(Being an appeal from the conviction and sentence of Hon. W. F. Andayi, Chief Magistrate, in Machakos Chief Magistrate’s Court Sexual Offence Case No. E020 of 2020 delivered on 30th November 2023 and 7th December 2023 respectively)
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HENRY SAKWA OMUTO................................................APPELLANT
VERSUS
REPUBLIC...................................................................RESPONDENT
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JUDGMENT
A. Introduction
1. The Appellant, Henry Sakwa Omuto, was charged before the Chief Magistrate’s Court at Machakos with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006.
2. The particulars were that on diverse dates between 25th September 2020 and 15th October 2020 at Ivingu Village, Kasinga Sub-location, Mumbuni Location, Machakos Sub-county, within Machakos County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.M.K., a child aged 15 years.
3. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that, on the same dates and at the same place, the Appellant intentionally and unlawfully touched the complainant’s vagina with his penis.
4. The Appellant denied both charges. The prosecution called eight witnesses. Upon being placed on his defence, the Appellant gave evidence denying the allegations.
5. The learned trial magistrate found that penetration had not been proved. The court nevertheless convicted the Appellant of attempted defilement under section 9 of the Sexual Offences Act and sentenced him to ten years’ imprisonment.
6. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal.
B. Grounds of appeal
7. The Appellant’s grounds of appeal, reproduced verbatim, are:
i. Whether the prosecution proved the offence of attempted defilement beyond reasonable doubt as required by law.
ii. Whether the contradictions and inconsistencies in the prosecution evidence fatally weakened the prosecution case.
iii. Whether the Appellant’s right to a fair trial under Article 50 of the Constitution of Kenya, 2010 was violated.
iv. Whether the sentence imposed was harsh, excessive, and based on wrong principles.
8. In substance, the Appellant contends that the evidence did not disclose an overt act sufficiently proximate to penetration, that the evidence was materially inconsistent, that the trial proceeded without confirmation that he had been supplied with witness statements and that the sentence imposed was unlawful or excessive.
C. Parties’ submissions
9. The Appellant submitted that the trial court found that penetration had not been proved but nevertheless convicted him of attempted defilement when no evidence established the requisite intention and overt act.
10. He argued that the events of 15th October 2020 disclosed no attempt because the complainant stated that she and the Appellant did not have sexual intercourse on that date. He further contended that being found seated with the complainant on a bed did not, without more, constitute an act immediately connected to penetration.
11. The Appellant also relied on the age of the complainant’s pregnancy, the old hymenal tear, the absence of fresh genital injuries and the absence of DNA evidence linking him to the pregnancy.
12. On fair trial, the Appellant submitted that the record showed that on 2nd November 2020 he informed the court that he had not received witness statements. The court directed the prosecution to supply them. A further order for supply was made on 17th February 2022, but the record did not expressly confirm compliance.
13. The Respondent opposed the appeal against conviction. It submitted that the complainant’s age and the Appellant’s identity were proved. It further argued that the complainant gave direct evidence that the Appellant had sexual intercourse with her and that PW4 saw the Appellant on top of the complainant.
14. The Respondent, however, acknowledged that the trial court convicted the Appellant of an offence different from the principal and alternative charges. It urged this Court to substitute a conviction for the principal charge of defilement, contending that all its ingredients had been proved.
15. The Respondent further prayed that the Court impose the prescribed sentence for defilement.
D. Duty of the first appellate court
16. This is a first appeal. This Court is required to reconsider and re-evaluate the evidence and draw its own conclusions, while making allowance for the fact that it did not see or hear the witnesses testify.
17. The principle in Okeno v Republic [1972] EA 32 has repeatedly been affirmed by the Court of Appeal. It is not sufficient for a first appellate court merely to determine whether there was some evidence supporting the trial court’s findings. It must independently weigh the evidence and reach its own conclusions. See also Ngui v Republic [1983] KECA 20 (KLR) and Omundi v Republic [2023] KECA 1557 (KLR).
18. The Court must nevertheless accord appropriate weight to the trial court’s findings on the witnesses’ demeanour, unless those findings are contradicted by the record, rest on a misdirection or are plainly unsustainable.
E. Evidence before the trial court
19. The complainant, PW1, testified that she was 16 years old when she gave evidence. She stated that on 25th September 2020, while selling mandazi, the Appellant called her and purchased mandazi worth Kshs. 20. He told her that the money was in his house.
20. According to PW1, the Appellant pulled her into the house, removed her skirt and pants and inserted his penis into her vagina. She said that the Appellant did not threaten her and that she left thereafter without reporting the incident.
21. PW1 further testified that the Appellant subsequently called her and that she went to his house. She was clear that no sexual intercourse occurred on 15th October 2020, the date when community policing members found and arrested them.
22. In cross-examination, PW1 stated that she and the Appellant had been together for three months and maintained that they had had sexual intercourse.
23. PW2, the complainant’s mother, did not witness any sexual act. She was called to the police station and was informed that the complainant and the Appellant had been found in the Appellant’s house. She took the complainant for medical examination.
24. PW3 testified that he and other community policing members found the complainant and the Appellant inside the house, behind a curtain. He did not testify that he witnessed any sexual act.
25. PW4 gave a different account. He stated that he peeped through a gap and saw the Appellant on top of the complainant having sexual intercourse. He locked the door from outside. When the other community policing members arrived and the door was opened, the Appellant and the complainant were found seated on a bed.
26. PW5 testified that he found the complainant and the Appellant inside the house. He did not witness any sexual activity.
27. PW6 similarly testified that he found the two inside the house. He did not inquire into what they had been doing. According to him, the complainant stated that the Appellant was her boyfriend and that they had engaged in sexual activity since 25th September 2020.
28. PW7, Dr. Jacks Nthanga, produced the medical documents on behalf of Dr. Mutunga. The examination disclosed no bodily injury. The complainant’s external genitalia were normal for her age. Her hymen was broken, but the tear was not fresh. No spermatozoa were detected. A pregnancy test was positive, and an ultrasound estimated the pregnancy at between nine and twelve weeks.
29. The medical officer’s opinion was that sexual intercourse had taken place at some point. He recommended DNA testing after delivery to determine paternity. No DNA evidence was subsequently produced.
30. PW8 was the investigating officer who took over the matter after the original investigating officer was transferred. Her testimony largely repeated the information obtained from the complainant and other witnesses.
31. The Appellant’s defence was that the complainant had gone to his workplace to sell kangumu. He bought four pieces and went into the house to obtain money. According to him, an elderly man arrived, accused him of wrongdoing and ordered him and the complainant into the house. The man then locked them inside and called other people. He denied engaging in any sexual conduct with the complainant.
F. Issues for determination
32. Having examined the record, the respective submissions and the applicable law, the following issues arise:
a. Whether the Appellant’s fair-trial rights were violated by failure to supply witness statements;
b. Whether the conviction for attempted defilement was lawful and supported by the evidence;
c. Whether the evidence proved either the principal charge of defilement or the alternative charge of committing an indecent act with a child;
d. Whether the contradictions in the prosecution evidence were material; and
e. What orders should issue.
G. Analysis & Determination
i) Whether the Appellant’s fair-trial rights were violated by failure to supply witness statements
33. Article 50(2)(c) of the Constitution guarantees every accused person adequate time and facilities to prepare a defence. Article 50(2)(j) guarantees the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence.
34. Those rights are substantive. Disclosure is not a matter of prosecutorial courtesy. It enables an accused person to prepare for trial, test the prosecution evidence and conduct meaningful cross-examination.
35. The record shows that on 2nd November 2020 the Appellant informed the court that he had not been supplied with witness statements. The court directed that the statements be supplied. On 17th February 2022, the prosecution sought an adjournment and a witness statement, whereupon the court again ordered that a witness statement be supplied.
36. The record does not contain an express confirmation that all statements were supplied before the first witness testified on 17th September 2021. The trial court ought to have verified compliance with its order before commencing the hearing.
37. Nevertheless, an appellate court must determine the fair-trial question from the proceedings as a whole and the actual prejudice demonstrated. The record shows that the Appellant participated in the proceedings and cross-examined the prosecution witnesses. When a new magistrate took over, his rights under section 200(3) of the Criminal Procedure Code were explained. He elected to have the trial proceed from where it had reached and declined to recall the earlier witnesses.
38. The Appellant did not thereafter inform the trial court that the statements remained unavailable, seek time to prepare after disclosure, or apply to recall any witness on that basis. This does not excuse the trial court’s failure to record confirmation of compliance. However, on the material presently before this Court, non-disclosure throughout the trial cannot conclusively be inferred merely from the absence of an express record confirming supply.
39. I therefore do not find sufficient basis for declaring the entire trial a nullity solely on this ground. The failure to record compliance was an irregularity, but the Appellant has not demonstrated specific prejudice sufficient, by itself, to vitiate the trial.
ii) Whether the conviction for attempted defilement was lawful and supported by the evidence
40. Section 9(1) of the Sexual Offences Act provides:
“A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.”
41. An attempt requires both an intention to commit the complete offence and conduct going beyond mere preparation. The act relied upon must be sufficiently proximate to the contemplated offence.
42. In Isaack Ali Issack v Republic [2020] KECA 699 (KLR), the Court of Appeal affirmed that an attempted offence requires proof of the requisite intention and an overt act directed towards the commission of the intended offence.
43. In Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR), the Court of Appeal emphasised that the main ingredient of attempted defilement is an act which would cause penetration. Not every offensive or suspicious act involving a child amounts to attempted defilement.
44. The trial court did not clearly identify the act that constituted the alleged attempt. Its reasoning was that the Appellant and the complainant were found locked inside the house and that this “irresistibly” indicated that the Appellant intended to have sexual intercourse with her.
45. That inference was not safely available on the evidence. First, the complainant expressly stated that they were not having sexual intercourse on 15th October 2020. Secondly, PW3, PW5 and PW6 merely found the two inside the house. None of them testified to undressing, touching, sexual positioning or another act directed immediately towards penetration.
46. PW4’s evidence was that he saw the Appellant on top of the complainant having sexual intercourse. If accepted, that evidence purported to establish completed penetration, not merely an attempt. It was also directly inconsistent with the complainant’s evidence that no sexual intercourse occurred on that date.
47. PW4 did not describe the state of the parties’ clothing, any genital contact, movement, undressing or any other detail from which penetration or an attempt could objectively be inferred. When the house was opened, the parties were found seated on the bed.
48. Mere presence together in a house, even where the circumstances arouse suspicion, cannot substitute for proof of an overt act sufficiently proximate to penetration. Criminal liability cannot rest on moral suspicion or conjecture.
49. The Court of Appeal’s recent decision in Sibailo v Republic [2026] KECA 776 (KLR) illustrates the evidential distinction. There, the appellant had pulled an eight-year-old child into his house, removed her clothes, unzipped his trousers and lain on top of her. Those concrete acts established sexual conduct, although penetration had not been proved. The facts in the present case concerning 15th October 2020 are substantially weaker: the complainant denied sexual activity, and most witnesses merely found the two together.
50. I consequently find that the prosecution did not establish beyond reasonable doubt an overt act and specific intention constituting attempted defilement. The conviction under section 9 of the Sexual Offences Act was therefore unsupported by the evidence.
iii) Whether the evidence proved either the principal charge of defilement or the alternative charge of committing an indecent act with a child
51. The Appellant was charged with completed defilement and, in the alternative, committing an indecent act with a child. He was not expressly charged with attempted defilement.
52. Section 179 of the Criminal Procedure Code permits conviction for a minor and cognate offence where the evidence fails to prove all the particulars of the offence charged but proves facts reducing it to another offence.
53. In Francis Kahindi Mwaiha v Republic [2015] KECA 319 (KLR), the Court of Appeal held that substitution is permissible only where the substituted offence is minor and cognate to the offence charged. The accused must have had adequate notice of the essential factual allegations and must not suffer prejudice.
54. Attempted defilement may, depending on the particulars and evidence, constitute a lesser cognate offence to completed defilement. However, section 179 does not relieve the prosecution of proving every ingredient of the substituted offence. The trial court was obliged to identify the acts constituting the attempt and determine whether they proved the requisite intent and proximity.
55. The trial court did not carry out that analysis. It moved from its finding that penetration had not been proved to a conviction for attempted defilement, substantially because the Appellant and the complainant had been found together inside a house. That was a misdirection.
56. The problem was compounded by the form of the conviction. The judgment stated that the Appellant was guilty of attempted defilement “contrary to section 8(1) as read with section 9(1) and (2)” of the Sexual Offences Act. Attempted defilement is created by section 9, while section 8 creates the completed offence. Although an erroneous citation may sometimes be curable, the substantive ingredients must still be proved. Here, they were not.
Whether defilement was proved
57. The Respondent urged this Court to set aside the conviction for attempted defilement and substitute a conviction for completed defilement.
58. The powers of the High Court on appeal are set out in section 354 of the Criminal Procedure Code. In an appeal against conviction, the Court may reverse the finding and sentence, acquit or discharge the appellant, order a retrial, or alter the finding while maintaining, reducing or otherwise altering the sentence, subject to the law and the requirements of fairness.
59. Before substituting a conviction for a more serious offence, however, the Court must exercise particular caution. The Appellant alone appealed. The Respondent did not demonstrate that it filed an appeal or cross-appeal against the acquittal, in substance, on the charge of completed defilement. The Appellant was convicted of attempted defilement and sentenced to ten years. The Respondent now seeks a conviction carrying more severe penal consequences.
60. Quite apart from that procedural concern, the evidence did not prove penetration by the Appellant beyond reasonable doubt.
61. The complainant gave direct evidence that the Appellant inserted his penis into her vagina on 25th September 2020. The trial court, however, found that penetration had not been adequately proved and gave the Appellant the benefit of doubt.
62. Under the proviso to section 124 of the Evidence Act, a court may convict in a sexual offence case on the complainant’s evidence alone if it believes the complainant and records reasons for that belief. Corroboration is not an inflexible legal requirement.
63. Nevertheless, the complainant’s evidence must be evaluated against the whole record. The medical evidence disclosed an old hymenal tear and a pregnancy estimated at between nine and twelve weeks on 18th October 2020. That pregnancy necessarily predated the alleged incident of 25th September 2020.
64. No medical finding connected the Appellant to the alleged penetration. The medical officer expressly recommended DNA testing to determine paternity, but none was produced. The lack of DNA evidence would not by itself defeat an otherwise proved charge. In this case, however, the pregnancy and old hymenal tear could not corroborate the alleged incident because they materially predated it.
65. PW4 purported to have seen sexual intercourse on 15th October 2020. His evidence conflicted directly with PW1, who said that no sexual intercourse took place that day and that she and the Appellant had had sexual intercourse only once.
66. PW8 testified that the Appellant continued staying with the complainant and engaging in sexual intercourse with her until 15th October 2020. That account was also inconsistent with PW1’s testimony that sexual intercourse occurred only once.
67. Medical evidence may corroborate direct evidence of penetration, but it does not automatically identify the perpetrator or the date when penetration occurred. In Sibailo v Republic [2026] KECA 776 (KLR), the Court of Appeal held that medical evidence cannot, by itself, establish penetration in the absence of clear and cogent evidence connecting the accused to the act. It also reaffirmed, with reference to P.K.W. v Republic [2012] eKLR, that the absence of a hymen is not by itself conclusive proof of sexual intercourse or defilement by a particular accused person.
68. The medical evidence in this case proved that the complainant had previously engaged in sexual intercourse. It did not prove that the Appellant penetrated her during the dates alleged in the charge.
69. In those circumstances, the prosecution evidence did not establish completed defilement by the Appellant beyond reasonable doubt. I therefore decline the Respondent’s invitation to substitute a conviction for defilement.
Whether the alternative charge was proved
70. The alternative charge alleged that the Appellant intentionally and unlawfully touched the complainant’s vagina with his penis.
71. An “indecent act” is defined in section 2 of the Sexual Offences Act to include unlawful intentional contact between any part of a person’s body and the genital organs, breasts or buttocks of another person, excluding an act causing penetration.
72. The alternative charge therefore required proof of intentional sexual contact. It was not enough to prove that the Appellant and the complainant were inside the same house or seated on the same bed.
73. The evidence relating to 15th October 2020 did not establish genital or other proscribed bodily contact. PW1 denied that they had sexual intercourse that day. PW3, PW5 and PW6 did not witness any touching. PW4 alleged completed sexual intercourse but gave no particulars of genital contact and was contradicted by PW1.
74. Unlike Sibailo, where the appellant removed the child’s clothes, unzipped his trousers and lay on top of her, the evidence here did not establish an unlawful intentional contact of a sexual nature on 15th October 2020.
75. The alleged event of 25th September 2020 was presented as penetration rather than non-penetrative touching. Once reasonable doubt arose regarding that incident, there was no distinct and proved factual basis upon which the alternative charge could safely rest.
76. The alternative charge was therefore not proved beyond reasonable doubt.
iv) Whether the contradictions in the prosecution evidence were material
77. Not every discrepancy in a criminal trial is fatal. Human recollection differs, and minor inconsistencies that do not affect the ingredients of an offence ordinarily do not undermine a conviction.
78. The Court of Appeal in Tyson George Ngowa v Republic [2017] KECA 119 (KLR) affirmed that minor inconsistencies do not necessarily impair credibility unless they go to the root of the prosecution case.
79. The inconsistencies in this case were not all minor. They concerned:
a. Whether sexual intercourse occurred on 15th October 2020;
b. Whether the complainant and the Appellant had sexual intercourse only once or repeatedly;
c. Whether PW4 found the parties merely inside the house or actually having sexual intercourse;
d. Whether the medical findings related to the period alleged in the charge; and
e. Whether there was any act amounting to attempted penetration.
80. These discrepancies related directly to the actus reus of the offence and the date or dates when it allegedly occurred. They could not be dismissed as peripheral.
81. Suspicion arising from the Appellant being found in a house with a 15-year-old child was undoubtedly strong. But suspicion cannot replace proof. The prosecution bore the burden of establishing the charged or properly cognate offence beyond reasonable doubt. That burden never shifted to the Appellant.
Sentence
82. Having found that the conviction cannot stand, it is unnecessary to determine whether the ten-year sentence was harsh or whether section 389 of the Penal Code applied in preference to section 9(2) of the Sexual Offences Act.
83. For completeness, section 389 of the Penal Code applies where no other punishment is provided for the attempted offence. Section 9(2) of the Sexual Offences Act expressly provides a punishment for attempted defilement. The argument that section 389 automatically limits the penalty to seven years is therefore not sustainable on the statutory text.
84. The sentence must nevertheless be set aside because it rests on an unsafe conviction.
G. Determination
85. Upon independently reconsidering and evaluating the entire evidence, I find that:
a. Penetration by the Appellant was not proved beyond reasonable doubt;
b. No overt act sufficiently proximate to penetration was proved to sustain attempted defilement;
c. The intentional sexual contact alleged in the alternative charge was not proved beyond reasonable doubt;
d. The trial court’s inference of attempted defilement rested on suspicion rather than proof of the statutory ingredients; and
e. The conviction was consequently unsafe.
86. The appeal therefore succeeds.
87. The conviction of the Appellant for attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act is hereby quashed.
88. The sentence of ten years’ imprisonment imposed on 7th December 2023 is hereby set aside.
89. The Appellant, Henry Sakwa Omuto, shall be released forthwith unless otherwise lawfully held.
90. It is so ordered.
READ THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELLANT.
BEFORE HON JOYCE GANDANI, HIGH COURT JUDGE
MS MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANTSSS
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HENRY SAKWA OMUTO................................................APPELLANT
VERSUS
REPUBLIC...................................................................RESPONDENT
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JUDGMENT
A. Introduction
1. The Appellant, Henry Sakwa Omuto, was charged before the Chief Magistrate’s Court at Machakos with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006.
2. The particulars were that on diverse dates between 25th September 2020 and 15th October 2020 at Ivingu Village, Kasinga Sub-location, Mumbuni Location, Machakos Sub-county, within Machakos County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.M.K., a child aged 15 years.
3. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that, on the same dates and at the same place, the Appellant intentionally and unlawfully touched the complainant’s vagina with his penis.
4. The Appellant denied both charges. The prosecution called eight witnesses. Upon being placed on his defence, the Appellant gave evidence denying the allegations.
5. The learned trial magistrate found that penetration had not been proved. The court nevertheless convicted the Appellant of attempted defilement under section 9 of the Sexual Offences Act and sentenced him to ten years’ imprisonment.
6. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal.
B. Grounds of appeal
7. The Appellant’s grounds of appeal, reproduced verbatim, are:
i. Whether the prosecution proved the offence of attempted defilement beyond reasonable doubt as required by law.
ii. Whether the contradictions and inconsistencies in the prosecution evidence fatally weakened the prosecution case.
iii. Whether the Appellant’s right to a fair trial under Article 50 of the Constitution of Kenya, 2010 was violated.
iv. Whether the sentence imposed was harsh, excessive, and based on wrong principles.
8. In substance, the Appellant contends that the evidence did not disclose an overt act sufficiently proximate to penetration, that the evidence was materially inconsistent, that the trial proceeded without confirmation that he had been supplied with witness statements and that the sentence imposed was unlawful or excessive.
C. Parties’ submissions
9. The Appellant submitted that the trial court found that penetration had not been proved but nevertheless convicted him of attempted defilement when no evidence established the requisite intention and overt act.
10. He argued that the events of 15th October 2020 disclosed no attempt because the complainant stated that she and the Appellant did not have sexual intercourse on that date. He further contended that being found seated with the complainant on a bed did not, without more, constitute an act immediately connected to penetration.
11. The Appellant also relied on the age of the complainant’s pregnancy, the old hymenal tear, the absence of fresh genital injuries and the absence of DNA evidence linking him to the pregnancy.
12. On fair trial, the Appellant submitted that the record showed that on 2nd November 2020 he informed the court that he had not received witness statements. The court directed the prosecution to supply them. A further order for supply was made on 17th February 2022, but the record did not expressly confirm compliance.
13. The Respondent opposed the appeal against conviction. It submitted that the complainant’s age and the Appellant’s identity were proved. It further argued that the complainant gave direct evidence that the Appellant had sexual intercourse with her and that PW4 saw the Appellant on top of the complainant.
14. The Respondent, however, acknowledged that the trial court convicted the Appellant of an offence different from the principal and alternative charges. It urged this Court to substitute a conviction for the principal charge of defilement, contending that all its ingredients had been proved.
15. The Respondent further prayed that the Court impose the prescribed sentence for defilement.
D. Duty of the first appellate court
16. This is a first appeal. This Court is required to reconsider and re-evaluate the evidence and draw its own conclusions, while making allowance for the fact that it did not see or hear the witnesses testify.
17. The principle in Okeno v Republic [1972] EA 32 has repeatedly been affirmed by the Court of Appeal. It is not sufficient for a first appellate court merely to determine whether there was some evidence supporting the trial court’s findings. It must independently weigh the evidence and reach its own conclusions. See also Ngui v Republic [1983] KECA 20 (KLR) and Omundi v Republic [2023] KECA 1557 (KLR).
18. The Court must nevertheless accord appropriate weight to the trial court’s findings on the witnesses’ demeanour, unless those findings are contradicted by the record, rest on a misdirection or are plainly unsustainable.
E. Evidence before the trial court
19. The complainant, PW1, testified that she was 16 years old when she gave evidence. She stated that on 25th September 2020, while selling mandazi, the Appellant called her and purchased mandazi worth Kshs. 20. He told her that the money was in his house.
20. According to PW1, the Appellant pulled her into the house, removed her skirt and pants and inserted his penis into her vagina. She said that the Appellant did not threaten her and that she left thereafter without reporting the incident.
21. PW1 further testified that the Appellant subsequently called her and that she went to his house. She was clear that no sexual intercourse occurred on 15th October 2020, the date when community policing members found and arrested them.
22. In cross-examination, PW1 stated that she and the Appellant had been together for three months and maintained that they had had sexual intercourse.
23. PW2, the complainant’s mother, did not witness any sexual act. She was called to the police station and was informed that the complainant and the Appellant had been found in the Appellant’s house. She took the complainant for medical examination.
24. PW3 testified that he and other community policing members found the complainant and the Appellant inside the house, behind a curtain. He did not testify that he witnessed any sexual act.
25. PW4 gave a different account. He stated that he peeped through a gap and saw the Appellant on top of the complainant having sexual intercourse. He locked the door from outside. When the other community policing members arrived and the door was opened, the Appellant and the complainant were found seated on a bed.
26. PW5 testified that he found the complainant and the Appellant inside the house. He did not witness any sexual activity.
27. PW6 similarly testified that he found the two inside the house. He did not inquire into what they had been doing. According to him, the complainant stated that the Appellant was her boyfriend and that they had engaged in sexual activity since 25th September 2020.
28. PW7, Dr. Jacks Nthanga, produced the medical documents on behalf of Dr. Mutunga. The examination disclosed no bodily injury. The complainant’s external genitalia were normal for her age. Her hymen was broken, but the tear was not fresh. No spermatozoa were detected. A pregnancy test was positive, and an ultrasound estimated the pregnancy at between nine and twelve weeks.
29. The medical officer’s opinion was that sexual intercourse had taken place at some point. He recommended DNA testing after delivery to determine paternity. No DNA evidence was subsequently produced.
30. PW8 was the investigating officer who took over the matter after the original investigating officer was transferred. Her testimony largely repeated the information obtained from the complainant and other witnesses.
31. The Appellant’s defence was that the complainant had gone to his workplace to sell kangumu. He bought four pieces and went into the house to obtain money. According to him, an elderly man arrived, accused him of wrongdoing and ordered him and the complainant into the house. The man then locked them inside and called other people. He denied engaging in any sexual conduct with the complainant.
F. Issues for determination
32. Having examined the record, the respective submissions and the applicable law, the following issues arise:
a. Whether the Appellant’s fair-trial rights were violated by failure to supply witness statements;
b. Whether the conviction for attempted defilement was lawful and supported by the evidence;
c. Whether the evidence proved either the principal charge of defilement or the alternative charge of committing an indecent act with a child;
d. Whether the contradictions in the prosecution evidence were material; and
e. What orders should issue.
G. Analysis & Determination
i) Whether the Appellant’s fair-trial rights were violated by failure to supply witness statements
33. Article 50(2)(c) of the Constitution guarantees every accused person adequate time and facilities to prepare a defence. Article 50(2)(j) guarantees the right to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence.
34. Those rights are substantive. Disclosure is not a matter of prosecutorial courtesy. It enables an accused person to prepare for trial, test the prosecution evidence and conduct meaningful cross-examination.
35. The record shows that on 2nd November 2020 the Appellant informed the court that he had not been supplied with witness statements. The court directed that the statements be supplied. On 17th February 2022, the prosecution sought an adjournment and a witness statement, whereupon the court again ordered that a witness statement be supplied.
36. The record does not contain an express confirmation that all statements were supplied before the first witness testified on 17th September 2021. The trial court ought to have verified compliance with its order before commencing the hearing.
37. Nevertheless, an appellate court must determine the fair-trial question from the proceedings as a whole and the actual prejudice demonstrated. The record shows that the Appellant participated in the proceedings and cross-examined the prosecution witnesses. When a new magistrate took over, his rights under section 200(3) of the Criminal Procedure Code were explained. He elected to have the trial proceed from where it had reached and declined to recall the earlier witnesses.
38. The Appellant did not thereafter inform the trial court that the statements remained unavailable, seek time to prepare after disclosure, or apply to recall any witness on that basis. This does not excuse the trial court’s failure to record confirmation of compliance. However, on the material presently before this Court, non-disclosure throughout the trial cannot conclusively be inferred merely from the absence of an express record confirming supply.
39. I therefore do not find sufficient basis for declaring the entire trial a nullity solely on this ground. The failure to record compliance was an irregularity, but the Appellant has not demonstrated specific prejudice sufficient, by itself, to vitiate the trial.
ii) Whether the conviction for attempted defilement was lawful and supported by the evidence
40. Section 9(1) of the Sexual Offences Act provides:
“A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.”
41. An attempt requires both an intention to commit the complete offence and conduct going beyond mere preparation. The act relied upon must be sufficiently proximate to the contemplated offence.
42. In Isaack Ali Issack v Republic [2020] KECA 699 (KLR), the Court of Appeal affirmed that an attempted offence requires proof of the requisite intention and an overt act directed towards the commission of the intended offence.
43. In Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR), the Court of Appeal emphasised that the main ingredient of attempted defilement is an act which would cause penetration. Not every offensive or suspicious act involving a child amounts to attempted defilement.
44. The trial court did not clearly identify the act that constituted the alleged attempt. Its reasoning was that the Appellant and the complainant were found locked inside the house and that this “irresistibly” indicated that the Appellant intended to have sexual intercourse with her.
45. That inference was not safely available on the evidence. First, the complainant expressly stated that they were not having sexual intercourse on 15th October 2020. Secondly, PW3, PW5 and PW6 merely found the two inside the house. None of them testified to undressing, touching, sexual positioning or another act directed immediately towards penetration.
46. PW4’s evidence was that he saw the Appellant on top of the complainant having sexual intercourse. If accepted, that evidence purported to establish completed penetration, not merely an attempt. It was also directly inconsistent with the complainant’s evidence that no sexual intercourse occurred on that date.
47. PW4 did not describe the state of the parties’ clothing, any genital contact, movement, undressing or any other detail from which penetration or an attempt could objectively be inferred. When the house was opened, the parties were found seated on the bed.
48. Mere presence together in a house, even where the circumstances arouse suspicion, cannot substitute for proof of an overt act sufficiently proximate to penetration. Criminal liability cannot rest on moral suspicion or conjecture.
49. The Court of Appeal’s recent decision in Sibailo v Republic [2026] KECA 776 (KLR) illustrates the evidential distinction. There, the appellant had pulled an eight-year-old child into his house, removed her clothes, unzipped his trousers and lain on top of her. Those concrete acts established sexual conduct, although penetration had not been proved. The facts in the present case concerning 15th October 2020 are substantially weaker: the complainant denied sexual activity, and most witnesses merely found the two together.
50. I consequently find that the prosecution did not establish beyond reasonable doubt an overt act and specific intention constituting attempted defilement. The conviction under section 9 of the Sexual Offences Act was therefore unsupported by the evidence.
iii) Whether the evidence proved either the principal charge of defilement or the alternative charge of committing an indecent act with a child
51. The Appellant was charged with completed defilement and, in the alternative, committing an indecent act with a child. He was not expressly charged with attempted defilement.
52. Section 179 of the Criminal Procedure Code permits conviction for a minor and cognate offence where the evidence fails to prove all the particulars of the offence charged but proves facts reducing it to another offence.
53. In Francis Kahindi Mwaiha v Republic [2015] KECA 319 (KLR), the Court of Appeal held that substitution is permissible only where the substituted offence is minor and cognate to the offence charged. The accused must have had adequate notice of the essential factual allegations and must not suffer prejudice.
54. Attempted defilement may, depending on the particulars and evidence, constitute a lesser cognate offence to completed defilement. However, section 179 does not relieve the prosecution of proving every ingredient of the substituted offence. The trial court was obliged to identify the acts constituting the attempt and determine whether they proved the requisite intent and proximity.
55. The trial court did not carry out that analysis. It moved from its finding that penetration had not been proved to a conviction for attempted defilement, substantially because the Appellant and the complainant had been found together inside a house. That was a misdirection.
56. The problem was compounded by the form of the conviction. The judgment stated that the Appellant was guilty of attempted defilement “contrary to section 8(1) as read with section 9(1) and (2)” of the Sexual Offences Act. Attempted defilement is created by section 9, while section 8 creates the completed offence. Although an erroneous citation may sometimes be curable, the substantive ingredients must still be proved. Here, they were not.
Whether defilement was proved
57. The Respondent urged this Court to set aside the conviction for attempted defilement and substitute a conviction for completed defilement.
58. The powers of the High Court on appeal are set out in section 354 of the Criminal Procedure Code. In an appeal against conviction, the Court may reverse the finding and sentence, acquit or discharge the appellant, order a retrial, or alter the finding while maintaining, reducing or otherwise altering the sentence, subject to the law and the requirements of fairness.
59. Before substituting a conviction for a more serious offence, however, the Court must exercise particular caution. The Appellant alone appealed. The Respondent did not demonstrate that it filed an appeal or cross-appeal against the acquittal, in substance, on the charge of completed defilement. The Appellant was convicted of attempted defilement and sentenced to ten years. The Respondent now seeks a conviction carrying more severe penal consequences.
60. Quite apart from that procedural concern, the evidence did not prove penetration by the Appellant beyond reasonable doubt.
61. The complainant gave direct evidence that the Appellant inserted his penis into her vagina on 25th September 2020. The trial court, however, found that penetration had not been adequately proved and gave the Appellant the benefit of doubt.
62. Under the proviso to section 124 of the Evidence Act, a court may convict in a sexual offence case on the complainant’s evidence alone if it believes the complainant and records reasons for that belief. Corroboration is not an inflexible legal requirement.
63. Nevertheless, the complainant’s evidence must be evaluated against the whole record. The medical evidence disclosed an old hymenal tear and a pregnancy estimated at between nine and twelve weeks on 18th October 2020. That pregnancy necessarily predated the alleged incident of 25th September 2020.
64. No medical finding connected the Appellant to the alleged penetration. The medical officer expressly recommended DNA testing to determine paternity, but none was produced. The lack of DNA evidence would not by itself defeat an otherwise proved charge. In this case, however, the pregnancy and old hymenal tear could not corroborate the alleged incident because they materially predated it.
65. PW4 purported to have seen sexual intercourse on 15th October 2020. His evidence conflicted directly with PW1, who said that no sexual intercourse took place that day and that she and the Appellant had had sexual intercourse only once.
66. PW8 testified that the Appellant continued staying with the complainant and engaging in sexual intercourse with her until 15th October 2020. That account was also inconsistent with PW1’s testimony that sexual intercourse occurred only once.
67. Medical evidence may corroborate direct evidence of penetration, but it does not automatically identify the perpetrator or the date when penetration occurred. In Sibailo v Republic [2026] KECA 776 (KLR), the Court of Appeal held that medical evidence cannot, by itself, establish penetration in the absence of clear and cogent evidence connecting the accused to the act. It also reaffirmed, with reference to P.K.W. v Republic [2012] eKLR, that the absence of a hymen is not by itself conclusive proof of sexual intercourse or defilement by a particular accused person.
68. The medical evidence in this case proved that the complainant had previously engaged in sexual intercourse. It did not prove that the Appellant penetrated her during the dates alleged in the charge.
69. In those circumstances, the prosecution evidence did not establish completed defilement by the Appellant beyond reasonable doubt. I therefore decline the Respondent’s invitation to substitute a conviction for defilement.
Whether the alternative charge was proved
70. The alternative charge alleged that the Appellant intentionally and unlawfully touched the complainant’s vagina with his penis.
71. An “indecent act” is defined in section 2 of the Sexual Offences Act to include unlawful intentional contact between any part of a person’s body and the genital organs, breasts or buttocks of another person, excluding an act causing penetration.
72. The alternative charge therefore required proof of intentional sexual contact. It was not enough to prove that the Appellant and the complainant were inside the same house or seated on the same bed.
73. The evidence relating to 15th October 2020 did not establish genital or other proscribed bodily contact. PW1 denied that they had sexual intercourse that day. PW3, PW5 and PW6 did not witness any touching. PW4 alleged completed sexual intercourse but gave no particulars of genital contact and was contradicted by PW1.
74. Unlike Sibailo, where the appellant removed the child’s clothes, unzipped his trousers and lay on top of her, the evidence here did not establish an unlawful intentional contact of a sexual nature on 15th October 2020.
75. The alleged event of 25th September 2020 was presented as penetration rather than non-penetrative touching. Once reasonable doubt arose regarding that incident, there was no distinct and proved factual basis upon which the alternative charge could safely rest.
76. The alternative charge was therefore not proved beyond reasonable doubt.
iv) Whether the contradictions in the prosecution evidence were material
77. Not every discrepancy in a criminal trial is fatal. Human recollection differs, and minor inconsistencies that do not affect the ingredients of an offence ordinarily do not undermine a conviction.
78. The Court of Appeal in Tyson George Ngowa v Republic [2017] KECA 119 (KLR) affirmed that minor inconsistencies do not necessarily impair credibility unless they go to the root of the prosecution case.
79. The inconsistencies in this case were not all minor. They concerned:
a. Whether sexual intercourse occurred on 15th October 2020;
b. Whether the complainant and the Appellant had sexual intercourse only once or repeatedly;
c. Whether PW4 found the parties merely inside the house or actually having sexual intercourse;
d. Whether the medical findings related to the period alleged in the charge; and
e. Whether there was any act amounting to attempted penetration.
80. These discrepancies related directly to the actus reus of the offence and the date or dates when it allegedly occurred. They could not be dismissed as peripheral.
81. Suspicion arising from the Appellant being found in a house with a 15-year-old child was undoubtedly strong. But suspicion cannot replace proof. The prosecution bore the burden of establishing the charged or properly cognate offence beyond reasonable doubt. That burden never shifted to the Appellant.
Sentence
82. Having found that the conviction cannot stand, it is unnecessary to determine whether the ten-year sentence was harsh or whether section 389 of the Penal Code applied in preference to section 9(2) of the Sexual Offences Act.
83. For completeness, section 389 of the Penal Code applies where no other punishment is provided for the attempted offence. Section 9(2) of the Sexual Offences Act expressly provides a punishment for attempted defilement. The argument that section 389 automatically limits the penalty to seven years is therefore not sustainable on the statutory text.
84. The sentence must nevertheless be set aside because it rests on an unsafe conviction.
G. Determination
85. Upon independently reconsidering and evaluating the entire evidence, I find that:
a. Penetration by the Appellant was not proved beyond reasonable doubt;
b. No overt act sufficiently proximate to penetration was proved to sustain attempted defilement;
c. The intentional sexual contact alleged in the alternative charge was not proved beyond reasonable doubt;
d. The trial court’s inference of attempted defilement rested on suspicion rather than proof of the statutory ingredients; and
e. The conviction was consequently unsafe.
86. The appeal therefore succeeds.
87. The conviction of the Appellant for attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act is hereby quashed.
88. The sentence of ten years’ imprisonment imposed on 7th December 2023 is hereby set aside.
89. The Appellant, Henry Sakwa Omuto, shall be released forthwith unless otherwise lawfully held.
90. It is so ordered.
READ THIS 8TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELLANT.
BEFORE HON JOYCE GANDANI, HIGH COURT JUDGE
MS MACHUMA, PROSECUTOR
DIANA, COURT ASSISTANTSSS