Republic v Sammy (Sexual Offence E020 of 2022) [2025] KEMC 372 (KLR)

relationship with another woman in the plot that they lived in. The accused then later decided to marry another woman with whom they have two (2) children and that seems to be the genesis of his problems as per his testimony. 4. The accused testified that when he started his life afresh, he never bothered her. When they separated the complainant warned him not to ask for custody or visitation rights over their children. He believed that this case was framed to enable him negotiate a reunion with the complainant. He said the only independent witness who was brought to court was their son who could not stop crying and the court asked that he be released from court seeing the trauma he had. The accused called his witness, Susan Mueni Kilonzo (DW 2) who is his current wife stated that the accused was arrested out of a report his former wife had made. DW 2 was at a loss as to what the first wife wanted and was open to them being co-wives if that was the issue. Analysis 5. In analyzing the case at hand, the court notes that the accused was charged with the ofience of defilement contrary to Section 8 (1) as read with 8 (4) of the Sexual Offences Act which states: “ Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the ofience of attempted rape and is liable upon conviction for imprisonment for a term which shall not be less than five years but which may be enhanced to imprisonment for life.” 6. He also faces the count of malicious damage to property contrary to Section 339(1) of the Penal Code which stipulates as follows: “ Any person who wilfully and unlawfully destroys or damages any property is guilty of an ofience, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years.” 7. Therefore, this court finds that the following points fall for determination: a. Whether the accused attempted to rape the complainant? and b. Whether the accused maliciously damaged a TV set belonging to the complainant? A. Whether The Accused Attempted To Rape The Complainant? 8. In order to set out what an attempt is as per the law, it is crucial to lay down Section 388 of the Penal Code which defines an attempt as follows; “ (1) When a person, intending to commit an ofience, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the ofience, he is deemed to attempt to commit the ofience. (2) It is immaterial, except so far as regards punishment, whether the ofiender does all that is necessary on his part for completing the commission of the ofience, 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. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/372/eng@2025-04-17 2

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(3) 9. It is immaterial that by reason of circumstances not known to the ofiender it is impossible in fact to commit the ofience.” Turning to case law, in the case of Francis Mutuku Nzangi v Republic [2013] eKLR, the Court of Appeal explained these provisions as follows; “ Our understanding of this provisions is that if a person conceives an idea or plan to commit an ofience and sets out to efiectuate the intention by taking definite steps or puts in motion a chain of events or state of things calculated to attain that objective as manifested by some open and discernible act or acts but fails to achieve his objective, he will be guilty only of an attempt to commit the ofience. The attempt is proved whether or not that person did all the acts necessary to perfect the ofience and quite irrespective of what intervening act or change of heart may have aborted the fulfillment. It also matters not that circumstances did in fact exist, unbeknown to the person, that would have rendered his success impossible.” 10. From the evidence on record, I find that the prosecution failed to prove the attempt to rape for various reasons. First, the accused is alleged to have forced his way into the house and in the presence of his children he started wrestling with the complainant in raising her skirt. Not only is this highly unlikely in the presence of children but the complainant did not say that he uttered any words that would lead her to believe he indeed wanted to rape her. If her testimony is to be believed he could have wanted to expose her indecently or even assault her sexually using his fingers and not necessarily that he wanted to rape her. 11. Secondly, the manner in which the accused is said to have begun to put his alleged intention to rape the complainant showed means that could be adapted to the fulfillment of two other ofiences as shown above. For clarity the evidence tendered is that the accused pulled her skirt up and forcefully tried to pull down her biker and later inserted his fingers into her vagina forcefully. The insertion of his fingers into the vagina as alleged was a crime in itself. Sexual assault crystallized at that point if the complainant’s testimony was believable. 12. Lastly, rape as per section 4 of the Sexual Offences Act occurs when an accused inserts his penis into the vagina of his victim. Was there any overt act done by the accused to attempt to cause his penis to penetrate the complainant’s vagina? None at all. There was no evidence that the accused tried to remove his penis and attempt to place it inside the complainant’s vagina. There was therefore no overt act which manifested his alleged intention to rape the complainant. 13. Guided by the above, this court does not find that the prosecution proved the case of attempted rape to the required standard of law. In addition thereto, if indeed the accused had penetrated the complainant’s vagina with his fingers during the struggle as alleged, medical evidence would have proven forceful entry and the charge of Sexual Assault would have been complete. No medical evidence was tendered. For record purposes, the ofience of sexual assault is in this regard defined in section 5 of the Sexual Offences Act as follows: “ (1) Any person who unlawfully— (a) penetrates the genital organs of another person with— i. any part of the body of another or that person; or ii. an object manipulated by another or that person except where such penetration is carried out https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/372/eng@2025-04-17 3

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for proper and professional hygienic or medical purposes; (b) (2) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person’s body, is guilty of an ofience termed sexual assault. A person guilty of an ofience under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.” B. Did The Accused Maliciously Destroy The Complainant’s Television Set? 14. This court finds that the Prosecution failed to inspire an abiding conviction in the certainty of the second count of malicious damage of a TV set because of the following: a. There was no other independent witness who witnessed the damage and testified to the same. The court disregarded the testimony of the child who was too traumatized and cried out during his testimony with no end. He was an unfortunate pawn in an issue where his parents who are adults should have known better than to expose him to such a case. In the end the complainant’s testimony could not be corroborated; b. Secondly, there was no expert testimony from an electrical tv repair expert to ascertain any damage to a TV set; c. The said TV was never brought to court to establish how it was damaged; d. There was no evidence tendered as to how the damage was occasioned e. No evidence was tendered as to whether the said damage was occasioned with malice or ill intent on the part of the accused. Conclusion: Accordingly, and by dint of section 215 of the Criminal Procedure Code, Cap 75 of the laws of Kenya the accused is hereby acquitted of the ofiences of attempted rape against E. K. contrary to section 4 of the Sexual Offences Act. Further, the accused is acquitted of the ofience of malicious damage to property contrary to section 339 (1) of the Penal Code. DATED THIS 17TH DAY OF APRIL, 2025 AT WAMUNYU LAW COURTS. HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE In The Presence Of: For DPP: Mati K. Accused: present Court Assistant: Ohito S. Page 4 of 4 S.O. E020/22 https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/372/eng@2025-04-17 4

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