(Being an appeal from the judgment and sentence of Hon. G. Ollimo, SRM in Mombasa Magistrates Court Sexual Offence (SO) Case No. E098 of 2020 decided on 17/4/2024)
J U D G M E N T
1. The appellant, Abdalla Faraji was charged and convicted of the offence of attempted defilement contrary to section 9(1) and (2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars of the offence were that the appellant on 11/3/2020 at Majengo area in Mvita Sub-County within Mombasa County, intentionally attempted to cause his genital organ (penis) to penetrate the genital organ (anus) of Y.K. a child aged 9 years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that at the same place and time as in the principal charge he unlawfully and intentionally committed an indecent act with a child by touching the private part namely anus of Y. K. a child aged 9 years.
3. The prosecution called 6 witnesses in support of its case. PW 1, Y.K., was the complainant; PW 2, B.F.S. is the complainant’s mother; PW 3, K.Y.K. is the complainant’s father; PW 4, Amina Ismael is the village elder of Guraya in Majengo where the complainant, his parents and the appellant all reside; PW 5, PC Nelson Ochieng of Makupa police station was the investigating officer in the case and PW 6, Dr. Julius Maneno Sango produced a P3 form completed for the complainant by his colleague Dr. Nafisa who was away on further studies.
4. The complainant, aged 9 years gave sworn evidence after the trial court was satisfied upon a voire dire examination that he understood the meaning of an oath. He said that on the material day at around 3.00 p.m. the appellant who is well known to him as Masiga and they are neighbours in the village called him as he was playing with his friend, Sofia, a girl younger than him. He went to where the appellant was at the back of Mamake Mustafa’s house door and the appellant gave him a banana and orange. The appellant then placed the complainant on his lap and the complainant went on to say that the appellant who was smoking at the time, “… wanted to take off my short, he was not able to remove short. I then ran away. He kissed my neck before I ran away. We were only the two. I ran home. I told my father and mother. Masiga then sought for forgiveness after my mother went for her (sic). He knelt down.” He went on to testify that he was taken to Makupa police station and to hospital.
5. In cross-examination, the complainant said that the appellant kissed him after caressing him and that he touched his buttocks. He repeated the same upon re-examination.
6. The complainant’s parents recounted what the complainant said in evidence without adding much on what he said as they were not present when the alleged incident took place.
7. PW 4, the village alder and PW 5, the investigating officer also did not have much to add to the complainant’s evidence.
8. PW 6 Sango said that according to the P3 form there was nothing significant in relation to the offence.
9. Upon being placed on his defence the appellant gave sworn evidence. He denied that he committed the offence and said that this was a frame up by the complainant and his parents. On cross-examination, he said that he had no prior differences with the parents.
10. After the trial, the accused person was found guilty of the principal charge of attempted defilement and he was convicted and sentenced to serve 10 years imprisonment.
11. The appellant was aggrieved by the decision of the trial court and in his petition of appeal dated 30/4/2024 has set out several grounds of appeal which are summarized as follows:
a. that there was no corroboration of the evidence of the minor especially by his friends with whom he was playing with at the time and since the offence was committed in broad daylight and,
b. that the evidence was hearsay and there were no eye witnesses,
c. that the offence of attempt as set out under section 388 of the Penal Code was not proved as the complainant’s pair of shorts which the appellant allegedly attempted to remove was not produced as evidence which fact weakened the cogency of the case for the prosecution,
d. that the trial court failed to analyze and properly evaluate the inconsistencies in the evidence of the prosecution witnesses, and
e. that the conviction and sentence were against the weight of the evidence presented before the court.
12. The appeal was opposed by the respondent who filed grounds of opposition dated 12/11/2024 and filed in court on 13/11/2024 stating that:
a. identification of the appellant was established
b. the age of the minor was proved at the trial court.
c. the fact of attempted defilement was proved.
d. the trial court guaranteed the appellant’s right to a fair trial.
e. the appellant’s defense was considered by the trial court and a finding made on the same.
f. the prosecution proved its case beyond reasonable doubt.
g. the period spent by the appellant in custody was considered during sentencing.
h. the sentence meted by the trial court was lawful.
13. The appeal was disposed of by way of written submissions filed by the appellant while the respondent relied on the grounds of opposition only.
14. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
15. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
16. The issue for determination is whether the prosecution proved the case of attempted defilement against the appellant beyond a reasonable doubt.
17. I have examined and re-evaluated the evidence tendered before the trial court as well as the submissions by learned counsels.
18. Learned counsel for the appellant submitted that the basic elements of the offence of attempted defilement were not proved. That the evidence tendered must go beyond preparation to possible commission of the offence and that the intention to commit the crime must likewise be proved. He cited the Court of Appeal in the case of Abdi Ali Bere v Republic (2015) eKLR where it expressed itself on what constitutes attempt to commit an act as follows;
“Although a casual reading of section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence”.
19. Learned counsel submitted further that the learned trial magistrate failed to consider the inconsistencies in the evidence of the complainant and his mother PW 2. I have considered the same and I do not see any material inconsistencies as alluded to that would render the evidence of either of those witnesses doubtful. Learned counsel also submitted that the sentence meted out was manifestly harsh and excessive. However, that cannot be true because the learned trial magistrate meted the minimum sentence provided for under the law for the offence.
20. Learned counsel further submits that there was circumstantial evidence which the learned trial magistrate failed to properly consider. The evidence relied upon in this case is that of the complainant and it was direct evidence and not circumstantial.
21. The submissions made by learned counsel on proof of penetration would be relevant where the offence charged was defilement and not attempted defilement as is the case herein.
22. Section 9(1) and (2) of the Sexual Offences Act under which the offence of attempted defilement is created provide 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 a liable upon conviction to imprisonment for a term of not less than ten tears
23. On the other hand, an attempt to commit a offence is defined under section 388 of the Penal Code (Cap. 63) Laws of Kenya as follows:
“S. 388(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.”
24. The learned trial magistrate properly appraised himself of the law on attempt and considered the case of Francis Mutuku Nzangi v Republic [2013] KECA 112 (KLR) which expounds on that provision thus:
“Our understanding of this provisions is that if a person conceives an idea or plan to commit an offence and sets out to effectuate 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 offence. The attempt is proved whether or not that person did all the acts necessary to perfect the offence 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.”
25. In Keteta v R, (1972) EA 532, 534, Madan Ag. CJ. (as he then was) explained an attempt to commit an offence as follows:
“A mere intention to commit an offence which is in fact not committed cannot constitute an attempt to commit it. There must also be an overt act which is immediately and not remotely connected with the offence intended to be committed and which manifests the intention to commit the offence. A remotely connected act will not do.”
26. In a more recent decision, he Court of Appeal considering the definition of attempt in the case of Isaack Ali Issack v Republic [2020] KECA 699 (KLR) held that the above section brings out two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention.
27. In the case of Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR) the Court of Appeal, considering a case of attempted defilement held that the main ingredient of this offence is committing an act which would cause penetration and this is the actus reus of the offence. The Court of Appeal further endorsed the High Court approach on the proof of an attempt where it had said that:
“The question that calls for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant”
28. The Court of Appeal also observed that the High Court had cited the case of Mussa s/o Saidi v Republic [1962] EA 454 where the Court of Appeal said in part relating to attempt:
“Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence.”
29. In the case of Cheruiyot above, the Court of Appeal in allowing the appeal observed of the evidence tendered that:
“As the evidence of the 2nd complainant revealed, the appellant did not even touch her. He did not even remove her underpants. He did not remove his genital organ. He did not even attempt to reach her genital organs. Without in any way trying to define the acts which would cause penetration, we find that the acts of the appellant described by JC, if they happened at all, are too remote to an act of penetration.”
30. In this case, the appellant conceded that the child sat on his lap but denied that he was the one who put the child on the lap. The child said that the appellant wanted to take off his pair of shorts but he was not able to remove it. He did not say in what manner the appellant wanted to take off his pair of shorts. He later said in cross-examination and re-examination that the appellant touched his buttocks and caressed him. Cross-examination of the complainant by the appellant did not impeach his evidence. There is evidence that when confronted with what he had done to the child the appellant begged for forgiveness to a point of kneeling down before the complainant’s mother. That conduct by the appellant was corroboration of the complainant’s evidence of what that the appellant had done to him.
31. The learned trial magistrate was satisfied that this evidence was sufficient to prove the offence of attempted defilement. However, in doing so he relied on his own finding that the appellant tried to remove the complainants shorts which was not the case. The complainant said the appellant wanted to remove his shorts.
32. When examined properly, I find that there is reasonable doubt that the appellant’s conduct towards the complainant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant. I find that all his actions taken together were too remote to constitute an act proximate to cause penetration of the complainant’s genital organ with is genital organ.
33. It is not demonstrable in this case at what point one can say that the appellant’s intention was to cause penetration of the complainant’s genital organ with his genital organ. Penetration under section 2 of the SOA is defined to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. The entire prosecution evidence did not make mention of the genital organ of the complainant nor that of the appellant.
34. Consequently, I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of attempted defilement as was arrived at by the learned trial magistrate. I find that for the reason that an important ingredient of the offence of attempted defilement, the intention to cause penetration of the complainant’s genitalia, has not been proved beyond a reasonable doubt. The acts of the appellant towards the complainant were despicable, to say the least. But all the same they were too removed from an act of penetration of the complainant’s genital organ with his genital organ. They could properly be described as acts of preparation but not an attempt as was held in the case of Abdi Ali Bere v Republic (2015) eKLR cited by learned counsel for the appellant above.
35. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
36. The offence the appellant was charged with carries a very severe sentence of minimum ten years imprisonment. Indeed, that was the sentence meted out upon him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
37. Going by this decision, I find that the learned trial magistrate failed to consider the gravity of the charge facing the appellant and to ensure that the evidence tendered by the prosecution proved beyond a reasonable doubt a case of attempted defilement.
38. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
ANDAYI W. FRANCIS
JUDGE
Delivered, dated and signed on the Virtual Platform, Teams, this 27th day of January 2025 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Nandi h/b for Mr. Ngiri for the respondent
Johnson h/b for Etropia court assistant.
J U D G M E N T
1. The appellant, Abdalla Faraji was charged and convicted of the offence of attempted defilement contrary to section 9(1) and (2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars of the offence were that the appellant on 11/3/2020 at Majengo area in Mvita Sub-County within Mombasa County, intentionally attempted to cause his genital organ (penis) to penetrate the genital organ (anus) of Y.K. a child aged 9 years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that at the same place and time as in the principal charge he unlawfully and intentionally committed an indecent act with a child by touching the private part namely anus of Y. K. a child aged 9 years.
3. The prosecution called 6 witnesses in support of its case. PW 1, Y.K., was the complainant; PW 2, B.F.S. is the complainant’s mother; PW 3, K.Y.K. is the complainant’s father; PW 4, Amina Ismael is the village elder of Guraya in Majengo where the complainant, his parents and the appellant all reside; PW 5, PC Nelson Ochieng of Makupa police station was the investigating officer in the case and PW 6, Dr. Julius Maneno Sango produced a P3 form completed for the complainant by his colleague Dr. Nafisa who was away on further studies.
4. The complainant, aged 9 years gave sworn evidence after the trial court was satisfied upon a voire dire examination that he understood the meaning of an oath. He said that on the material day at around 3.00 p.m. the appellant who is well known to him as Masiga and they are neighbours in the village called him as he was playing with his friend, Sofia, a girl younger than him. He went to where the appellant was at the back of Mamake Mustafa’s house door and the appellant gave him a banana and orange. The appellant then placed the complainant on his lap and the complainant went on to say that the appellant who was smoking at the time, “… wanted to take off my short, he was not able to remove short. I then ran away. He kissed my neck before I ran away. We were only the two. I ran home. I told my father and mother. Masiga then sought for forgiveness after my mother went for her (sic). He knelt down.” He went on to testify that he was taken to Makupa police station and to hospital.
5. In cross-examination, the complainant said that the appellant kissed him after caressing him and that he touched his buttocks. He repeated the same upon re-examination.
6. The complainant’s parents recounted what the complainant said in evidence without adding much on what he said as they were not present when the alleged incident took place.
7. PW 4, the village alder and PW 5, the investigating officer also did not have much to add to the complainant’s evidence.
8. PW 6 Sango said that according to the P3 form there was nothing significant in relation to the offence.
9. Upon being placed on his defence the appellant gave sworn evidence. He denied that he committed the offence and said that this was a frame up by the complainant and his parents. On cross-examination, he said that he had no prior differences with the parents.
10. After the trial, the accused person was found guilty of the principal charge of attempted defilement and he was convicted and sentenced to serve 10 years imprisonment.
11. The appellant was aggrieved by the decision of the trial court and in his petition of appeal dated 30/4/2024 has set out several grounds of appeal which are summarized as follows:
a. that there was no corroboration of the evidence of the minor especially by his friends with whom he was playing with at the time and since the offence was committed in broad daylight and,
b. that the evidence was hearsay and there were no eye witnesses,
c. that the offence of attempt as set out under section 388 of the Penal Code was not proved as the complainant’s pair of shorts which the appellant allegedly attempted to remove was not produced as evidence which fact weakened the cogency of the case for the prosecution,
d. that the trial court failed to analyze and properly evaluate the inconsistencies in the evidence of the prosecution witnesses, and
e. that the conviction and sentence were against the weight of the evidence presented before the court.
12. The appeal was opposed by the respondent who filed grounds of opposition dated 12/11/2024 and filed in court on 13/11/2024 stating that:
a. identification of the appellant was established
b. the age of the minor was proved at the trial court.
c. the fact of attempted defilement was proved.
d. the trial court guaranteed the appellant’s right to a fair trial.
e. the appellant’s defense was considered by the trial court and a finding made on the same.
f. the prosecution proved its case beyond reasonable doubt.
g. the period spent by the appellant in custody was considered during sentencing.
h. the sentence meted by the trial court was lawful.
13. The appeal was disposed of by way of written submissions filed by the appellant while the respondent relied on the grounds of opposition only.
14. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
15. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
16. The issue for determination is whether the prosecution proved the case of attempted defilement against the appellant beyond a reasonable doubt.
17. I have examined and re-evaluated the evidence tendered before the trial court as well as the submissions by learned counsels.
18. Learned counsel for the appellant submitted that the basic elements of the offence of attempted defilement were not proved. That the evidence tendered must go beyond preparation to possible commission of the offence and that the intention to commit the crime must likewise be proved. He cited the Court of Appeal in the case of Abdi Ali Bere v Republic (2015) eKLR where it expressed itself on what constitutes attempt to commit an act as follows;
“Although a casual reading of section 388 of the Penal Code may suggest that an attempt is committed immediately the accused person commits an overt act towards the execution of his intention, it has long been accepted that in a charge of attempting to commit an offence, a distinction must be drawn between mere preparation to commit the offence and attempting to commit the offence”.
19. Learned counsel submitted further that the learned trial magistrate failed to consider the inconsistencies in the evidence of the complainant and his mother PW 2. I have considered the same and I do not see any material inconsistencies as alluded to that would render the evidence of either of those witnesses doubtful. Learned counsel also submitted that the sentence meted out was manifestly harsh and excessive. However, that cannot be true because the learned trial magistrate meted the minimum sentence provided for under the law for the offence.
20. Learned counsel further submits that there was circumstantial evidence which the learned trial magistrate failed to properly consider. The evidence relied upon in this case is that of the complainant and it was direct evidence and not circumstantial.
21. The submissions made by learned counsel on proof of penetration would be relevant where the offence charged was defilement and not attempted defilement as is the case herein.
22. Section 9(1) and (2) of the Sexual Offences Act under which the offence of attempted defilement is created provide 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 a liable upon conviction to imprisonment for a term of not less than ten tears
23. On the other hand, an attempt to commit a offence is defined under section 388 of the Penal Code (Cap. 63) Laws of Kenya as follows:
“S. 388(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.”
24. The learned trial magistrate properly appraised himself of the law on attempt and considered the case of Francis Mutuku Nzangi v Republic [2013] KECA 112 (KLR) which expounds on that provision thus:
“Our understanding of this provisions is that if a person conceives an idea or plan to commit an offence and sets out to effectuate 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 offence. The attempt is proved whether or not that person did all the acts necessary to perfect the offence 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.”
25. In Keteta v R, (1972) EA 532, 534, Madan Ag. CJ. (as he then was) explained an attempt to commit an offence as follows:
“A mere intention to commit an offence which is in fact not committed cannot constitute an attempt to commit it. There must also be an overt act which is immediately and not remotely connected with the offence intended to be committed and which manifests the intention to commit the offence. A remotely connected act will not do.”
26. In a more recent decision, he Court of Appeal considering the definition of attempt in the case of Isaack Ali Issack v Republic [2020] KECA 699 (KLR) held that the above section brings out two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention.
27. In the case of Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR) the Court of Appeal, considering a case of attempted defilement held that the main ingredient of this offence is committing an act which would cause penetration and this is the actus reus of the offence. The Court of Appeal further endorsed the High Court approach on the proof of an attempt where it had said that:
“The question that calls for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant”
28. The Court of Appeal also observed that the High Court had cited the case of Mussa s/o Saidi v Republic [1962] EA 454 where the Court of Appeal said in part relating to attempt:
“Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence.”
29. In the case of Cheruiyot above, the Court of Appeal in allowing the appeal observed of the evidence tendered that:
“As the evidence of the 2nd complainant revealed, the appellant did not even touch her. He did not even remove her underpants. He did not remove his genital organ. He did not even attempt to reach her genital organs. Without in any way trying to define the acts which would cause penetration, we find that the acts of the appellant described by JC, if they happened at all, are too remote to an act of penetration.”
30. In this case, the appellant conceded that the child sat on his lap but denied that he was the one who put the child on the lap. The child said that the appellant wanted to take off his pair of shorts but he was not able to remove it. He did not say in what manner the appellant wanted to take off his pair of shorts. He later said in cross-examination and re-examination that the appellant touched his buttocks and caressed him. Cross-examination of the complainant by the appellant did not impeach his evidence. There is evidence that when confronted with what he had done to the child the appellant begged for forgiveness to a point of kneeling down before the complainant’s mother. That conduct by the appellant was corroboration of the complainant’s evidence of what that the appellant had done to him.
31. The learned trial magistrate was satisfied that this evidence was sufficient to prove the offence of attempted defilement. However, in doing so he relied on his own finding that the appellant tried to remove the complainants shorts which was not the case. The complainant said the appellant wanted to remove his shorts.
32. When examined properly, I find that there is reasonable doubt that the appellant’s conduct towards the complainant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant. I find that all his actions taken together were too remote to constitute an act proximate to cause penetration of the complainant’s genital organ with is genital organ.
33. It is not demonstrable in this case at what point one can say that the appellant’s intention was to cause penetration of the complainant’s genital organ with his genital organ. Penetration under section 2 of the SOA is defined to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. The entire prosecution evidence did not make mention of the genital organ of the complainant nor that of the appellant.
34. Consequently, I find that when properly appraised, the prosecution evidence cannot be a foundation for a conviction for the offence of attempted defilement as was arrived at by the learned trial magistrate. I find that for the reason that an important ingredient of the offence of attempted defilement, the intention to cause penetration of the complainant’s genitalia, has not been proved beyond a reasonable doubt. The acts of the appellant towards the complainant were despicable, to say the least. But all the same they were too removed from an act of penetration of the complainant’s genital organ with his genital organ. They could properly be described as acts of preparation but not an attempt as was held in the case of Abdi Ali Bere v Republic (2015) eKLR cited by learned counsel for the appellant above.
35. In the circumstances, I find that it was unsafe for the trial court to find that the case had been proved beyond a reasonable doubt. I find that the same was not proved beyond a reasonable doubt and consequently the conviction cannot stand.
36. The offence the appellant was charged with carries a very severe sentence of minimum ten years imprisonment. Indeed, that was the sentence meted out upon him. In arriving at the decision to convict the appellant for the offence charged, the trial court ought to have considered the opinion of the Court of Appeal with respect to heavy minimum sentences as was advised in the case of Hamisi Bakari & Another vs. Republic [1987] eKLR that:
“…where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved. Seven years is a long time to serve in a case where the issues are not clear.”
37. Going by this decision, I find that the learned trial magistrate failed to consider the gravity of the charge facing the appellant and to ensure that the evidence tendered by the prosecution proved beyond a reasonable doubt a case of attempted defilement.
38. Accordingly, for the reasons set out above, I allow the appeal and quash and set aside the conviction and sentence of the appellant for the offence of defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act. The appellant is set at liberty forthwith unless otherwise lawfully held.
ANDAYI W. FRANCIS
JUDGE
Delivered, dated and signed on the Virtual Platform, Teams, this 27th day of January 2025 in the presence of:
The appellant in person from Shimo La Tewa prison.
Ms Nandi h/b for Mr. Ngiri for the respondent
Johnson h/b for Etropia court assistant.