Jackson Mwai Gitau v Republic

4. d. The learned trial magistrate erred in law and fact by failing to find that the prosecution's case was marred with grave contradictions and inconsistencies that went to the root of the case. e. The learned trial magistrate erred in law and fact by convicting the appellant, but failed to note that the evidence of identification by recognition of the appellant was not positively proved. The respondent conceded to the appeal through M/s Vena Odero, prosecution counsel, who argued that: a. There was a possibility of error in the purported identification. b. Failure to avail crucial witnesses weakened the prosecution's case. 5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, keeping in mind that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno vs the Republic [1972] E.A 32 to guide my decision-making process. 6. Section 9 (1) of the Sexual Offences Act provides as follows: A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement. 7. An attempt to commit a crime is defined in the Oxford Concise Law Dictionary (2nd Edition) as: Any act that is more than merely preparatory to the intended commission of a crime; this act is itself a crime. 8. For an attempted offence to be committed, the actions complained of must pass the “but for” test. 9. Black’s Law Dictionary, on the other hand, defines the word attempt as follows: The fact or an instance of making an effort to accomplish something, esp. without success. Criminal law. An overt act that is done with the intent to commit a crime but that falls short of completing the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step toward commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building where a crime is expected to be committed. 10. In Benson Musumbi v Republic [2019] eKLR, the court considered what needed to be proven regarding the elements of the offence of attempted defilement. It stated as follows: 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. 11. An attempt is typically characterised as an inchoate offence. According to Black’s Law Dictionary, a principal feature of this crime is that it can occur even if the substantive offence is not successfully consummated. 12. An offence of attempted defilement, therefore, is established against an accused person when the prosecution has proved the following ingredients: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6768/eng@2026-05-20 2

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a. The age of the complainant; b. The overt act committed; and c. Positive identification of the assailant. These are the ingredients the prosecution must prove against an accused person. 13. The complainant underwent an age assessment, which estimated her age to be between 8 and 12 years. Consequently, her age was confirmed. 14. Dr. Julius Murimi Ntwiga examined the complainant and found the external genitalia to be normal, except for swelling in the left labia majora. Based on this finding, he concluded that an attempted defilement had taken place. 15. The learned trial magistrate's conclusion that attempted defilement was proven is correct and cannot be challenged. 16. The prosecution states the incident happened at 3a.m. The complainant testified that she was asleep when the appellant entered their house and asked about her mother. She told him her mother was not there. The appellant then got into bed with her, removed his trousers, and lay on top of her. She cried for help, but he covered her with a blanket. She then sneaked out and found some neighbours. A woman advised her to report to the plot’s caretaker, which she did. The caretaker went to the appellant's house, found him there, and ordered him to leave. 17. Jackson Mwai Gitau, the appellant, contended that at the time of the alleged offence, he was asleep in his house. When an accused raises an alibi defence, they do not assume any burden to prove that it is the truth. This was stated in the case of Kiarie vs Republic [1984] KLR, where the Court of Appeal held: An alibi raises a specific defence, and an accused person who puts forward an alibi as an answer to a charge does not, in law, thereby assume any burden of proving that answer, and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. 18. The incident happened around 3 a.m. The complainant reported she did not know the appellant prior to that day. The house was dark, and there was no information about how she recognized a stranger. Although she mentioned that some light was present when he was leaving, she did not specify its source or brightness. The prosecutor should have asked her about this. 19. A crucial witness was not summoned, and no reason was given. This witness was the caretaker who, according to the complainant, found the appellant in the house and ordered him to leave. The Court of Appeal in the case of Bukenya vs Uganda [1972] EA 549 (Lutta Ag. Vice President) held: The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution. 20. Based on the analysis of the record evidence, I conclude that the prosecution did not challenge the appellant's alibi defence. As a result, the conviction is unsafe. Therefore, I quash it, and the appellant is set free unless otherwise lawfully held. DELIVERED AND SIGNED AT NYANDARUA, THIS 20TH DAY OF MAY 2026 KIARIE WAWERU KIARIE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6768/eng@2026-05-20 3

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6768/eng@2026-05-20 4

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