(Being an appeal from the Judgment of Hon. D. Kioko (RM) at Kangundo Chief Magistrate Court Sexual Offence Case No. E038 of 2023 delivered on 10th July 2024)
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of attempted rape contrary to Section 4 of the Sexual Offences Act No. 3 of 2006 has lodged this appeal. He seeks that his conviction be quashed and 20 years imprisonment sentence set aside.
2. The appeal is premised on the following grounds, that the Learned trial Magistrate erred in matters of law and fact by failing to observe that the evidence procured by the prosecution did not have any probative value; by failing to find that the essential ingredients of the offence were not discharged against the Appellant; by failing to find that the whole case was marred by material contradictions and inconsistencies; by failing to properly consider the cogent defence case which exonerated the Appellant from the alleged crime and the Honourable court imposed a sentence of 20 years imprisonment which is manifestly harsh.
B. Background
3. Before the trial court, the appellant was charged with the offence of attempted rape contrary to Section 4 of the Sexual Offences Act No. 3 of 2006 and an alternative charge of committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act. The particulars of the offence were that on 9th September 2023 at Matuu area in Matungulu sub county within Machakos county, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of Pauline Nzula without her consent.
4. The appellant pleaded not guilty to the convicted charge and to prove its case, the prosecution called 5 witnesses. The defence did not call any other witness.
C. Prosecution case
5. PW1, Paulata Wayua, testified that she is related to Pauline, whom she has raised as her daughter. She stated that on 9th September 2023, she left her house to go to the farm and, while there, heard screams coming from her home, which was approximately 800 metres away. She returned home and found several people present. She testified that Emily (PW2) informed her that a man had been inside her house and had attempted to touch Pauline, who was seated on a chair. PW1 further stated that Emily told her she had found the man laying Pauline on the chair and lowering her clothes, but upon screaming, the man fled. By the time PW1 arrived at the house, the man had already boarded his motorcycle and escaped. PW1 testified that she took Pauline, recovered a mobile phone found under the table, and proceeded to Matuu Police Post in the company of Emily, where Emily explained that a man had sexually assaulted Pauline. She further stated that together with her husband, they took Pauline to hospital, where she was treated and issued with a P3 Form, medical summary sheet and PRC form, after which they returned home. She also testified that she recorded a statement at the police station and later saw the accused person, whom she identified in court as her uncle.
6. On cross-examination, PW1 confirmed that she heard the screams from a distance of about 800 metres. She stated that she usually leaves the door open but clarified that not everyone is allowed to enter the house. She further testified that she had been informed that the person inside the house was removing his clothes, although she did not personally see any clothing. She stated that she went to the police station at about 1.00 p.m. and recorded her statement at 4.00 p.m. She testified that she found the mobile phone on the table but did not take any photographs of it. She further stated that after taking the phone to the police station, it was only handed back to her by the police when she came to court. PW1 stated that she was aware of the consequences of lying on oath and denied that the arrest of the accused was motivated by any land dispute. She further testified that she had previously reported the accused for defilement
7. On re-examination, PW1 stated that she first went to Matuu Ma Mwitu Police Post on 9th September 2023 to report the matter and record her statement. She further stated that she later recorded another statement at KBC Police Station on 15th November 2023. She clarified that she does not live on the land referred to by the accused and that the said land is not in dispute.
8. PW2, Emily Achieng, testified that on 9th September 2023 at about 1.30 p.m., she was in her house when three children went to her and informed her that someone had arrived on a motorcycle and entered their house. The children told her that the person had grabbed Pauline and Lisa, locked them inside the house, and was beating them. PW2 testified that she proceeded to the house and peeped through the window, where she saw Pauline lying naked on a sofa while the man knelt between her legs with his hands on his penis. She stated that she shouted at him, asking what he was doing, and that he responded in kamba that he was the father of Wayua. She further testified that she went to the door and attempted to lock him inside, but he overpowered her and even attempted to slap her, which she dodged. She stated that the man looked for something to hit her with, and when she screamed, he mounted his motorcycle and fled.
9. PW2 further testified that after a short while, neighbours arrived, including the complainant’s guardian, Paulata Wayua, who entered the house and recovered a mobile phone, which they took to Matuu Police Station. She stated that Pauline was 21 years old, had a disability and was unable to talk or walk. PW2 testified that she recorded a statement with the police and that when the accused was later arrested, she identified him as the person she had seen on the material day. She also identified the accused in court.
10. On cross-examination, PW2 stated that PW1’s house is constructed of stone and has metallic windows. She explained that she accessed the window through a nearby fence and was therefore able to peep through the open window. She stated that she did not ask the accused for his phone and that when the phone was taken to the police station, it had six missed calls. She further stated that she did not produce any clothes alleged to have been removed from the complainant and that she did not note the registration number of the accused’s motorcycle. She testified that upon the accused’s arrest, Wayua stated that the accused was her uncle. She further stated that although she identified the accused, no identification parade was conducted, as she did not know how such a parade is carried out. She added that it took approximately 15 to 20 minutes for Wayua to arrive at the house after she raised the alarm.
11. PW3, Sergeant Sam Wamuro, testified that he is attached to Matungulu Sub-County at Kisukioni Police Post. He stated that on 9th September 2023 at about 5.38 p.m., the Chief of Kisukioni went to the police post and informed him that he had received a call from Matuu Police Post reporting that there was a suspect who had defiled a mentally disabled girl. He stated that the information received was that the suspect was from Wendano but was then in Kisukioni. PW3 testified that he contacted officers from Matuu Police Post, who informed him that the suspect had gone to a pub to relax. Consequently, together with the area chief, they proceeded to the said pub. As they did not know the suspect by appearance and only had his name, they found two men and three women at the establishment who identified the suspect. PW3 testified that they arrested the suspect and took him to Kisukioni Police Post, after which officers from Matuu Police Post were called and later picked him up.
12. On cross-examination, PW3 stated that his involvement in the matter was limited to the arrest of the accused person.
13. PW4, Dr. Farah Mohammed, testified on behalf of Nurse Jacinta Gatungu, who had prepared the medical summary sheet and the PRC form. PW4 stated that he had worked with Jacinta Gatungu for approximately six (6) years and was therefore familiar with her signature. He further testified that the P3 form was filled by John Anyul, a colleague with whom he had worked for about two (2) years, and whose signature and handwriting he was familiar with. PW4 testified that the medical summary sheet related to Pauline Nzula, aged 21 years, and contained a history of sexual assault by a person known to her. On general examination, the complainant was noted to have bruises on the lower lip and strangulation marks on the right side of the neck. On genital examination, the external genitalia were normal, the vaginal examination revealed no injuries, and the anal region was also normal. PW4 produced the medical summary sheet as Prosecution Exhibit 2.
14. He further testified that the PRC form contained similar findings, with the additional information that the complainant had intellectual disabilities, and he produced it as Prosecution Exhibit 3. PW4 also stated that the P3 form, prepared on 13th September 2023, was based on the PRC form, and he produced it as Prosecution Exhibit 1.
15. On cross-examination, PW4 testified that the medical reports were based on the history taken and physical examination conducted by the attending medical personnel. He stated that he did not personally examine the complainant but worked with the team that did. He clarified that his testimony was limited to interpreting and producing the findings as recorded in the medical documents.
16. PW5 PC Joshua Muendo, testified that he is based at KBC Police station, working at the gender desk. He stated that on 9th September 2023, the OCS informed him that he had been allocated a case reported at Matuu police post and was to investigate it. He testified that the case involved attempted rape. Consequently, he contacted doctors from medical and frontier Nairobi who picked up the victim and her mother and took them to Mama Lucy Hospital. Upon their return, he received a medical report indicating that the victim had sustained injuries on the lower lip and strangulations mark on the left side of the neck.
17. PW5 further testified that, after following up with witness statements, he established that the accused went to the house and found 2 children and the victim, chased the children away and remained alone with the victim Pauline Nzula, 21 years old. He then locked himself in the house and attempted to rape the victim. The children rushed to the neighbour who then went to the house, peeped through the window and saw the victim naked with the accused kneeling between the victim’s legs. The neighbour screamed prompting the accused to open the door and flee on his motorcycle.
18. During cross-examination, PW5 stated that he relied on the evidence of the arresting officer, who confirmed that the phone number of the owner belonged to the accused, a fact confirmed during arrest. He stated that the incident occurred at 12.30p.m and was reported at 2:30p.m. He added that the phone was brought to him on 9th September and remained in his possession until he handed it over to PW1 to give the prosecutor.
19. PW5 acknowledged that no photo graphs of the scene were taken and that according to the report, the phone found at the scene was not brought there by the accused. He emphasized that the only evidence available was the eye witness account of the neighbour, who got to the scene and saw the accused attempting to rape the victim. He confirmed that no clothes were taken to the station that he never saw the accused at the scene and that he had never seen him the accused with the phone before. He also stated that no identification parade that was conducted. Finally, he noted that he has many years of experience conducting investigations.
20. With the testimony of these five witnesses, the prosecution closed its case. Upon consideration, the court found that the prosecution had established a prima facie case. the appellant was therefore placed on his defence. He elected to give an unsworn statement and did not call any more witnesses.
D. Defence case
21. DW1, the Appellant, gave an unsworn statement in which he denied the offence and claimed that he had been framed. He testified that the case stemmed from a long-standing family dispute spanning over ten (10) years. He stated that PW1 was the instigator of the case, and that this was the second time she had caused him to be charged with a sexual offence. He further stated that PW1 recorded her statement two months after his arrest and did not explain whether she had been coerced into making the statement.
22. DW1 testified that on 2nd September 2023, he went to Soki area in Matuu to sell vegetables. After completing his business, a woman requested him to ferry her on his motorcycle to her destination, and they agreed on a fare of Kshs. 100/=. He stated that while on the way, the woman searched her pockets for money but did not find any and informed him that she had left the money at her workplace and had also forgotten her phone. He testified that she requested to use his mobile phone, valued at Kshs. 5,000/=, with Safaricom line No. 0794 444 574, to make a call. He stated that the woman then began walking away with his phone, prompting him to follow her back and ask where she was going with it. At that point, she allegedly screamed, claiming that he was trying to take her phone, which attracted a crowd. DW1 testified that he then mounted his motorcycle and left, leaving his phone with the woman.
23. DW1 further testified that he went to Mwaura Police Post, where he found a lorry that had been stopped, and police officers prevented him from entering the post. He explained his predicament to them, and they asked whether he knew the woman, which he stated he did not. He testified that he was advised to investigate the matter further and then make a report. He stated that he later went to town with Mbugua and explained the issue to some women who informed him that they knew the woman involved.
24. DW1 further testified that on 9th September 2023, he was informed that the woman in question was PW2, Emily Achieng. He stated that he sent the person who gave him that information to request for the return of his phone and was informed that PW2 had said he should collect it on 10th September 2023, which did not materialise. He testified that he was arrested on 9th September 2023. He further stated that on 11th September 2023, he was taken to court but did not take plea and was returned to KBC Police Station. He stated that he was subsequently charged and taken to court on 13th September 2023.
25. After the close of the defence case the appellant stated that he was not going to file any submissions and the matter was scheduled for delivery of the judgment.
26. The trial court found the appellant guilty of the offence of attempted rape. On sentencing the trial court considered the accused mitigation and the pre-sentence report which revealed the accused previous conviction for defilement. Consequently, the appellant was sentenced the appellant to 20 years imprisonment.
E. The Appeal
27. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction quashed and the sentence set aside. He relies on his written submissions dated 23rd May 2025 and 29th August 2025 while the respondent relies on its submissions dated 11th August 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
28. The Appellant submitted that his appeal raised six issues for determination: whether the trial was conducted in violation of the Constitution and other applicable statutes; whether there were breaches of procedural law; whether the Appellant was prejudiced by the manner in which the evidence was tendered, admitted, and relied upon despite lacking probative value; whether the medical evidence placed the Appellant at the alleged scene of the offence or whether the conviction was founded on mere suspicion; whether the prosecution proved its case beyond reasonable doubt; and whether the appeal had merit and should result in an acquittal.
29. On the first issue, the Appellant argued that his constitutional rights under Articles 50(2)(k) and 25 of the Constitution were infringed. He contended that he was denied the opportunity to hear the complainant testify and to cross-examine her. He further argued that the trial court failed to conduct voir dire examination to determine the complainant’s competence to testify. He submitted that the trial court also failed to comply with the order of 6th December 2023, which directed that the complainant be taken to Kangundo Level IV Hospital for psychiatric evaluation. According to the Appellant, no inquiry was conducted to establish whether the complainant understood the nature and meaning of an oath, and instead, her guardian was called to testify in her own capacity as an independent witness. He relied on sections 125, 128, 145, and 146 of the Evidence Act, submitting that the determination of whether a witness is vulnerable and requires the assistance of an intermediary is closely linked to a voir dire examination or a preliminary inquiry. He contended that the failure to follow this procedure occasioned a miscarriage of justice and urged this Court to intervene.
30. On the second issue, the Appellant submitted that the trial court misapplied section 31 of the Sexual Offences Act relating to the use of an intermediary. He argued that the court failed to follow the prescribed procedure in determining whether the complainant, being not only the alleged victim of a sexual offence but also a person who appeared fearful or vulnerable, required the assistance of an intermediary to communicate with the court. He contended that although the complainant’s guardian, PW1, was called by the prosecution as its first witness in her own capacity, the trial court failed to ascertain whether the complainant exhibited the requisite incapacity to be treated as a vulnerable or traumatised witness.
31. The Appellant relied on the decisions in M.M v Republic [2014] eKLR, Kennedy Chmwani Mulokoto v Republic [2011] eKLR, Francis Ogoti Otundo v Republic [2012] eKLR and Joseph Kamau Kirobi v Republic, Criminal Application No. 215 of 2009, to submit that the trial court misapplied the law governing the role of an intermediary. He argued that although PW1’s evidence was admitted, there was no communication of the complainant’s evidence to the court through an intermediary, as required by law. According to him, what transpired amounted to hearsay evidence devoid of probative value.
32. On the third issue, the Appellant submitted that hearsay statements from a witness who was not shown to be competent ought to have been disregarded by the trial court. He further contended that the investigations conducted were not credible, particularly with regard to identification. He argued that reliance was placed on dock identification, which is inherently unreliable, and that the investigations were deficient for failing to produce a sketch map or photographs of the alleged scene. The Appellant further submitted that since the complainant did not identify him during the trial, it remained speculative how he could be singled out as the perpetrator in a homestead where several men resided. In support of this submission, he relied on Mombasa Court of Appeal Criminal Appeal No. 82 of 2010, Eliud Kamau Njuguna v Republic, and urged the Court to allow the appeal.
33. On the fourth issue, the Appellant submitted that there was no conclusive proof of penile penetration and that the evidence of PW1 and PW2 was contradictory on the question of identification. He argued that the trial court therefore erred by making assumptions not supported by the evidence on record. In support, he relied on R v Ismail Hussein Ibrahim [2018] eKLR and J.O.O v Republic [2015] eKLR, contending that the trial court ignored the medical evidence tendered by PW4 and instead relied on suspicion to convict him.
34. On the fifth issue, the Appellant relied on Gabriel Kamau Njoroge v Republic [1982–88] KAR and Salim Juma Dimiro v Republic, Criminal Appeal No. 114 of 2004, to submit that there was no convincing or compelling evidence upon which the trial court could properly found a conviction against him.
35. On the sixth issue, the Appellant submitted that although sexual offenders are generally not granted probationary sentences, judicial discretion and evolving jurisprudence may provide avenues for relief in appropriate cases. He therefore prayed that the appeal be allowed in its entirety, the conviction quashed, and the sentence set aside, and that he be set at liberty forthwith. He further urged the Court to consider his entitlement to any remedies flowing from what he termed a wrongful conviction.
b) Respondent’s Submissions
36. The Respondent submitted that the central issue for determination was whether the prosecution had proved its case beyond reasonable doubt.
37. The Respondent’s case was that the prosecution evidence clearly established the occurrence of an attempted rape. PW2, an independent eyewitness, testified that she found a naked man kneeling between the complainant’s legs, holding his penis, while the complainant lay on a sofa without clothes on her lower body. PW2’s intervention interrupted the act. Medical evidence adduced by PW4 corroborated the use of force, showing bruises on the complainant’s lips and strangulation marks on her neck, supporting the inference that the attempted sexual act was non-consensual.
38. On the issue of identification, the Respondent acknowledged that the complainant did not testify due to mental incapacity and that the prosecution relied primarily on PW2 and circumstantial evidence. The Respondent conceded that PW2 had not known the assailant prior to the incident and that no identification parade was conducted. Furthermore, while a mobile phone recovered at the scene was alleged to belong to the Appellant, the Respondent admitted that the linkage was not conclusively proved, as the chief and other persons involved in tracing the phone were not called as witnesses and no subscription or call data records were produced.
39. Addressing the Appellant’s complaint on violation of the right to a fair trial under Article 50(2)(k) of the Constitution, the Respondent submitted that the mere failure to call the complainant did not, of itself, vitiate the trial. The complainant was an adult with intellectual disability, and although no formal application was made to declare her a vulnerable witness or to appoint an intermediary, the law does not mandate that a conviction to rest solely on a victim’s testimony. The Respondent placed reliance on the case of MM versus Republic [2004] eKLR to argue that omissions which do not occasion a failure of justice are curable.
40. In conclusion, the Respondent submitted that the trial court placed value on PW2’s evidence in linking the Appellant to the offence. While acknowledging that the manner in which identification was conducted was not error free and cannot be relied upon. The Respondent argued that it was nevertheless possible to link the assailant to the scene through other evidence, even in the absence of the victim’s testimony. The respondent conceded, however, that these lapses, weakened the prosecution’s case and ultimately supported the appeal.
Analysis and determination
41. This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R [1957] EA 336; Ruwalla v R [1957] EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR .
42. Upon careful review of the record of appeal and submissions by parties, I discern the following key issues for determination:
a. Whether the prosecution proved the offence of attempted rape to the required standard of proof beyond reasonable doubt.
b. Whether the evidence on record sufficiently identified the Appellant as the perpetrator of the offence.
c. Whether the failure to call the complainant as a witness and the manner in which her mental incapacity was addressed infringed the Appellant’s right to a fair trial
Whether the prosecution proved the offence of attempted rape to the required standard of proof beyond reasonable doubt;
43. Section 4 of the Sexual Offences Act, defines attempted rape as
“Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence 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.”
44. The High court in Abraham Otieno v Republic [2011] KEHC 2213 (KLR), elaborated on these ingredients, holding that : -
“For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about to rape the victim but was stopped in tracks and or in the nick of time. The intention to rape must be manifest. Such intention can be manifested for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but does not go the whole hog because of factus interveniens, that would be good evidence of attempted rape. Alternatively, if the culprit without expressing his intentions verbally gets hold of the victim, fondles her, removes her clothes including her pants and also undresses himself in preparation thereof but for one reason or another something happens which compels him stop, again that would be good evidence of attempted rape.”
45. For a conviction to lie, the prosecution must establish, beyond reasonable doubt, that the accused intentionally and unlawfully attempted to cause penetration of the complainant’s genital organs without consent. Actual penetration need not be proved, but there must be clear evidence of an overt act that is immediately and proximately connected to the intended offence.
46. In the present case, the prosecution relied primarily on the evidence of PW2. She stated that upon peeping through the window, she saw a man kneeling between the complainant’s legs, naked, holding his penis, while the complainant lay on a sofa without clothes on her lower body. PW2’s intervention by screaming interrupted the act.
47. This testimony was corroborated by the medical evidence produced by PW4, which revealed bruises on the complainant’s lips and strangulation marks on her neck, consistent with the use of force.
48. The evidence presented clearly demonstrated conduct that went beyond mere preparation and constituted a direct movement towards the commission of rape. The accused’s actions, being naked, positioning himself between the complainant’s legs, and holding his penis—manifested an unequivocal intention to penetrate. The intervention of PW2 was the only factor preventing completion of the act.
49. Accordingly, the Court finds that the prosecution proved both the actus reus and mens rea of attempted rape to the required standard of proof beyond reasonable doubt.
Whether the evidence on record sufficiently identified the Appellant as the perpetrator of the offence
50. Despite the fact of an attempted rape having been proved, criminal liability can only attach if the prosecution further establishes, beyond reasonable doubt, that it was the Appellant who committed the offence.
51. The evidence linking the Appellant to the offence was anchored on two strands: visual identification by PW2 the sole eye witness and circumstantial evidence relating to a mobile phone allegedly recovered at the scene. PW2 testified candidly that she did not know the assailant prior to the incident. The incident occurred in broad daylight; however, no identification parade was conducted following the Appellant’s arrest. Instead, PW2 purported to identified the Appellant in court, resulting to dock identification.
52. It is trite law that dock identification, particularly where a witness had no prior acquaintance with the accused and no identification parade was conducted, is generally unsafe unless supported by other cogent evidence. The Court of Appeal Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR) emphasize that;
“Dock identification is worthless the court should not rely on a dock identification unless this has been preceded by a properly conducted identification parade. A witness should be asked to give description of the accused and the prosecution should then arrange a fair identification parade.”
53. The investigative failure to conduct an identification parade in this case was therefore material and prejudicial. This court concurs with the Respondent’s concession that the identification evidence was not free from the possibility of error.
54. The prosecution further relied on a mobile phone allegedly recovered from the scene. It was contended that when number associated with the phone was dialled, it rang, and was linked to the Appellant. However, the evidentiary chain was incomplete. The area chief who allegedly provided the Appellant’s number was not called as a witness. The persons who made the calls were not called, no subscriber registration data or call data records were produced to link the line to the Appellant. PW5 admitted that he never saw the Appella
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A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of attempted rape contrary to Section 4 of the Sexual Offences Act No. 3 of 2006 has lodged this appeal. He seeks that his conviction be quashed and 20 years imprisonment sentence set aside.
2. The appeal is premised on the following grounds, that the Learned trial Magistrate erred in matters of law and fact by failing to observe that the evidence procured by the prosecution did not have any probative value; by failing to find that the essential ingredients of the offence were not discharged against the Appellant; by failing to find that the whole case was marred by material contradictions and inconsistencies; by failing to properly consider the cogent defence case which exonerated the Appellant from the alleged crime and the Honourable court imposed a sentence of 20 years imprisonment which is manifestly harsh.
B. Background
3. Before the trial court, the appellant was charged with the offence of attempted rape contrary to Section 4 of the Sexual Offences Act No. 3 of 2006 and an alternative charge of committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act. The particulars of the offence were that on 9th September 2023 at Matuu area in Matungulu sub county within Machakos county, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of Pauline Nzula without her consent.
4. The appellant pleaded not guilty to the convicted charge and to prove its case, the prosecution called 5 witnesses. The defence did not call any other witness.
C. Prosecution case
5. PW1, Paulata Wayua, testified that she is related to Pauline, whom she has raised as her daughter. She stated that on 9th September 2023, she left her house to go to the farm and, while there, heard screams coming from her home, which was approximately 800 metres away. She returned home and found several people present. She testified that Emily (PW2) informed her that a man had been inside her house and had attempted to touch Pauline, who was seated on a chair. PW1 further stated that Emily told her she had found the man laying Pauline on the chair and lowering her clothes, but upon screaming, the man fled. By the time PW1 arrived at the house, the man had already boarded his motorcycle and escaped. PW1 testified that she took Pauline, recovered a mobile phone found under the table, and proceeded to Matuu Police Post in the company of Emily, where Emily explained that a man had sexually assaulted Pauline. She further stated that together with her husband, they took Pauline to hospital, where she was treated and issued with a P3 Form, medical summary sheet and PRC form, after which they returned home. She also testified that she recorded a statement at the police station and later saw the accused person, whom she identified in court as her uncle.
6. On cross-examination, PW1 confirmed that she heard the screams from a distance of about 800 metres. She stated that she usually leaves the door open but clarified that not everyone is allowed to enter the house. She further testified that she had been informed that the person inside the house was removing his clothes, although she did not personally see any clothing. She stated that she went to the police station at about 1.00 p.m. and recorded her statement at 4.00 p.m. She testified that she found the mobile phone on the table but did not take any photographs of it. She further stated that after taking the phone to the police station, it was only handed back to her by the police when she came to court. PW1 stated that she was aware of the consequences of lying on oath and denied that the arrest of the accused was motivated by any land dispute. She further testified that she had previously reported the accused for defilement
7. On re-examination, PW1 stated that she first went to Matuu Ma Mwitu Police Post on 9th September 2023 to report the matter and record her statement. She further stated that she later recorded another statement at KBC Police Station on 15th November 2023. She clarified that she does not live on the land referred to by the accused and that the said land is not in dispute.
8. PW2, Emily Achieng, testified that on 9th September 2023 at about 1.30 p.m., she was in her house when three children went to her and informed her that someone had arrived on a motorcycle and entered their house. The children told her that the person had grabbed Pauline and Lisa, locked them inside the house, and was beating them. PW2 testified that she proceeded to the house and peeped through the window, where she saw Pauline lying naked on a sofa while the man knelt between her legs with his hands on his penis. She stated that she shouted at him, asking what he was doing, and that he responded in kamba that he was the father of Wayua. She further testified that she went to the door and attempted to lock him inside, but he overpowered her and even attempted to slap her, which she dodged. She stated that the man looked for something to hit her with, and when she screamed, he mounted his motorcycle and fled.
9. PW2 further testified that after a short while, neighbours arrived, including the complainant’s guardian, Paulata Wayua, who entered the house and recovered a mobile phone, which they took to Matuu Police Station. She stated that Pauline was 21 years old, had a disability and was unable to talk or walk. PW2 testified that she recorded a statement with the police and that when the accused was later arrested, she identified him as the person she had seen on the material day. She also identified the accused in court.
10. On cross-examination, PW2 stated that PW1’s house is constructed of stone and has metallic windows. She explained that she accessed the window through a nearby fence and was therefore able to peep through the open window. She stated that she did not ask the accused for his phone and that when the phone was taken to the police station, it had six missed calls. She further stated that she did not produce any clothes alleged to have been removed from the complainant and that she did not note the registration number of the accused’s motorcycle. She testified that upon the accused’s arrest, Wayua stated that the accused was her uncle. She further stated that although she identified the accused, no identification parade was conducted, as she did not know how such a parade is carried out. She added that it took approximately 15 to 20 minutes for Wayua to arrive at the house after she raised the alarm.
11. PW3, Sergeant Sam Wamuro, testified that he is attached to Matungulu Sub-County at Kisukioni Police Post. He stated that on 9th September 2023 at about 5.38 p.m., the Chief of Kisukioni went to the police post and informed him that he had received a call from Matuu Police Post reporting that there was a suspect who had defiled a mentally disabled girl. He stated that the information received was that the suspect was from Wendano but was then in Kisukioni. PW3 testified that he contacted officers from Matuu Police Post, who informed him that the suspect had gone to a pub to relax. Consequently, together with the area chief, they proceeded to the said pub. As they did not know the suspect by appearance and only had his name, they found two men and three women at the establishment who identified the suspect. PW3 testified that they arrested the suspect and took him to Kisukioni Police Post, after which officers from Matuu Police Post were called and later picked him up.
12. On cross-examination, PW3 stated that his involvement in the matter was limited to the arrest of the accused person.
13. PW4, Dr. Farah Mohammed, testified on behalf of Nurse Jacinta Gatungu, who had prepared the medical summary sheet and the PRC form. PW4 stated that he had worked with Jacinta Gatungu for approximately six (6) years and was therefore familiar with her signature. He further testified that the P3 form was filled by John Anyul, a colleague with whom he had worked for about two (2) years, and whose signature and handwriting he was familiar with. PW4 testified that the medical summary sheet related to Pauline Nzula, aged 21 years, and contained a history of sexual assault by a person known to her. On general examination, the complainant was noted to have bruises on the lower lip and strangulation marks on the right side of the neck. On genital examination, the external genitalia were normal, the vaginal examination revealed no injuries, and the anal region was also normal. PW4 produced the medical summary sheet as Prosecution Exhibit 2.
14. He further testified that the PRC form contained similar findings, with the additional information that the complainant had intellectual disabilities, and he produced it as Prosecution Exhibit 3. PW4 also stated that the P3 form, prepared on 13th September 2023, was based on the PRC form, and he produced it as Prosecution Exhibit 1.
15. On cross-examination, PW4 testified that the medical reports were based on the history taken and physical examination conducted by the attending medical personnel. He stated that he did not personally examine the complainant but worked with the team that did. He clarified that his testimony was limited to interpreting and producing the findings as recorded in the medical documents.
16. PW5 PC Joshua Muendo, testified that he is based at KBC Police station, working at the gender desk. He stated that on 9th September 2023, the OCS informed him that he had been allocated a case reported at Matuu police post and was to investigate it. He testified that the case involved attempted rape. Consequently, he contacted doctors from medical and frontier Nairobi who picked up the victim and her mother and took them to Mama Lucy Hospital. Upon their return, he received a medical report indicating that the victim had sustained injuries on the lower lip and strangulations mark on the left side of the neck.
17. PW5 further testified that, after following up with witness statements, he established that the accused went to the house and found 2 children and the victim, chased the children away and remained alone with the victim Pauline Nzula, 21 years old. He then locked himself in the house and attempted to rape the victim. The children rushed to the neighbour who then went to the house, peeped through the window and saw the victim naked with the accused kneeling between the victim’s legs. The neighbour screamed prompting the accused to open the door and flee on his motorcycle.
18. During cross-examination, PW5 stated that he relied on the evidence of the arresting officer, who confirmed that the phone number of the owner belonged to the accused, a fact confirmed during arrest. He stated that the incident occurred at 12.30p.m and was reported at 2:30p.m. He added that the phone was brought to him on 9th September and remained in his possession until he handed it over to PW1 to give the prosecutor.
19. PW5 acknowledged that no photo graphs of the scene were taken and that according to the report, the phone found at the scene was not brought there by the accused. He emphasized that the only evidence available was the eye witness account of the neighbour, who got to the scene and saw the accused attempting to rape the victim. He confirmed that no clothes were taken to the station that he never saw the accused at the scene and that he had never seen him the accused with the phone before. He also stated that no identification parade that was conducted. Finally, he noted that he has many years of experience conducting investigations.
20. With the testimony of these five witnesses, the prosecution closed its case. Upon consideration, the court found that the prosecution had established a prima facie case. the appellant was therefore placed on his defence. He elected to give an unsworn statement and did not call any more witnesses.
D. Defence case
21. DW1, the Appellant, gave an unsworn statement in which he denied the offence and claimed that he had been framed. He testified that the case stemmed from a long-standing family dispute spanning over ten (10) years. He stated that PW1 was the instigator of the case, and that this was the second time she had caused him to be charged with a sexual offence. He further stated that PW1 recorded her statement two months after his arrest and did not explain whether she had been coerced into making the statement.
22. DW1 testified that on 2nd September 2023, he went to Soki area in Matuu to sell vegetables. After completing his business, a woman requested him to ferry her on his motorcycle to her destination, and they agreed on a fare of Kshs. 100/=. He stated that while on the way, the woman searched her pockets for money but did not find any and informed him that she had left the money at her workplace and had also forgotten her phone. He testified that she requested to use his mobile phone, valued at Kshs. 5,000/=, with Safaricom line No. 0794 444 574, to make a call. He stated that the woman then began walking away with his phone, prompting him to follow her back and ask where she was going with it. At that point, she allegedly screamed, claiming that he was trying to take her phone, which attracted a crowd. DW1 testified that he then mounted his motorcycle and left, leaving his phone with the woman.
23. DW1 further testified that he went to Mwaura Police Post, where he found a lorry that had been stopped, and police officers prevented him from entering the post. He explained his predicament to them, and they asked whether he knew the woman, which he stated he did not. He testified that he was advised to investigate the matter further and then make a report. He stated that he later went to town with Mbugua and explained the issue to some women who informed him that they knew the woman involved.
24. DW1 further testified that on 9th September 2023, he was informed that the woman in question was PW2, Emily Achieng. He stated that he sent the person who gave him that information to request for the return of his phone and was informed that PW2 had said he should collect it on 10th September 2023, which did not materialise. He testified that he was arrested on 9th September 2023. He further stated that on 11th September 2023, he was taken to court but did not take plea and was returned to KBC Police Station. He stated that he was subsequently charged and taken to court on 13th September 2023.
25. After the close of the defence case the appellant stated that he was not going to file any submissions and the matter was scheduled for delivery of the judgment.
26. The trial court found the appellant guilty of the offence of attempted rape. On sentencing the trial court considered the accused mitigation and the pre-sentence report which revealed the accused previous conviction for defilement. Consequently, the appellant was sentenced the appellant to 20 years imprisonment.
E. The Appeal
27. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction quashed and the sentence set aside. He relies on his written submissions dated 23rd May 2025 and 29th August 2025 while the respondent relies on its submissions dated 11th August 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
28. The Appellant submitted that his appeal raised six issues for determination: whether the trial was conducted in violation of the Constitution and other applicable statutes; whether there were breaches of procedural law; whether the Appellant was prejudiced by the manner in which the evidence was tendered, admitted, and relied upon despite lacking probative value; whether the medical evidence placed the Appellant at the alleged scene of the offence or whether the conviction was founded on mere suspicion; whether the prosecution proved its case beyond reasonable doubt; and whether the appeal had merit and should result in an acquittal.
29. On the first issue, the Appellant argued that his constitutional rights under Articles 50(2)(k) and 25 of the Constitution were infringed. He contended that he was denied the opportunity to hear the complainant testify and to cross-examine her. He further argued that the trial court failed to conduct voir dire examination to determine the complainant’s competence to testify. He submitted that the trial court also failed to comply with the order of 6th December 2023, which directed that the complainant be taken to Kangundo Level IV Hospital for psychiatric evaluation. According to the Appellant, no inquiry was conducted to establish whether the complainant understood the nature and meaning of an oath, and instead, her guardian was called to testify in her own capacity as an independent witness. He relied on sections 125, 128, 145, and 146 of the Evidence Act, submitting that the determination of whether a witness is vulnerable and requires the assistance of an intermediary is closely linked to a voir dire examination or a preliminary inquiry. He contended that the failure to follow this procedure occasioned a miscarriage of justice and urged this Court to intervene.
30. On the second issue, the Appellant submitted that the trial court misapplied section 31 of the Sexual Offences Act relating to the use of an intermediary. He argued that the court failed to follow the prescribed procedure in determining whether the complainant, being not only the alleged victim of a sexual offence but also a person who appeared fearful or vulnerable, required the assistance of an intermediary to communicate with the court. He contended that although the complainant’s guardian, PW1, was called by the prosecution as its first witness in her own capacity, the trial court failed to ascertain whether the complainant exhibited the requisite incapacity to be treated as a vulnerable or traumatised witness.
31. The Appellant relied on the decisions in M.M v Republic [2014] eKLR, Kennedy Chmwani Mulokoto v Republic [2011] eKLR, Francis Ogoti Otundo v Republic [2012] eKLR and Joseph Kamau Kirobi v Republic, Criminal Application No. 215 of 2009, to submit that the trial court misapplied the law governing the role of an intermediary. He argued that although PW1’s evidence was admitted, there was no communication of the complainant’s evidence to the court through an intermediary, as required by law. According to him, what transpired amounted to hearsay evidence devoid of probative value.
32. On the third issue, the Appellant submitted that hearsay statements from a witness who was not shown to be competent ought to have been disregarded by the trial court. He further contended that the investigations conducted were not credible, particularly with regard to identification. He argued that reliance was placed on dock identification, which is inherently unreliable, and that the investigations were deficient for failing to produce a sketch map or photographs of the alleged scene. The Appellant further submitted that since the complainant did not identify him during the trial, it remained speculative how he could be singled out as the perpetrator in a homestead where several men resided. In support of this submission, he relied on Mombasa Court of Appeal Criminal Appeal No. 82 of 2010, Eliud Kamau Njuguna v Republic, and urged the Court to allow the appeal.
33. On the fourth issue, the Appellant submitted that there was no conclusive proof of penile penetration and that the evidence of PW1 and PW2 was contradictory on the question of identification. He argued that the trial court therefore erred by making assumptions not supported by the evidence on record. In support, he relied on R v Ismail Hussein Ibrahim [2018] eKLR and J.O.O v Republic [2015] eKLR, contending that the trial court ignored the medical evidence tendered by PW4 and instead relied on suspicion to convict him.
34. On the fifth issue, the Appellant relied on Gabriel Kamau Njoroge v Republic [1982–88] KAR and Salim Juma Dimiro v Republic, Criminal Appeal No. 114 of 2004, to submit that there was no convincing or compelling evidence upon which the trial court could properly found a conviction against him.
35. On the sixth issue, the Appellant submitted that although sexual offenders are generally not granted probationary sentences, judicial discretion and evolving jurisprudence may provide avenues for relief in appropriate cases. He therefore prayed that the appeal be allowed in its entirety, the conviction quashed, and the sentence set aside, and that he be set at liberty forthwith. He further urged the Court to consider his entitlement to any remedies flowing from what he termed a wrongful conviction.
b) Respondent’s Submissions
36. The Respondent submitted that the central issue for determination was whether the prosecution had proved its case beyond reasonable doubt.
37. The Respondent’s case was that the prosecution evidence clearly established the occurrence of an attempted rape. PW2, an independent eyewitness, testified that she found a naked man kneeling between the complainant’s legs, holding his penis, while the complainant lay on a sofa without clothes on her lower body. PW2’s intervention interrupted the act. Medical evidence adduced by PW4 corroborated the use of force, showing bruises on the complainant’s lips and strangulation marks on her neck, supporting the inference that the attempted sexual act was non-consensual.
38. On the issue of identification, the Respondent acknowledged that the complainant did not testify due to mental incapacity and that the prosecution relied primarily on PW2 and circumstantial evidence. The Respondent conceded that PW2 had not known the assailant prior to the incident and that no identification parade was conducted. Furthermore, while a mobile phone recovered at the scene was alleged to belong to the Appellant, the Respondent admitted that the linkage was not conclusively proved, as the chief and other persons involved in tracing the phone were not called as witnesses and no subscription or call data records were produced.
39. Addressing the Appellant’s complaint on violation of the right to a fair trial under Article 50(2)(k) of the Constitution, the Respondent submitted that the mere failure to call the complainant did not, of itself, vitiate the trial. The complainant was an adult with intellectual disability, and although no formal application was made to declare her a vulnerable witness or to appoint an intermediary, the law does not mandate that a conviction to rest solely on a victim’s testimony. The Respondent placed reliance on the case of MM versus Republic [2004] eKLR to argue that omissions which do not occasion a failure of justice are curable.
40. In conclusion, the Respondent submitted that the trial court placed value on PW2’s evidence in linking the Appellant to the offence. While acknowledging that the manner in which identification was conducted was not error free and cannot be relied upon. The Respondent argued that it was nevertheless possible to link the assailant to the scene through other evidence, even in the absence of the victim’s testimony. The respondent conceded, however, that these lapses, weakened the prosecution’s case and ultimately supported the appeal.
Analysis and determination
41. This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R [1957] EA 336; Ruwalla v R [1957] EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR .
42. Upon careful review of the record of appeal and submissions by parties, I discern the following key issues for determination:
a. Whether the prosecution proved the offence of attempted rape to the required standard of proof beyond reasonable doubt.
b. Whether the evidence on record sufficiently identified the Appellant as the perpetrator of the offence.
c. Whether the failure to call the complainant as a witness and the manner in which her mental incapacity was addressed infringed the Appellant’s right to a fair trial
Whether the prosecution proved the offence of attempted rape to the required standard of proof beyond reasonable doubt;
43. Section 4 of the Sexual Offences Act, defines attempted rape as
“Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence 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.”
44. The High court in Abraham Otieno v Republic [2011] KEHC 2213 (KLR), elaborated on these ingredients, holding that : -
“For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about to rape the victim but was stopped in tracks and or in the nick of time. The intention to rape must be manifest. Such intention can be manifested for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but does not go the whole hog because of factus interveniens, that would be good evidence of attempted rape. Alternatively, if the culprit without expressing his intentions verbally gets hold of the victim, fondles her, removes her clothes including her pants and also undresses himself in preparation thereof but for one reason or another something happens which compels him stop, again that would be good evidence of attempted rape.”
45. For a conviction to lie, the prosecution must establish, beyond reasonable doubt, that the accused intentionally and unlawfully attempted to cause penetration of the complainant’s genital organs without consent. Actual penetration need not be proved, but there must be clear evidence of an overt act that is immediately and proximately connected to the intended offence.
46. In the present case, the prosecution relied primarily on the evidence of PW2. She stated that upon peeping through the window, she saw a man kneeling between the complainant’s legs, naked, holding his penis, while the complainant lay on a sofa without clothes on her lower body. PW2’s intervention by screaming interrupted the act.
47. This testimony was corroborated by the medical evidence produced by PW4, which revealed bruises on the complainant’s lips and strangulation marks on her neck, consistent with the use of force.
48. The evidence presented clearly demonstrated conduct that went beyond mere preparation and constituted a direct movement towards the commission of rape. The accused’s actions, being naked, positioning himself between the complainant’s legs, and holding his penis—manifested an unequivocal intention to penetrate. The intervention of PW2 was the only factor preventing completion of the act.
49. Accordingly, the Court finds that the prosecution proved both the actus reus and mens rea of attempted rape to the required standard of proof beyond reasonable doubt.
Whether the evidence on record sufficiently identified the Appellant as the perpetrator of the offence
50. Despite the fact of an attempted rape having been proved, criminal liability can only attach if the prosecution further establishes, beyond reasonable doubt, that it was the Appellant who committed the offence.
51. The evidence linking the Appellant to the offence was anchored on two strands: visual identification by PW2 the sole eye witness and circumstantial evidence relating to a mobile phone allegedly recovered at the scene. PW2 testified candidly that she did not know the assailant prior to the incident. The incident occurred in broad daylight; however, no identification parade was conducted following the Appellant’s arrest. Instead, PW2 purported to identified the Appellant in court, resulting to dock identification.
52. It is trite law that dock identification, particularly where a witness had no prior acquaintance with the accused and no identification parade was conducted, is generally unsafe unless supported by other cogent evidence. The Court of Appeal Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR) emphasize that;
“Dock identification is worthless the court should not rely on a dock identification unless this has been preceded by a properly conducted identification parade. A witness should be asked to give description of the accused and the prosecution should then arrange a fair identification parade.”
53. The investigative failure to conduct an identification parade in this case was therefore material and prejudicial. This court concurs with the Respondent’s concession that the identification evidence was not free from the possibility of error.
54. The prosecution further relied on a mobile phone allegedly recovered from the scene. It was contended that when number associated with the phone was dialled, it rang, and was linked to the Appellant. However, the evidentiary chain was incomplete. The area chief who allegedly provided the Appellant’s number was not called as a witness. The persons who made the calls were not called, no subscriber registration data or call data records were produced to link the line to the Appellant. PW5 admitted that he never saw the Appella
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