’s house where the accused tried to run away but was arrested by members of public. The accused’s house and the complainant’s house is in one plot. The accused denied he did anything to the children. He also denied asking the accused for Kshs 100,000/= and said he came to know him on the date of the incident. 19. PW7- PC Rose Sambu the investigating officer testified that on 30th June, 2021 the OCS asked her to investigate the matter. She found out that the complainants on 29th June, 2021 around 2.00pm were at their gate when the accused asked PW1 if they still sell fruits, as he wanted to buy oranges. He was given one orange and asked PW1 to accompany him to his house so that he could give her the money. PW1 accompanied PW2 and the accused pulled them inside his house and took PW2 to the bedroom while PW1 was at the sitting room. He tried to remove PW2’s skirt, she called PW1 who pulled the accused's leg and he fell. He tried to remove PW2’s clothes and in the process, there was a knock on the door by the accused's brother and the complainants managed to escape. PW1 informed her father who asked PW2’s mother about reporting the incident. They proceeded to report the incident. The medical reports did not reveal any defilement and she interrogated the accused who admitted to have purchased the fruit but denied attempting to defile the children. She said she had charged the accused with the offences herein based on the complainants’ statements. She produced the original birth certificates for the complainants as PExh-11 and 12. 20. On cross-examination, she denied asking the accused for any money. Defence Case 21. DW1 Joseph Mugo Jane the accused herein gave an unsworn statement and did not call witnesses. He said he resides in Nyamidi village. He stated that he was arrested by people who are Nyumba Kumi together with the area in charge for defiling girls. They took him to the station at 9.00pm. The investigation officer asked him for Kshs. 100,000/= which he refused to give that is when he was charged. He said that the house the children were found, belongs to his brother. That both PW1 and PW2 said nothing happened to them and the doctor also said they were not defiled. Appellant submissions 22. The appellant submits that the trial magistrate erred in law and facts in failing to appreciate the fact that he was asked to give out Kshs 100,000 by the police so that to release him. Clearly demonstrate an incredibly doubts integrity and whose evidence was and remains doubts, occasioning a serious prejudice. The appellant pleaded not guilty to the offence during plea and maintain the same up to date. He was merely accused of the offence which he never committed or did participated. He alleged that he was asked for Kshs 100,000 at the police a station after his arrest. He asked what was the money for, he was told if he cannot give out he will be charged. He was not aware of the attempted defilement. The appellant submits that the house alleged that the children were does not belong to him, but his brother. Pw1 said nothing was happened to her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4477/eng@2026-02-20 4

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23. Pw5 contradicted Pw2, Pw3 and other prosecution witnesses. He stated in his evidence on page no 23 and 24 of the court record that, he examined CW. Aged 14 years old. He stated that the complainant was defiled. On 29.6. 2021. She has whitish discharge, Hymen was broken-old, there was pus cell, mild discharge on the vagina. The approximate age of injuries was 1 month. 24. The appellant furrher submits that that P5 was trying to fix that there was defilement where was none. Pw1 and pw2 stated about attempt. On cross examination, Pw5 stated that; both patients indicated there were defiled. There was no evidence from the alleged complainant to corroborate with his allegations. This case was just framed up my lordship. The prosecution in this case had failed their duty professionally. 25. He relied on Barasa vs Republic Cr.Appeal NO 22 OF 2006 and urged that it is trite law that where evidence is contradicted or uncollaborated, the court should not rely upon it to convict. The appellant submits that the element of the offence was not proved beyond any reasonable doubts. There was no evidence of alleged attempted defilement. Pw1 and Pw2 told the court that nothing was done to them. They stated that the accused did not remove their cloths, nothing was inserted to them. No injuries, blood or any discharge. Status of the cloth was not torn. The findings on the P3 form does not collaborate with testimony of the victims. There was no intention to defile and nothing shows that there was an element proved of the charge of attempted defilement in this case. The appellant herein deserves acquittal. 26. On medical evidence, the doctor’s evidence in this case was found unbelievable and does not corroborate with minors’ evidence therefore to be rejected. There was no discharge or blood noted. No spermatozoa or any other organism there was no injuries, all other test were all negative. There was no evidence linking the appellant to the offence in question. Respondent submissions Whether the prosecution proved the charges beyond a reasonable doubt 27. To prove that the accused attempted to defile two minors, the prosecution relied on seven witnesses. The birth certificates and medical documents corroborated the testimonies of these seven witnesses. 28. Situma v Republic (Criminal Appeal E044 of 2021) [2025] KEHC 4537 (KLR) (Crim) (17 March 2025) (Judgment), was cited for the ingredients for the offence of attempted defilement that – “ The elements of attempted defilement are the same as those of defilement, except that penetration does not occur in attempted defilement. The case of John Gatheru Wanyoike v. Republic [2019] eKLR addressed the elements of an attempted defilement charge and made the following determination: “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.” 29. The appellant does not dispute the complainants’ ages. PW1 and PW2 are fifteen and seventeen years old, respectively. Exhibits 1 and 2 (birth certificates) confirms this. The appellant disputes that he was positively identified. However, a review of the proceedings disproves this claim. PW1 identified the appellant, stating they were neighbours separated by only one house. She even knew the appellant’s brother by name, Brian. She even identified the appellant by the name ‘Jose’ while pointing him out. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4477/eng@2026-02-20 5

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PW2 also identified the appellant, referring to him as ‘Joseph’ or ‘Jose’ throughout her testimony. She confirmed identifying him during his arrest. 30. On ‘the act to cause penetration’, the testimonies of PW1 and PW2 are consistent regarding the appellant’s actions and what transpired. The appellant asked for an orange. PW1 gave him. He asked them to come for Kshs. 10/= in his house. He locked them in the house. He offered the juice. They refused. He threw PW2 into the room. He threatened to harm them if they raised an alarm. He told PW1 he wanted to sleep with her. She refused. He removed PW2’s skirt. PW1 intervened, and he threw to the floor. He then turned to PW1 and removed her skirt. She pushed him away. He went back to PW2. But PW1 fought against. At one point in the midst of the back-and-forth struggle, according to PW2, the appellant slept on PW1. The appellant stopped when his brother, Brian, came. He opened the door. They left, went and reported. Whether the defence successfully disproved the prosecutions’ case 31. DW1’s defence seemed to have two main parts. First, he claimed the case was a frame-up and gave sworn evidence to support this. He stated that the village-incharge led members of the public to arrest him, took him to the police station, and that PW7 asked for Kshs. 100,000/=. When he refused to pay, they charged him. However, the trial court found this defence unconvincing. PW7 only became involved after the appellant’s arrest by the public members and the assignment by the OCS. 32. Secondly, the appellant’s defence was that the complainants did not allege defilement. According to him, both PW1 & PW2 said nothing happened to them and didn’t know him. The doctor also stated they were not defiled. This again is not entirely true. The appellant seems to impute defilement. That is why he claims ‘nothing happened.’ The charges convicted are attempted defilement. PW5 did not rule out attempted defilement. PW1 and PW2 were consistent and steadfast. They were not defiled. The appellant tried to defile but was unsuccessful. His brother came. The appellant corroborates that the house he took them belonged to his brother. Issues 33. Whether the prosecution proved the charges of attempted defilement beyond a reasonable doubt. 34. Whether the defence successfully disproved the prosecutions’ case 35. On the first appeal to this Court by virtue of the principles in Okeno v R [1972] EA 32 the appellant’s appeal is one on matters of Law and facts. “ All this has been explained time and time again that the appellate Court is mandated to analyze and re-evaluate the evidence adduced before the trial Court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial Court and bear in mind that unlike the trial Court it does not have the advantage and opportunity of hearing and seeing witness testify.” Analysis 36. The accused is charged with two counts of the offence of attempted defilement contrary to Section 9 (1) and (2) of the Sexual Offences Act which state; 9. Attempted defilement 1. A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4477/eng@2026-02-20 6

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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. 1. In order to prove its case against the accused, the prosecution was required to prove the age of the minor, the identity of the appellant as the victim’s assailant and his attempted commission of the offence. Age of the Complainants 38. Age is a critical element in sexual offences involving minors. The prosecution produced birth certificates for both complainants which were admitted in evidence. PW1 was aged 14 years, while PW2 was aged 17 years at the time of the offence. Under the Sexual Offences Act, both complainants are children, and therefore fall within the protective scope of the Act. The age of the complainants was therefore proved beyond reasonable doubt Elements of attempted defilement 39. Section 9(1) of the Sexual Offences Act, 2006 provides that a person who attempts to commit an act which would cause penetration with a child is guilty of the offence of attempted defilement. 40. The ingredients of attempted defilement are: a. The complainant is a minor; b. There is intent to penetrate; c. There is an overt act towards penetration; and d. Penetration does not occur. See Situma v Republic (Criminal Appeal E044 of 2021) [2025] KEHC 4537 (KLR) (Crim) (17 March 2025) (Judgment). Evidence of the Complainants 41. The testimonies of PW1 and PW2 were consistent, coherent and mutually reinforcing. Both narrated that: The appellant lured them to his house on the pretext of paying for an orange; He locked the door and threatened them with harm; He attempted to remove their clothes; He physically overpowered them and threw one onto the bed; There was clear sexual intent; the act was interrupted by the arrival of the appellant’s brother, enabling their escape. 42. Under Section 124 of the Evidence Act (Cap 80), the court may convict on the uncorroborated evidence of a complainant in a sexual offence if the court believes the complainant and records reasons. To comply with Section 124 of the evidence Act the trial Court is supposed to be satisfied that the only evidence is that of the alleged victim, the Court is further required to record the reasons in the proceedings and be satisfied the alleged victim is telling the truth. 43. PW5- on cross-examination he stated that no spermatozoa were seen on the children. No laceration. Hymen broken but old. The appellant in his statement stated that both PW1 and PW2 said nothing happened to them and the doctor also said they were not defiled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4477/eng@2026-02-20 7

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44. The Court respectfully notes David Aketch Ochieng [2015] eKLR where the Court (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.” 45. The appellant submits that the element of the offence was not proved beyond any reasonable doubts. There was no evidence of alleged attempted defilement. Pw1 and Pw2 told the court that nothing was done to them. The evidence of the complainants is not corroborated. He further stated that there was no attempt at penetration into their genitalia. 46. “Attempt” is defined in section 388 of the Penal Code as follows: “ 388. 47. Attempt defined (1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. (2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention. (3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.” On the evidence, the appellant in this case intended to commit the offence of defilement and be began to put his intention into execution by means of luring the complainants to his room, locking it up and after overpowering them and removed the skirt form one of them. The process towards defilement of the children was only halted by the intervention of the appellant’s brother. Identification of the Appellant 48. The offence occurred in broad daylight. The complainants were neighbours of the appellant and positively identified him by name. There was no possibility of mistaken identity. Defence of frame-up and extortion allegation 49. The appellant alleged that he was asked for Kshs.100,000/= by police officers to secure his release. This allegation was not supported by any independent evidence. There was no report or OB extract, and no https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4477/eng@2026-02-20 8

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witness was produced. Although there is no burden on an accused to prove his innocence, section 109 of the Evidence Act on Proof of particular fact provides that: “ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” The appellant failed to discharge this burden. 50. The court considers that the overt acts of luring the children to his room, struggling with the children and removing the skirts of one of them were acts proximate to the fulfilment of the act constituting the offence of defilement. In accordance with section 388 (2) of the Penal Code, “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”. Orders 51. Accordingly, for the reasons set out above, the Court finds that the appeal has no merit and it is dismissed. 52. File Closed. Order accordingly. DATED AND DELIVERED THIS 20TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mwangi for the DPP. Petitioner in person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4477/eng@2026-02-20 9

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