Benard Ngeiwa Kishiro v The Republic

3. An appellate court of the 1st instance is expected to while in handling the appeal before it re-evaluate and re-analyse the evidence produced in the trial court as if it was conducting a re-hearing and come to its own independent conclusion but always keeping in mind that it did not take the evidence of the witnesses and as such did not have the opportunity to observe the demeanour of the witnesses. It was held in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) that; It has been said over and over again that the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyse it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that. The well known case of Okeno vs Republic (1977) EA 32 which sets out that principle has been referred to in several decisions of this Court and of the High Court.’ Prosecution’s case 4. The complainant told the court that she was 16 years and in Form 2 at [Particulars Withheld] Secondary School. She added that on 18/12/2022, at 3 p.m., she was at home, when she saw the appellant who was a stranger to her coming in and she ran to the gate and asked him what he wanted and who he was. The appellant requested directions to her uncle's place. She gave him the directions and he left carrying a bucket of milk. 5. After she was done chores she was doing, the complainant went to the farm to collect firewood but within 5 minutes, she felt someone holding her neck while strangling her. The person was standing behind her and she could not see him clearly and when she turned, she saw it was the appellant. The appellant threw her against a nappier grass and bananas fence and she fell near the banana trees injuring her neck. 6. She added that the appellant came to where she was and climbed the fence and because she wanted to rescue herself, scooped soil mixed with stones and threw them on his face. She saw a sisal nearby which she took and hit him with it on his eyes. The appellant had removed his shirt which he threw at her which she took and threw it back on his face and she ran away. She added that when the appellant threw her on the fence, she thought that he wanted to rape her. She had heard of rape and she was scared it would happen to her and that is why she decided to defend herself. 7. The complainant added that her mother saw her and enquired about the problem. She added that she told her mother what happened when they got home and the mother sent her cousin one Erickson to go and look for the attacker. She added she described the man to her cousin who then said he knew him and that is how he was traced where he normally goes to drink. She was called to the scene with her mother and she identified the man who tried to attack her. She identified the appellant in court as the person who attacked her. 8. When the complainant was cross-examined, she told the court that the appellant was trying to defile her and that she did not tell her mother the appellant’s name because she didn't know it. She was categorical that she did not know the appellant before that date. She added that there are other houses near their homestead. 9. Anna Zekeya Wambua was the second witness who stated that on 18/12/2022, she left home at 3 p.m. to go to the market to buy vegetables and left PW1 with instructions to do some chores and collect firewood. She added that when she was returning, she noted that her house was open and PW1 was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6578/eng@2026-05-15 2

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absent. She remembered the issue of firewood and decided to go look for her where she was to collect firewood but did not see her. 10. The witness added that, she suddenly, she saw PW1 running and asked her what the problem was and she told her that a man had asked for directions to her uncle’s place and he left but when she was collecting firewood, the man held her neck and started strangling her. She repeated what PW1 had told her which is similar to what I have reproduced above. 11. After hearing what PW1 told her, she went home and telephoned the village elder who alerted Nyumba Kumi officials. There was a seating and she told them what had happened and they directed her to have the man arrested. She added that the appellant was arrested by Erickson. PW1 was able to identify the assailant and they took him to Kangundo police station. She added that she took the complainant to Kangundo Hospital where she was examined. She concluded by identifying the appellant as the man who was arrested. In a short cross-examination, the witness stated that the appellant was arrested near a well where he worked and that she was not there when he was being arrested. 12. PW3 was John Mutua, a clinical officer at Kimiti Level 4 Hospital who testified that she examined PW1 on 18/12/2022. The complainant went with the mother and other relatives and gave history of having been attacked by person who emerged from the bush, felled her, held her neck and tried to defile her. 13. Upon examination, he noted back pain, bruise on the left neck, redness and swelling on the right side of neck and tenderness on the right fist. On the vagina, they found it normal with the cervix normal and the hymen old and torn. There were no injuries and no bleeding in the vagina. The witness added that the lab test did not unearth anything and no spermatozoa was seen. The complainant was given drugs because of epithelial cells which is not necessarily connected to the act. 14. The fourth and last witness for the prosecution was number 26xxx9, PC Beth Wanjiru Kinyajui who was the investigating officer of the case. She testified that on 19/12/2022 when she noted the file minuted to her, the appellant was already in custody. She summoned the complainant and her witnesses and interrogated them and she established that the complainant had been taken to the hospital by the duty officers and she was given the treatment notes and lab test. She narrated what the complainant and PW2 told her and produced the complainant’s birth certificate as exhibit. Defence case 15. In the shortest of defences I have ever seen, the appellant told the court on oath that he lived in Mayuni and he did know anything about the case. In cross-examination, he repeated that he did not know anything about the case and he did not know the complainant. Analysis and determination 16. The appeal was disposed of by way of written submissions. I have read and considered the evidence of both sides and their respective submissions dated 7th October 2025 (the appellant’s) and 20th February 2026 (the respondent’s). Section 9(1) and (2) of the Sexual Offences Act which creates the offence of attempted defilement provides as follows; 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6578/eng@2026-05-15 3

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17. The parties in this matter are agreeable on the ingredients of the offence of attempted defilement which are the age of the victim, identification of the perpetrator and an attempt to penetrate. It is also common position that the age of the child was ascertained at 16 years. The issues in contest in this appeal are therefore whether the appellant was properly identified as the attacker and whether there was an act of attempt to penetrate. 18. I will start with the element of identification. The appellant has submitted that the complainant who was the only witness to the incident gave inconsistent and contradictory testimony when she stated that the appellant asked for directions from her then all of a sudden, she was being strangled. I do not see any inconsistency or contradiction in this portion of testimony and any other in the complainant’s evidence. 19. The appellant has also argued that the complaint’s evidence was not corroborated and it differed with the findings of the medical examination on her. Although the complaint was the only one who witnessed the attack, that alone does not make her testimony unbelievable. The court must consider other pieces of the prosecution’s case and examine whether they corroborate the testimony of a sole witness. That is what Section 124 of the Evidence Act was meant to cure because in sexual offences, it is more likely than not that the incidences are witnessed by the victims only since the same are carried out in secretive and isolated places. If the courts were to demand that two or more eye witnesses must be produced, there may never be any conviction thereby drawing back and frustrating the intention of the Legislature. Honourable Justice R. Nyakundi held in Baraka Kahindi v Republic [2019] KEHC 1962 (KLR) that; It is obvious that the broad principle of corroboration evidence relating to proof of criminal cases be weighed against the testimony of a single witness. However, the provision to section 124 gives discretion to the trial court to convict on evidence of a single witness against an accused person provided there is justification. That the evidence tested in every material fact way credible and in the mind of the judge/magistrate believed to be true in every aspect of the case to prove facts in issue. Even more relevant is the judge’s or magistrate’s summing up the evidence of a single witness on this point to which he or she has referred to form an opinion that the witness is to be believed as truthful and credible witness. That part of the provision to Section 124 of the Evidence Act is meant to safeguard against the dangers of relying on such evidence which could not in itself be cogent prima facie evidence to implicate an accused person for the offence charged.’ 20. The law allows the court to make a positive finding based on testimony of one witness as long as the same is believable. In any event I find the attack corroborated by the evidence of PW3 which narrated the nature of injuries suffered by the complainant which are consistent with the narration of the attack. Whether or not the act of attempted defilement was proved is a different issue. I therefore make a finding that the appellant was positively and properly identified by the complaint as her attacker on the material incidence. 21. I now turn to the most contentious issue of whether the prosecution proved that the appellant did an act to prove attempt to penetrate. Section 9 of the Sexual Offences Act is clear that an offence of attempted defilement is complete when the perpetrator takes an action or makes a move to penetrate the complainant. This act must be obvious, overt and intentional. The same cannot be presumed or inferred from a mere conduct of the accused’s body with the complainant. The intention must be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6578/eng@2026-05-15 4

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inferred from the way and manner of the attack and the manner the accused executed his intentions including any words used or said. It was held in J O O v Republic [2018] KEHC 1549 (KLR) that; While penetration is a key ingredient for the offence of defilement to be sustained, the prosecution in an offence of attempted defilement under section 9(1) (2) of the sexual offences Act must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the accused, and then prove steps taken by the accused to execute the defilement which did not succeed. Attempted defilement is a failed defilement, failed because there was no penetration such as was the case herein.’ 22. In this matter, the only act or move shown to have been done by the appellant was holding the complainant by the neck, removing his shirt and strangling her. With all due respect to the court and the complainant, I do not see any of these as an act manifesting intention to penetrate the vagina of the complainant. The appellant is not said to have even made an attempt to remove the clothes of the complainant or touch her private parts. He is said to have removed his shirt but, in my view, removing a shirt is not a sign of intention to penetrate. A person with intention to defile would not prioritise removing his shirt over his trousers or shorts. 23. The charge sheet as expected states that the appellant intended to use his penis to penetrate the vagina of the complainant yet he did not remove his organ or try to expose the organ of the complainant. Penetration cannot in all logical assumptions been done by one removing their shirts in an open place during daytime. Where the penis located in body in a body of a man is a matter of common knowledge and I doubt whether removing a shirt instead of trousers or shorts can help a man accomplish an act of penetration. It is clear to me that the acts the appellant did had nothing to show intention of setting his privates parts on any part of the complaint’s body leave alone the genital organs. 24. The trial court in its judgment posed a question; if the complainant had not defended herself when the appellant removed his short, what were his intentions? I take this to be a very dangerous assumption because if we were to take this position, almost every other offence which involves violent and unwelcome conduct of the accused person’s body and the complainant’s would constitute attempted defilement. Not all attacks are aimed at defiling or raping a victim. Intentions can only be inferred from a clear and overt act or move which if successful are capable of leading to penetration. 25. In view of what I have stated above, it is my considered opinion that the offence of attempted defilement was not proved and I proceed to order as follows; 1. The conviction and sentence in Kangundo Chief Magistrate’s Court sexual offence case number E055 of 2022 dated 27-03-2024 are hereby set aside and quashed. 2. The appellant shall be released from prison forthwith unless otherwise lawfully held. DATED SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026 B.M. MUSYOKI JUDGE OF THE HIGH COURT Judgment delivered in presence of the appellant and Mr. Mang’are for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6578/eng@2026-05-15 5

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