Titus Gitonga v Republic

ii. That, the trial magistrate flouted in matters of fact and law by convicting the appellant on evidence that lacked requisite standard of beyond reasonable doubt. iii. That, the learned trial magistrate erred in both law and fact by rejecting the appellant defense without giving cogent reasons. iv. That, the sentence was harsh and excessive. Submissions 5. The appeal was canvassed by way of written submissions. Appellant’s Submission 6. On whether the trial court erred in law and fact by failing to note that the prosecution witnesses gave inconsistent, contradictory and conflicting testimonies, the appellant submitted on the evidence of PW1, wherein he testified that the accused turned to his side and undressed him and tried to insert his penis into his anus, and further relied on the evidence of PW2 who contended that there were no bruises or lacerations or discharge at the anal region based on the laboratory test. It was urged that the evidence is contradictory and inconsistent and the court should weigh the nature and strength of the alleged contradictory evidence against all the evidence tendered. 7. The appellant argued that PW2 and other witnesses are contradictory on the occurrence of the event and affect the substance of the charge. He relied on the case of David Ojeabuo vs Federal Republic of Nigeria and Dickson Elia Nsamba Shapwata & Another v The Republic Cr. App. No. 92 of 2007. 8. On whether the case was proved beyond reasonable doubt, the appellant submitted that the trial court erred in both law and fact by failing to prove the case beyond reasonable doubt. He relied on the case of Peter Ndoli Adisa v Republic (2018)eKLR, Michael Lokomar vs Republic (2017)eKLR and Philip Muiruri Ndaruga vs Rep(Criminal Appeal No.76 of 2012eKLR. Respondent’s Submissions 9. The respondent filed submissions dated 20/2/2026 through the prosecution counsel Adhi Guyatu Chepkwony and identified only one issue for determination; whether the prosecution proved the offence of attempted defilement against the appellant beyond reasonable doubt. She relied on Section 9(1) and 9 (2) of the Sexual Offences Act. The respondent further relied on the pronouncement in Benson Musumbi v Republic (2019)eKLR and John Gatheru Wanyoike v Republic (2019)eKLR. 10. Counsel submitted that the prosecution was bound to prove the age of the complainant, identification of the appellant and unsuccessful penetration. Counsel submitted on the age of the victim that the complainant testified in a voire dire examination that he was 13 years and in support of the foregoing, reliance was placed on the case of Hadson Ali Mwachongo v Republic (2016)eKLR and Edwin Nyambogo Onsongo vs Republic (2016)eKLR. 11. On whether the appellant was identified positively, counsel submitted that the appellant was a neighbour of the complainant. Counsel further submitted that the evidence on record demonstrates that the complainant spent a long time on the material date with the appellant and that the incident occurred during the day, thus the appellant was positively identified. 12. On proof of attempt, counsel submitted that there was an act to cause penetration that was not successful. Counsel relied on Section 388 of the Penal Code. Counsel further submitted that the appellant demonstrated his intention to commit attempted defilement by fondling the complainant’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5798/eng@2026-04-29 2

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private parts and by ordering him to remove his trousers and to lie face down and by lying on top of him, thus the appellant intended to carry out the act, but was unsuccessful. Analysis of the evidence before the trial Court 13. This being a first appeal, the duty of the first appellate court is to re-analyze and re-consider the evidence tendered before the trial court with a view to arriving at its own independent conclusions. See Okeno vs Republic [1972] EA 32. 14. The evidence before the trial court was as follows: 15. PW1, K.M testified on 24.10.2023 that he went to the police and told them that he had come from plucking miraa when the accused stopped him as he was going to church. The minor was in a hurry and told the accused that he was going to Thirenta but stayed in Nkadone. The accused asked the minor if he wanted a job and the minor agreed. The accused asked the minor to accompany him to church but the minor declined as he was dirty. The accused asked how he could locate the minor and the minor told him he could find him in Kaelo. The minor then proceeded to his employer’s place and swept. When the church hours ended, the minor went to wait for the accused and when accused saw the minor, he took him into the church for a while and met the accused friend and proceeded to Kaelo. 16. PW1 further testified that they went to the accused's house and he sent his friend to the restaurant where they usually ate to check for food and to tell the owner to reserve some for them. He further testified that the accused’s friend left and they entered the accused house where the accused called the minor over to the bed to lay down with him. He started fondling the minor while telling him that he was still immature. He then made him turn on his side and undressed him and tried to insert his penis into the minor’s anus while telling the minor to relax.PW1 added that when the accused heard his friend return, the accused told the minor to get off the bed and sit on jerrycan. The accused’s friend took his clothes and water and started washing the clothes. The minor left the house and started crying. 17. PW2 Emma Kananu, a clinical officer recalled examining and treating the minor in the matter. PW2 further stated that on 15/4/2023 at around 16.00 hours, she examined Keffer Mutwiri who was by then 13 years old. PW2 testified that PW1 complained of being sodomised by a person he knew and that the incident took place at Kaelo Seventh-day Church. According to the history and examination made, he opined that there were no bruises or lacerations or discharge at the anal region. It was her testimony that laboratory investigations were carried out and the anal swab showed no presence of spermatozoa and there was no evidence of penetration. PW2 produced a P3 form, treatment notes and a post-rape care form. 18. PW3 Brian Koech No. 112889, the investigating officer, stated that on 15/4/2023 at around 16.00hrs, PW1 reported a case of defilement. He narrated that between 2.00 -3.00 pm when people were coming from church, the accused approached him and promised him a job and later took him to his house and began fondling his private parts. Upon completing the report, he and P.C Mwathe went to the location of the house and arrested the accused who was in the company of his friend who fled during the operation. 19. DW1, in his sworn testimony, denied committing the offence by averring that he was being framed by the complainant’s father, who they conducted the miraa business together. He testified that they had a dispute which arose when a client who received khat(miraa) from them never paid and the complainant's father thought that the accused received the monies and swore to take revenge. DW1 also questioned why the minor never raised any alarm because the offence happened in the tenement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5798/eng@2026-04-29 3

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Determination 20. I have considered the evidence, grounds of appeal and the submissions by both sides. The issue for determination is whether the case against the appellant was proved beyond reasonable doubt. In other words, were the ingredients of the offence of attempted defilement proved? 21. Section 9(1) and 9(2) of the Sexual Offence Act provides that:“ 22. 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 vs Republic [2019] eKLR the court stated as follows on the ingredients of the offence of attempted defilement: “ 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.” 23. 24. From the above, it follows that this court has to establish the following elements in determining whether the offence of attempted defilement was proved beyond reasonable doubt: i. Whether the age of the minor was proved. ii. Whether there was an act to cause penetration, which was not successful. iii. Whether the appellant was positively identified by the minor as his assailant. iv. Whether the sentence meted out was harsh and excessive. On the first element of proof of age, in Charles Nega vs Republic Criminal Appeal No. 38 of 2015 [2016] eKLR Mrima J stated that: “ I however wish to further state that from the wording of Section 9 of the Sexual Offences Act (and unlike in the offences of defilement and rape where the exact age of the victim must be proved bearing the weight it has in sentencing), in an attempted defilement charge the prosecution only has to tender evidence that the victim was below the age of eighteen years and not necessarily the specific age. Needless to say if the specific age is availed to a trial court it equally has a bearing in sentencing upon conviction.” 25. In the instant appeal, I find that the age of the complainant was proved by the testimony of PW1 who stated that he was 13 years old. The same was further corroborated by the testimony of PW2 who produced the P3 which indicated that PW1 was 13 years. It was thus established beyond reasonable doubt that the complainant was a minor. I so find. 26. As to whether there was an act to cause penetration that was not successful, in the case of Daniel Simiyu Wanyonyi v Republic [2019] eKLR where Riechi J held that: “ …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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5798/eng@2026-04-29 4

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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”. 27. Similarly, in the case of Benson Musumbi v Republic [2019] eKLR] 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.” 28. From the above cases, it is thus clear that for the respondent to succeed in proving the case against the appellant, it had to prove that the appellant had intention to commit the offence and he started the execution of the harboured intention. 29. A further guidance from the determination of the case of David Ochieng Aketch vs Republic [2015] eKLR where Makau J observed that: “ 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.” 30. The appellant has not contested the manner of identification. However, it is one of the elements, and as such, a review of the evidence invites the Court to determine whether all the essential elements of the offence herein were proved. 31. Mativo J (as he was then) in the case of Watuku vs Republic (Criminal Appeal 08 of 2020) [2022] KEHC 4 (KLR) had this to say: Evidence from eyewitnesses plays an important role in all contested cases. However, the memory is a fragile and malleable instrument, which can produce unreliable yet convincing evidence. Because mistaken witnesses can be both honest and compelling, the risk of wrongful conviction in eyewitness identification cases is high, and can result in injustices. 32. From the above, it follows that the positive identification of an accused is an essential element of any offence. It is a fundamental part of the criminal process and the same must be properly tested to ensure that justice is served to both parties. Additionally, it is not lost to this court that a properly obtained, preserved and presented, eyewitness testimony directly linking the accused to the commission of the offence, is likely the most significant evidence of the prosecution. While testing identification evidence of a single witness, great care and caution should be taken to ascertain whether the surrounding circumstances were favourable to facilitate proper identification. 33. Therefore, to determine whether identification is not only proper but also truthful, the court must evaluate the believability of the witness who made the identification in question. Additionally, it is clear https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5798/eng@2026-04-29 5

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that it is competent to convict on evidence of a single witness if that evidence is reliable and satisfactory in every respect. It also trite that there is no particular number of witnesses required for proof of any fact. [See Lord Widgery, CJ comments in the case of Republic vs Turnbull [1976] 3 ALL ER 549 at page 552]. 34. From the above, the complainant and the appellant were neighbours and they spoke during the material time. As such, the appellant cannot deny that he was not the complainant’s aggressor. This is so since this was someone he was familiar with, and the evidence is of recognition rather than identification of a stranger, which makes it highly reliable. 35. From the evidence, it is clear that the appellant did not only prepare but also attempted to defile PW1. Considering this evidence and the case law cited above, I find that the appellant’s conviction was safe. 36. On sentence, it is trite that 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 herein, the appellant was a first-time offender and therefore, ought to have benefited from a less harsh sentence. 37. To that end, it is my finding that the 20-year sentence meted out by the trial magistrate was not only harsh but also excessive in the given circumstances. As such, it is only fair that this court interferes with the same. 38. Consequently, I uphold the conviction but set aside the 20-year sentence and substitute the same with 10 years, commencing from 16th April, 2023 which is the date of his arrest. DATED AND DELIVERED AT MERU THIS 29TH DAY OF APRIL, 2026. S.M. GITHINJI –JUDGE 29/4/2026 In the presence of:Ms. Adhi/Irungu for the State Appellant – Present at Meru G.K. Prison.- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5798/eng@2026-04-29 6

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