' (Being an appeal from the conviction and sentence of Hon. G. W. Kirugumi, (P.M.) in Kerugoya Magistrates Court Sexual Offence (SO) Case No. E016 of 2022 delivered on 21/2/2023 and 28/2/2023 respectively)
1. The appellant, Daniel Chomba Mureithi, was charged and convicted of the offence of attempted rape contrary to section 4 of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars of the offence were that the appellant on 5th October 2022 and 20th August 2022 at Kiaga, Kirinyaga Central, within Kirinyaga County, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of P. W. M. without her consent.
2. The prosecution called 3 witnesses in support of its case.
3. PW 1, P.W.M., was the complainant. She gave evidence that the appellant, whom she had known as a pastor, having seen him preach at a funeral, visited her home on the evening of 5th October 2022 at around 7.30 p.m. She was in her kitchen, which is separate from the main house. Surprised at his turning up in the kitchen, she asked him whether he was drunk.
4. He held her by the chest and slapped her. She bled from the nose. He went on slapping her and pulled her to the main house, pushed her to the wall, and told her he would rape and kill her. He pushed her to the ground, held her by the neck, and removed all her clothes as he continued beating her. He also undressed completely, remaining stark naked. He held her legs in a bid to engage in sexual intercourse with her as he wanted to insert his manhood into her genital organ. She tried to scream, but he held her by the neck. She crossed her legs and pushed him away. He fell over, and she managed to run to another room where she locked herself inside.
5. The appellant kicked the door to the room where she was, breaking it, but he fell. She ran into her bedroom. He broke the door too. She went into a room with a metallic door and locked herself inside. She then heard her sister, R.W.M., speaking from outside. The complainant got out and narrated to PW 2 her ordeal. They called their father, who came over and advised the complainant to report the incident to the police. They made the report the following day. PW 2 gave her company in the home for that night. The appellant left behind his turban, shoes, a pair of socks, a T-shirt, a jacket, and a pair of shorts.
6. The complainant produced in evidence the clothes she was wearing on the material day, being her black petticoat, brown and white checked skirt with dirt, pink striped blood-stained blouse. She said her panties was not recovered. She also produced the appellant’s clothes, which he had been wearing, but he left behind in her house. They were a dark blue, green-striped pair of shorts, a purple turban, a blood-stained white T-shirt, a navy-blue jacket, and a grey and green pair of socks. She also produced as exhibits several broken locks for doors that she said the appellant had broken to gain entry to the rooms where she was hiding.
7. In cross-examination, the complainant said that, besides seeing the appellant preaching at the funeral meeting, she also met him at meetings at the home of a lady to discuss the issue of starting a church congregation. She said she did not know how the appellant knew her home. On the material day, he passed through the rear gate. She said that they were not in any relationship and that he appeared drunk on the material day. When he asked him how he had gained entry and why he was drunk, he became angry, and that was when he slapped her.
8. The complainant further said that she went to the hospital and was treated, but she did not have a P3 form completed.
9. PW 2, R. W. M., is the complainant’s sister. She testified that she was coming from a nearby shop, going to her parents’ home nearby, when she was attracted to the complainant’s home by a commotion. She proceeded there and noticed the appellant escaping through the back door. The appellant jumped over the gate and into the shamba. She saw him by face as there was proper lighting around. She said he was half-naked, with only the trousers on and without shoes. She addressed him, asking what the matter was, but the appellant did not respond, and he escaped. She went into the house and found the complainant in the process of dressing, wearing her skirt while her other clothes were on the floor. There were also locks on the floor. The complainant appeared terrified and she was bleeding. Her house was in disarray. The complainant recounted to her what had happened.
10. PW 3, PC Nelly Nkanai was the arresting officer and also investigated the offence and had the appellant charged accordingly.
11. In his defence, the appellant gave sworn evidence as DW 1. He denied that he committed the offence. He called three witnesses to support his case.
12. He said he went to the complainant’s house at her invitation as they knew each other from doing church activities together. They would meet at a church member’s home at Njega’s where they would have prayers and the complainant would even wait for him there from 11.00 a.m. to 6. p.m. He said the complainant was the one who invited him to her home for them to have a prayer together. He had visited her home several times before. On the material day she was the one who opened the gate for him. They toured her farm together and neighbours saw them. The complainant wanted him to spend the night at her house, but he declined. When he wanted to leave, the complainant stood up and confronted him by holding him by his shirt and told him that he would not leave. She asked him to marry her. A struggle ensued between them but he managed to escape.
13. DW 2, Peter Murigi Kiarie, did not have evidence to assist the court in making an appropriate decision. He said that he was at a funeral at Njega’s at the home of the Gitaris, with PW 1, but he did not see the appellant there.
14. DW 3, Agnes Wanja Munuve said that on 5/10/2022, they were to have prayers. The complainant called the appellant on phone but she could not find him. The complainant went back to DW 1’s home the following day and DW 3 asked her to try and call the appellant again. The appellant was arrested that Sunday and charged in court. They had a discussion with PW 1 present and the complainant said she wanted to forgive him. She later said she would proceed with the case.
15. DW 4, Marion Wairimu Murigi. She said that the appellant was her pastor as she worships at his church. On 12th December 2022, the complainant called people, among them DW 2 at the home of DW 3 and said she had forgiven the appellant and wished to withdraw the case. However, some items had been damaged and her daughter had difficulties with withdrawing the case as she wanted money to for repairs.
16. After the trial, the accused person was found guilty of the principal charge of attempted rape. He was convicted and sentenced to serve fifteen years'' imprisonment.
17. The appellant was aggrieved by the decision of the trial court and in his petition of appeal dated March 2023 he sought to challenge the decision of the trial court. He has set out the following grounds of appeal, contending that the learned trial magistrate erred in law and in fact:
i. by convicting him on insufficient evidence.
ii. by failing to consider that the ingredients of the alleged attempted rape were not proved to the required threshold.
iii. by failing to consider that no sample was collected from the alleged blood-stained clothes for examination and determination as to whether it was for human or animal.
iv. failing to accord the appellant a chance to make available to the court the phone with recorded information regarding the ordeal and the desire of PW 1.
v. imposing a harsh and excessive sentence.
vi. failing to consider that the alleged exhibits were not dusted so as to prove that the appellant had touched them on the material day and time.
vii. by failing to consider that the investigations done were shoddy and unfounded and the case was not proved beyond a reasonable doubt.
viii. by failing to consider his defence and mitigating factors.
18. The appellant therefore prays that the appeal be allowed, the conviction be quashed and the sentence set aside and he be set at liberty.
19. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
20. The appellant merged some of the grounds of appeal and argued them in four batches. He merged grounds 1 and 2, then argued 3 alone, then merged grounds 4, 5, 6 and 7 then argued 8 alone.
21. He submits that the learned trial magistrate proceeded to convict him without evaluating the evidence on record. I have considered the submissions in the analysis that follows.
22. Learned counsel for the respondent on his part submits that the appellant went to the complainant’s house without invitation, assaulted her and was forcing himself onto her to have sexual intercourse with the complainant without her consent. That he only escaped, leaving some of his clothes and sandals behind when the complainant’s sister PW 2 spoke outside.
23. Learned counsel submits that the appellant’s defence that the complainant is the one who wanted him to forcefully engage in sexual intercourse with her was not cogent for various reasons. First, he conceded that he slapped her to free himself, yet said that the complainant then opened the gate for him to leave. That was unbelievable.
24. 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.”
25. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
26. Learned counsel for the respondent on his part submitted that the issues for determination are:
i. whether the prosecution''s evidence proved that the appellant committed the offence beyond a reasonable doubt.
ii. whether the sentence meted out upon the appellant was excessive in the circumstances.
27. I have examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the parties. The issue for determination is whether the learned trial magistrate was correct in her finding that the prosecution proved the case of attempted rape against the appellant beyond a reasonable doubt and thereby convicted the appellant.
28. The appellant submits that the trial court convicted and sentenced him on insufficient evidence without considering the ingredients of the offence, which were not proved beyond a reasonable doubt.
29. The offence of attempted rape is provided for under section 4 of the SOA as follows:
“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.”
30. From this provision, the elements of the offence of attempted rape are,
i. an attempt,
ii. unlawfully and intentionally,
iii. to commit an act which causes penetration with one’s genital organ.
31. Each of these elements must be proved by the prosecution beyond a reasonable doubt.
32. An attempt to commit an offence is not defined under the SOA, but the definition under section 388 of the Penal Code (Cap. 63) Laws of Kenya, which is a penal statute just as the SOA, is 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.”
33. It has long been recognized that the elements of attempt are two: One is the intent to commit the underlying offence. The other is taking some substantial step, beyond mere preparation, collaborative of the intent to commit the underlying offence. For instance, the 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.
34. The Court of Appeal in the case of Abdi Ali Bere v Republic (2015) eKLR 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”.
35. The case of Francis Mutuku Nzangi v Republic [2013] KECA 112 (KLR) also 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.”
36. 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.”
37. The evidence tendered by the prosecution must show that the act complained of went beyond preparation to possible commission of the offence, and the intention to commit the crime must likewise be proved.
38. The ingredients of the offence of attempted rape are explained in the case of Moses Kabue Karuoya v Republic [2016] KEHC 2729 (KLR) thus:
“… the key ingredients of the offence before me can be summarized as follows, namely, (a) Intend to commit the offence; … The second requirement is the accused must (b) begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve …. Lastly the accused must (c) do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence.”
39. In the present case, there is evidence conceded by the appellant that he was in the complainant’s house at the material time. There was a commotion between the appellant and the complainant with each alleging that the other wanted to engage in non-consensual sexual intercourse with him or her, regarding one requiring the other to engage in non-consensual sexual activity and in the process the appellant slapped the complainant, and he left the complainant’s home in a huff.
40. Each of them blames the other for having had the intention to engage in the non-consensual sexual activity. What is not disputed, however, is that, the sexual activity did not take place. It is the complainant’s case that her sister’s response to the commotion in the house must have been what caused the appellant to quickly take leave, thereby leaving his clothes and shoes behind. The appellant, on his part, testified that in fact, he had to slap the complainant, which action gave him the chance to leave. He said that he left through the gate after the complainant opened it for him.
41. It is common ground that on the material evening, the complainant and the appellant were in the complainant’s house and there was a commotion between them. Each of them has given a version of why the commotion arose.
42. The point for determination in this case is whose version of events between that of the appellant and the complainant is to be believed.
43. The complainant’s evidence that the appellant left in a huff after hearing her sister’s voice outside is supported by PW 2 who testified that she saw the appellant running away from the complainant’s house and he jumped over the gate to the shamba. PW 1 said that the appellant had undressed completely as he struggled with her. PW 2 said that when she saw the appellant he did not have on his shirt and no shoes. This evidence corroborates that of the complainant that the appellant left the house in a huff and that he had undressed in his bid to engage in sexual intercourse with her. It means that in his hurry to escape, he could not put on his shirt and shoes.
44. The complainant also said that the appellant was wearing a green hat and a turban on top. She said that he left his turban, shoes, socks, T-shirt, jacket and socks at her house. PW 2 said that as she entered the complainant’s house she saw clothes on the floor and the house was in disorder. She identified the shirt, T-shirt, jacket, turban socks, shoes which she saw on the floor. This is further indication that the appellant had undressed. It therefore discounts his evidence denying that he did not undress and that he left the house fully clothed.
45. The learned counsel for the respondent submitted that PW 3 visited the scene and collected the clothes from the house but that was not correct. PW 3 did not say so. She said different officers visited the scene the following day and collected the items. She was not among them. The items were only taken to her. However, the complainant’s evidence that the appellant’s clothes remained in her house as he escaped is supported by PW 2 who saw the appellant escaping without some of his clothes on and then found his clothes in the complainant’s house.
46. The appellant claims that the trial court failed to consider his plausible defence. That is not correct. I have considered the judgment of the trial court and I am satisfied that besides laying out the defence offered by the appellant, the trial court evaluated the same and found it implausible. She considered the state of the complainant and the appearance of the house after the incident as described by the complainant and PW 2 against the evidence of the appellant denying the commission of the offence and found that the appellant did not explain how his clothes remained in the complainant’s house. That finding was correct.
47. The complainant’s evidence is corroborated by the PW 2 in many material respects as pointed out above. At the same time, the evidence of the complainant and PW 2 discounts the version of events tendered by the appellant.
48. The question to be answered is whether the conduct of the appellant towards the complainant constituted an overt act sufficiently proximate to constitute an attempt to rape the complainant.
49. I agree with the learned counsel in his submissions that the complainant’s evidence that she had been injured, that there were blood stains on the appellant’s T-shirt recovered from the complainant’s house and that there were broken door locks on the floor is evidence of a struggle. The state of disarray in the complainant’s house indicated that the battle between the two extended beyond what the appellant contended was a slap of the complainant for attempting to detain him in her house.
50. The learned trial magistrate found that the complainant was a witness of truth, meaning that even in the absence of corroboration of her evidence, she was prepared to convict on her sole evidence under section 124 of the Evidence Act (Cap. 80) Laws of Kenya. I find no reason to fault the finding of the learned trial magistrate on that issue. I am equally satisfied that the complainant was a witness of truth.
51. I find that the appellant’s defence was incapable of discounting the strong evidence tendered by PW 1 and PW 2.
52. The appellant’s actions towards the complainant went beyond mere preparation to commit the offence of rape. He removed his clothes and those of the complainant. He held the complainant’s neck, pushed her to the ground, and held her legs in a bid to engage in sexual intercourse with the complainant. All these actions were a clear manifestation of his intention to engage in non-consensual sexual intercourse with the complainant.
53. In the present case, I am satisfied that the appellant’s conduct towards the complainant constituted an overt act that was not remote but was sufficiently proximate to constitute an attempt to rape the complainant. I find that all his actions taken together were proximate and geared towards causing penetration of the complainant’s genital organ with his genital organ. His acts were deliberately geared to achieve his intended goal of engaging in sexual intercourse with the complainant and, therefore, intentional. They were, however, without the consent of the complainant and were therefore unlawful. They were thwarted by the complainant’s fearless and spirited resistance and fight-back, which attracted PW 2 after which the appellant had no choice but to leave her alone and escape while half naked, leaving some of his clothes behind.
54. It is the complainant’s and PW 2’s evidence that the complainant stayed alone. She was alone at her home at the time. The appellant finding her alone at home must have taken advantage of the opportunity to harass her. According to Luka Kimaru, J. (as he then was), Simon Kandenge Ondego v Rebuplic [2006] KEHC 2777 (KLR) “in rape cases it can be said that the intention is formed when the offender finds himself in a situation where an opportunity presents itself to him, (rape in most cases being an opportunistic crime).” For the offender, this was a perfect opportunity to force himself upon the complainant. Thanks to her valiant spirit, it did not come to pass.
55. I have examined and re-evaluated the evidence and I am satisfied that the learned trial magistrate arrived at the correct finding that the prosecution proved the case of attempted rape contrary to section 4 of the SOA against the appellant beyond a reasonable doubt.
56. I am satisfied of the conviction of the appellant by the trial court was made on sound and cogent evidence and the same is affirmed.
57. On sentence, the appellant submits that the same was excessive and not proportional to the circumstances of the offence. Under section 4 of the SOA the minimum sentence is 5 years imprisonment while the maximum is life imprisonment. Learned counsel for the respondent submits that the term of 15 years imprisonment was commensurate to the circumstances under which the offence was committed. That the appellant was contemptuous of the complainant, unruly and uncontrollable.
58. I am aware that sentencing is at the discretion of the trial court. However, considering the totality of the circumstances of the offence, the fact that the appellant was a first offender and that the complainant had wanted to forgive him, I find that the sentence of 15 years’ imprisonment was excessive in the circumstances. I would find the minimum term of five years imprisonment to be sufficient for the appellant to learn his lesson. Consequently, I set aside the sentence of 15 years imprisonment and substitute it with a term of 5 years imprisonment. The appeal on sentence succeeds to that extent.
59. Right of appeal 14 days explained.
60. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Delivered, dated and signed on the Virtual Platform, Teams, this 2nd day of September 2025 in the presence of:
The appellant in person from Nyeri prison.
Komu h/b for Muriithi for the respondent.
Evans court assistant.
'
1. The appellant, Daniel Chomba Mureithi, was charged and convicted of the offence of attempted rape contrary to section 4 of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars of the offence were that the appellant on 5th October 2022 and 20th August 2022 at Kiaga, Kirinyaga Central, within Kirinyaga County, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of P. W. M. without her consent.
2. The prosecution called 3 witnesses in support of its case.
3. PW 1, P.W.M., was the complainant. She gave evidence that the appellant, whom she had known as a pastor, having seen him preach at a funeral, visited her home on the evening of 5th October 2022 at around 7.30 p.m. She was in her kitchen, which is separate from the main house. Surprised at his turning up in the kitchen, she asked him whether he was drunk.
4. He held her by the chest and slapped her. She bled from the nose. He went on slapping her and pulled her to the main house, pushed her to the wall, and told her he would rape and kill her. He pushed her to the ground, held her by the neck, and removed all her clothes as he continued beating her. He also undressed completely, remaining stark naked. He held her legs in a bid to engage in sexual intercourse with her as he wanted to insert his manhood into her genital organ. She tried to scream, but he held her by the neck. She crossed her legs and pushed him away. He fell over, and she managed to run to another room where she locked herself inside.
5. The appellant kicked the door to the room where she was, breaking it, but he fell. She ran into her bedroom. He broke the door too. She went into a room with a metallic door and locked herself inside. She then heard her sister, R.W.M., speaking from outside. The complainant got out and narrated to PW 2 her ordeal. They called their father, who came over and advised the complainant to report the incident to the police. They made the report the following day. PW 2 gave her company in the home for that night. The appellant left behind his turban, shoes, a pair of socks, a T-shirt, a jacket, and a pair of shorts.
6. The complainant produced in evidence the clothes she was wearing on the material day, being her black petticoat, brown and white checked skirt with dirt, pink striped blood-stained blouse. She said her panties was not recovered. She also produced the appellant’s clothes, which he had been wearing, but he left behind in her house. They were a dark blue, green-striped pair of shorts, a purple turban, a blood-stained white T-shirt, a navy-blue jacket, and a grey and green pair of socks. She also produced as exhibits several broken locks for doors that she said the appellant had broken to gain entry to the rooms where she was hiding.
7. In cross-examination, the complainant said that, besides seeing the appellant preaching at the funeral meeting, she also met him at meetings at the home of a lady to discuss the issue of starting a church congregation. She said she did not know how the appellant knew her home. On the material day, he passed through the rear gate. She said that they were not in any relationship and that he appeared drunk on the material day. When he asked him how he had gained entry and why he was drunk, he became angry, and that was when he slapped her.
8. The complainant further said that she went to the hospital and was treated, but she did not have a P3 form completed.
9. PW 2, R. W. M., is the complainant’s sister. She testified that she was coming from a nearby shop, going to her parents’ home nearby, when she was attracted to the complainant’s home by a commotion. She proceeded there and noticed the appellant escaping through the back door. The appellant jumped over the gate and into the shamba. She saw him by face as there was proper lighting around. She said he was half-naked, with only the trousers on and without shoes. She addressed him, asking what the matter was, but the appellant did not respond, and he escaped. She went into the house and found the complainant in the process of dressing, wearing her skirt while her other clothes were on the floor. There were also locks on the floor. The complainant appeared terrified and she was bleeding. Her house was in disarray. The complainant recounted to her what had happened.
10. PW 3, PC Nelly Nkanai was the arresting officer and also investigated the offence and had the appellant charged accordingly.
11. In his defence, the appellant gave sworn evidence as DW 1. He denied that he committed the offence. He called three witnesses to support his case.
12. He said he went to the complainant’s house at her invitation as they knew each other from doing church activities together. They would meet at a church member’s home at Njega’s where they would have prayers and the complainant would even wait for him there from 11.00 a.m. to 6. p.m. He said the complainant was the one who invited him to her home for them to have a prayer together. He had visited her home several times before. On the material day she was the one who opened the gate for him. They toured her farm together and neighbours saw them. The complainant wanted him to spend the night at her house, but he declined. When he wanted to leave, the complainant stood up and confronted him by holding him by his shirt and told him that he would not leave. She asked him to marry her. A struggle ensued between them but he managed to escape.
13. DW 2, Peter Murigi Kiarie, did not have evidence to assist the court in making an appropriate decision. He said that he was at a funeral at Njega’s at the home of the Gitaris, with PW 1, but he did not see the appellant there.
14. DW 3, Agnes Wanja Munuve said that on 5/10/2022, they were to have prayers. The complainant called the appellant on phone but she could not find him. The complainant went back to DW 1’s home the following day and DW 3 asked her to try and call the appellant again. The appellant was arrested that Sunday and charged in court. They had a discussion with PW 1 present and the complainant said she wanted to forgive him. She later said she would proceed with the case.
15. DW 4, Marion Wairimu Murigi. She said that the appellant was her pastor as she worships at his church. On 12th December 2022, the complainant called people, among them DW 2 at the home of DW 3 and said she had forgiven the appellant and wished to withdraw the case. However, some items had been damaged and her daughter had difficulties with withdrawing the case as she wanted money to for repairs.
16. After the trial, the accused person was found guilty of the principal charge of attempted rape. He was convicted and sentenced to serve fifteen years'' imprisonment.
17. The appellant was aggrieved by the decision of the trial court and in his petition of appeal dated March 2023 he sought to challenge the decision of the trial court. He has set out the following grounds of appeal, contending that the learned trial magistrate erred in law and in fact:
i. by convicting him on insufficient evidence.
ii. by failing to consider that the ingredients of the alleged attempted rape were not proved to the required threshold.
iii. by failing to consider that no sample was collected from the alleged blood-stained clothes for examination and determination as to whether it was for human or animal.
iv. failing to accord the appellant a chance to make available to the court the phone with recorded information regarding the ordeal and the desire of PW 1.
v. imposing a harsh and excessive sentence.
vi. failing to consider that the alleged exhibits were not dusted so as to prove that the appellant had touched them on the material day and time.
vii. by failing to consider that the investigations done were shoddy and unfounded and the case was not proved beyond a reasonable doubt.
viii. by failing to consider his defence and mitigating factors.
18. The appellant therefore prays that the appeal be allowed, the conviction be quashed and the sentence set aside and he be set at liberty.
19. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
20. The appellant merged some of the grounds of appeal and argued them in four batches. He merged grounds 1 and 2, then argued 3 alone, then merged grounds 4, 5, 6 and 7 then argued 8 alone.
21. He submits that the learned trial magistrate proceeded to convict him without evaluating the evidence on record. I have considered the submissions in the analysis that follows.
22. Learned counsel for the respondent on his part submits that the appellant went to the complainant’s house without invitation, assaulted her and was forcing himself onto her to have sexual intercourse with the complainant without her consent. That he only escaped, leaving some of his clothes and sandals behind when the complainant’s sister PW 2 spoke outside.
23. Learned counsel submits that the appellant’s defence that the complainant is the one who wanted him to forcefully engage in sexual intercourse with her was not cogent for various reasons. First, he conceded that he slapped her to free himself, yet said that the complainant then opened the gate for him to leave. That was unbelievable.
24. 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.”
25. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
26. Learned counsel for the respondent on his part submitted that the issues for determination are:
i. whether the prosecution''s evidence proved that the appellant committed the offence beyond a reasonable doubt.
ii. whether the sentence meted out upon the appellant was excessive in the circumstances.
27. I have examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the parties. The issue for determination is whether the learned trial magistrate was correct in her finding that the prosecution proved the case of attempted rape against the appellant beyond a reasonable doubt and thereby convicted the appellant.
28. The appellant submits that the trial court convicted and sentenced him on insufficient evidence without considering the ingredients of the offence, which were not proved beyond a reasonable doubt.
29. The offence of attempted rape is provided for under section 4 of the SOA as follows:
“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.”
30. From this provision, the elements of the offence of attempted rape are,
i. an attempt,
ii. unlawfully and intentionally,
iii. to commit an act which causes penetration with one’s genital organ.
31. Each of these elements must be proved by the prosecution beyond a reasonable doubt.
32. An attempt to commit an offence is not defined under the SOA, but the definition under section 388 of the Penal Code (Cap. 63) Laws of Kenya, which is a penal statute just as the SOA, is 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.”
33. It has long been recognized that the elements of attempt are two: One is the intent to commit the underlying offence. The other is taking some substantial step, beyond mere preparation, collaborative of the intent to commit the underlying offence. For instance, the 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.
34. The Court of Appeal in the case of Abdi Ali Bere v Republic (2015) eKLR 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”.
35. The case of Francis Mutuku Nzangi v Republic [2013] KECA 112 (KLR) also 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.”
36. 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.”
37. The evidence tendered by the prosecution must show that the act complained of went beyond preparation to possible commission of the offence, and the intention to commit the crime must likewise be proved.
38. The ingredients of the offence of attempted rape are explained in the case of Moses Kabue Karuoya v Republic [2016] KEHC 2729 (KLR) thus:
“… the key ingredients of the offence before me can be summarized as follows, namely, (a) Intend to commit the offence; … The second requirement is the accused must (b) begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve …. Lastly the accused must (c) do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence.”
39. In the present case, there is evidence conceded by the appellant that he was in the complainant’s house at the material time. There was a commotion between the appellant and the complainant with each alleging that the other wanted to engage in non-consensual sexual intercourse with him or her, regarding one requiring the other to engage in non-consensual sexual activity and in the process the appellant slapped the complainant, and he left the complainant’s home in a huff.
40. Each of them blames the other for having had the intention to engage in the non-consensual sexual activity. What is not disputed, however, is that, the sexual activity did not take place. It is the complainant’s case that her sister’s response to the commotion in the house must have been what caused the appellant to quickly take leave, thereby leaving his clothes and shoes behind. The appellant, on his part, testified that in fact, he had to slap the complainant, which action gave him the chance to leave. He said that he left through the gate after the complainant opened it for him.
41. It is common ground that on the material evening, the complainant and the appellant were in the complainant’s house and there was a commotion between them. Each of them has given a version of why the commotion arose.
42. The point for determination in this case is whose version of events between that of the appellant and the complainant is to be believed.
43. The complainant’s evidence that the appellant left in a huff after hearing her sister’s voice outside is supported by PW 2 who testified that she saw the appellant running away from the complainant’s house and he jumped over the gate to the shamba. PW 1 said that the appellant had undressed completely as he struggled with her. PW 2 said that when she saw the appellant he did not have on his shirt and no shoes. This evidence corroborates that of the complainant that the appellant left the house in a huff and that he had undressed in his bid to engage in sexual intercourse with her. It means that in his hurry to escape, he could not put on his shirt and shoes.
44. The complainant also said that the appellant was wearing a green hat and a turban on top. She said that he left his turban, shoes, socks, T-shirt, jacket and socks at her house. PW 2 said that as she entered the complainant’s house she saw clothes on the floor and the house was in disorder. She identified the shirt, T-shirt, jacket, turban socks, shoes which she saw on the floor. This is further indication that the appellant had undressed. It therefore discounts his evidence denying that he did not undress and that he left the house fully clothed.
45. The learned counsel for the respondent submitted that PW 3 visited the scene and collected the clothes from the house but that was not correct. PW 3 did not say so. She said different officers visited the scene the following day and collected the items. She was not among them. The items were only taken to her. However, the complainant’s evidence that the appellant’s clothes remained in her house as he escaped is supported by PW 2 who saw the appellant escaping without some of his clothes on and then found his clothes in the complainant’s house.
46. The appellant claims that the trial court failed to consider his plausible defence. That is not correct. I have considered the judgment of the trial court and I am satisfied that besides laying out the defence offered by the appellant, the trial court evaluated the same and found it implausible. She considered the state of the complainant and the appearance of the house after the incident as described by the complainant and PW 2 against the evidence of the appellant denying the commission of the offence and found that the appellant did not explain how his clothes remained in the complainant’s house. That finding was correct.
47. The complainant’s evidence is corroborated by the PW 2 in many material respects as pointed out above. At the same time, the evidence of the complainant and PW 2 discounts the version of events tendered by the appellant.
48. The question to be answered is whether the conduct of the appellant towards the complainant constituted an overt act sufficiently proximate to constitute an attempt to rape the complainant.
49. I agree with the learned counsel in his submissions that the complainant’s evidence that she had been injured, that there were blood stains on the appellant’s T-shirt recovered from the complainant’s house and that there were broken door locks on the floor is evidence of a struggle. The state of disarray in the complainant’s house indicated that the battle between the two extended beyond what the appellant contended was a slap of the complainant for attempting to detain him in her house.
50. The learned trial magistrate found that the complainant was a witness of truth, meaning that even in the absence of corroboration of her evidence, she was prepared to convict on her sole evidence under section 124 of the Evidence Act (Cap. 80) Laws of Kenya. I find no reason to fault the finding of the learned trial magistrate on that issue. I am equally satisfied that the complainant was a witness of truth.
51. I find that the appellant’s defence was incapable of discounting the strong evidence tendered by PW 1 and PW 2.
52. The appellant’s actions towards the complainant went beyond mere preparation to commit the offence of rape. He removed his clothes and those of the complainant. He held the complainant’s neck, pushed her to the ground, and held her legs in a bid to engage in sexual intercourse with the complainant. All these actions were a clear manifestation of his intention to engage in non-consensual sexual intercourse with the complainant.
53. In the present case, I am satisfied that the appellant’s conduct towards the complainant constituted an overt act that was not remote but was sufficiently proximate to constitute an attempt to rape the complainant. I find that all his actions taken together were proximate and geared towards causing penetration of the complainant’s genital organ with his genital organ. His acts were deliberately geared to achieve his intended goal of engaging in sexual intercourse with the complainant and, therefore, intentional. They were, however, without the consent of the complainant and were therefore unlawful. They were thwarted by the complainant’s fearless and spirited resistance and fight-back, which attracted PW 2 after which the appellant had no choice but to leave her alone and escape while half naked, leaving some of his clothes behind.
54. It is the complainant’s and PW 2’s evidence that the complainant stayed alone. She was alone at her home at the time. The appellant finding her alone at home must have taken advantage of the opportunity to harass her. According to Luka Kimaru, J. (as he then was), Simon Kandenge Ondego v Rebuplic [2006] KEHC 2777 (KLR) “in rape cases it can be said that the intention is formed when the offender finds himself in a situation where an opportunity presents itself to him, (rape in most cases being an opportunistic crime).” For the offender, this was a perfect opportunity to force himself upon the complainant. Thanks to her valiant spirit, it did not come to pass.
55. I have examined and re-evaluated the evidence and I am satisfied that the learned trial magistrate arrived at the correct finding that the prosecution proved the case of attempted rape contrary to section 4 of the SOA against the appellant beyond a reasonable doubt.
56. I am satisfied of the conviction of the appellant by the trial court was made on sound and cogent evidence and the same is affirmed.
57. On sentence, the appellant submits that the same was excessive and not proportional to the circumstances of the offence. Under section 4 of the SOA the minimum sentence is 5 years imprisonment while the maximum is life imprisonment. Learned counsel for the respondent submits that the term of 15 years imprisonment was commensurate to the circumstances under which the offence was committed. That the appellant was contemptuous of the complainant, unruly and uncontrollable.
58. I am aware that sentencing is at the discretion of the trial court. However, considering the totality of the circumstances of the offence, the fact that the appellant was a first offender and that the complainant had wanted to forgive him, I find that the sentence of 15 years’ imprisonment was excessive in the circumstances. I would find the minimum term of five years imprisonment to be sufficient for the appellant to learn his lesson. Consequently, I set aside the sentence of 15 years imprisonment and substitute it with a term of 5 years imprisonment. The appeal on sentence succeeds to that extent.
59. Right of appeal 14 days explained.
60. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Delivered, dated and signed on the Virtual Platform, Teams, this 2nd day of September 2025 in the presence of:
The appellant in person from Nyeri prison.
Komu h/b for Muriithi for the respondent.
Evans court assistant.
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