REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E017 OF 2021
JOE KINGFORD MACHARIA……………………APPELLANT
VERSUS
REPUBLIC ………………………………………RESPONDENT
(Being an appeal from the conviction and sentence of Hon. E.O. Wambo P.M. in Kerugoya Magistrates Court Sexual Offence (SO) Case No. 20 of 2017 decided on 10/10/2021 and 3/11/2021 respectively)
J U D G M E N T
1. The appellant, Joe Kingford Macharia 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 22/1/2017 at Kerugoya Roswam hotel within Kirinyaga County, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of D.W.M. without her consent.
2. In the alternative, he was charged with committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that at the same place and time as in the principal charge he intentionally and unlawfully touched the breasts of D.W.M. with his hands against her will.
3. The prosecution called 6 witnesses in support of its case. PW 1, D.W.M. was the complainant. She gave evidence that the appellant attempted to rape her in a room at Roswam hotel on the night/early morning hours of 22/1/2017. She put up a fight as she shouted and thwarted his efforts. PW 2, Lucy Wangeci Wamutira testified to have been attracted by screams from the complainant’s room on the material night at around 4.00 a.m. and that when she proceeded there, she found the complainant in distress with her room in a mess. PW 3, Peter Njoroge Kagure gave evidence that he witnessed the incident by peeping through the window of the room in which the incident was taking place. PW 4, Hezron Macharia Maina is a clinical officer. He gave medical attention to the complainant and completed her P3 form and PRC forms on 25/1/2017. PW 5, Andrew Mwaniki Kinyua was a manager at Roswam hotel. PW 6, IP Mercy Kaleche was the investigating officer in the case.
4. The prosecution’s case from the evidence of these witnesses was that the appellant together with the complainant, PW 1, PW 2 and PW 3 were fairly well known to one another. They belonged to a group of people campaigning for one Wambui Ngirichi the Kirinyaga Women representative in Parliament. After they were done for the day’s campaign, the group proceeded to Roswam hotel to spend the night there. Some of them, among them the complainant, PW 2 and the appellant had drinks before they retired to bed.
5. At some point in the course if the night, the complainant’s roommate Lucy, PW 2 realized that their key was missing. She was allocated another room but with a single bed and so they could not share with the complainant. The appellant offered to surrender his room H9 to her and said he would spend elsewhere. At 3.40 a.m. the appellant and one Jean took the complainant to her room. The appellant and Jen remained outside the room talking then Jean left but the appellant went back to the room and closed the door.
6. The complainant asked him to open the door and leave but he advanced towards her and undressed, remaining with his boxers. He went on top of the complainant and the complainant tried to shout telling him in Kiswahili to leave her alone. She struggled with him and the appellant hit her telling her to shut up and stop disturbing him. He opened her brasserie and moved to the trousers known as tights (Exh. 1) and tried to pull them down. The complainant reached out to some utensils and picked a plate with her right hand and threw at the appellant. She was then able to move from her bed and got hold of some glasses and also hulled them at him. The appellant continued struggling with her and telling her to shut up.
7. The complainant noticed someone trying to listen and peep through the window and reached to the curtain and pulled it down. The appellant whom she said was stronger than him managed to pull her back to the bed and continued trying to undress her. He managed to pull off her tights/trousers and while using his right hand, he removed her tampons by pulling at the string as she was in her menses. Realizing she was naked, the complainant said she put up a big struggle as she tried to scratch him and shout for help. This attracted other people’s attention and people gathered outside the room. According to the complainant, the appellant realized it would be a problem. He got up, picked his trousers and cowboy hat, opened the door and as he left, PW 3 whom the complainant knew as Sharrin asked him what the problem was and the appellant answered that the complainant was the one being difficult. He then left.
8. The complainant said that her trousers was torn and the appellant left her naked, only with her campaign T-shirt on. She said she sustained injuries on her front teeth, both arms and right leg.
9. She said that Lucy, PW 2 called her brother Kennedy Kamau who came and they went to Kerugoya police station and made a report. They then proceeded to Kerugoya General hospital but due to a doctor’s strike, she was not attended to. They proceeded to Mt. Kenya hospital where she received medical attention. She went to Kerugoya hospital on 25/1/2017 and she received medical examination including laboratory tests. Her P3 and PRC forms were completed there.
10. The complainant said that she had taken whiskey but she was not intoxicated to a point of not appreciating her environment. She also said that she did not lead the appellant to the incident.
11. PW 2 said that indeed she was to share a room with the complainant. She had the key for their room but misplaced it. She was offered a different room where she went alone. She was woken up by screams of agony at around 4.00 a.m. and she called a friend called Loise who told her the screams were from room H9. PW 2 went there and found Loise and the complainant in room H9 which was open. PW 2 said there was nobody outside the room. The complainant was crying saying Joe could not just do that to her. That he wanted to rape her. Her lips were bleeding and her teeth were loose. The room was in a mess. Cutlery were broken and, on the floor, the beddings were down. There was a tampon on the bed. The complainant was half naked, with only her T-shirt on. Her tights were on the bedding and the trousers on the floor.
12. PW 2 called the complainant’s brother who came over and they escorted her to the police station and also to hospital.
13. PW 3 said his room was opposite H9 where the incident allegedly occurred. At around 4.00 a.m. she heard a female voice saying “wacha kufunga mlango. Joe wachana na mimi.” He got out and went to the door of that room and tried to open it but it was locked from inside. He could hear a struggle in the room with glasses breaking. All of a sudden, the curtains were pulled. The lights in the room were off but there were lights on the pathway so he was able to see the events inside the room.
14. PW 3 looked inside the room and saw the appellant dressed only in his boxers slapping the complainant and pushing her to the bed as they struggled. They were on the bed. The complainant had blood on her mouth and she was trying to escape. She saw him and called out “nisaidie.” The appellant also saw him and took his trousers from the bed and wore it. He took his hat and grabbed something else which PW 3 did not immediately make out what it was. He opened the door and as he stepped out, PW 3 asked him addressing him by name, “ni nini mbaya Joe?” The appellant answered, “huyu msichana ni sumbua.” PW 3 asked him, “mbona unamchapa?” and the appellant left.
15. PW 3 stood at the door-step and saw the complainant was still crying and naked downwards, only with her T-shirt on. He tried talking to her but she appeared scared of him. He left and went back to his room.
16. Later that morning the complainant and her brother went and asked him to accompany them to the police to make a report and he did. He also accompanied them to hospital.
17. The court asked PW 3 if he had a nickname and he said Sharrin.
18. PW 4 examined the complainant at Kerugoya County hospital and completed her P3 form and PRC form. There was nothing evidentially significant found upon examination of her genitalia. Examination of her outer system showed that she had tenderness on left cheek; small laceration 0.05 cm long on the inner aspect of the upper lip (the typed proceedings indicate limb, which is not correct as per the P3 form). She had a scratch on the right upper back, multiple bruises on the right forearm and upper arm, bruises on the left upper arm and left forearm and a bruise on the left calf.
19. The appellant gave sworn evidence in defence and denied that he committed the offence. He said that on 22/1/2017 he was at Roswam hotel hall where he was taking late night dinner. They had held a political event at Sifa Gardens and he was chairing the meeting as the secretary general of Jubilee party. The aspirant Wangui Ngirichi joined them for the meeting. He differed with her politically and left her camp that evening and he joined governor Waiguru’s camp who were not on good terms with Ngirichi. He left for his home at around 8.00 p.m. He was not among the people who were to sleep at the hotel. He said the complainant is niece of Ngirichi. He said he never interacted with the complainant and only came to know her when he was arrested in October 2017.
20. After the trial, the accused person was found guilty of the principal charge of attempted rape and he was convicted and sentenced to serve 5 years imprisonment.
21. The appellant was aggrieved by the decision of the trial court and in his petition of appeal dated 16/11/2021 has set out the following grounds of appeal contending that the learned trial magistrate erred in law and in fact:
i. and misdirected himself by failing to consider and determine whether the accused had been properly identified.
ii. by failing to find that the ingredients of attempted rape ahd not been proved beyond a reasonable doubt.
iii. for failing to consider that the particulars of the offence as set out in the charge sheet were not proved.
iv. when he failed to consider the defence of the respondent (sic) and the evidence of PW 5 in his analysis and thereby misdirected himself.
v. when he ignored the contradictions prevalent in the prosecution evidence thereby misdirecting himself.
vi. the sixth ground is not clear
22. The appellant therefore prays that the appeal be allowed, the judgment of the trial court be quashed and the sentence set aside and be substituted with an acquittal.
23. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
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 set out in his submissions the issues for determination as:
i. whether there were material contradictions and inconsistencies in the prosecution evidence.
ii. whether the evidence of PW 5 exculpates the appellant.
iii. whether the prosecution proved its case beyond a reasonable doubt.
27. Learned counsel for the respondent on his part submitted that the issues for determination are:
i. whether the respondents proved their case beyond a reasonable doubt.
ii. whether the applicant was properly convicted.
28. The submission by learned counsel was simple, that the learned trial magistrate did not err in convicting the appellant.
29. I have examined and re-evaluated the evidence tendered before the trial court as well as the submissions by learned counsels. The issue for determination is whether the learned trial magistrate was correct in his finding that the prosecution proved the case of attempted rape against the appellant beyond a reasonable doubt and thereby convicting the appellant.
30. Learned counsel for the appellant submitted that there were contradictions regarding the date of the offence. He points out that whereas the particulars of the charge indicated that the offence took place on 22/1/2017 which was the same date the complainant testified to, saying that it was on the morning of 22/1/2017 at around 4.00 a.m., PW 3 testified of a meeting at the hotel on 24/1/2017, the appellant and the hotel manager, PW 5 testified that the appellant addressed a dinner meeting at the hotel on the evening of 22/1/2017 and the booking list produced by PW 5 showed that PW 1, the complainant checked into the hotel on the evening of 22/1/2017. Learned counsel submits that as a result of these contradictions, it is improbable that the offence could have been committed on the morning of 22/1/2017, PW 1 having checked in later that evening.
31. The submissions by learned counsel for the respondent do not address the issue of contradictions in the evidence pointed out by learned counsel for the appellant.
32. At the hearing before the trial court, the issue of contradictions in the evidence of the prosecutions witnesses generally or even on the date of the commission of the offence was not raised. The trial court was therefore not called upon to address that issue. All the same, the trial court in evaluating the evidence would need to look out for any contradictions in the evidence of the witnesses and see whether they are material or not. However, where there are none, the trial court need not embark on a fishing expedition.
33. This being a first appeal, I have to evaluate the entire evidence to see whether there were in fact the contradictions as pointed out by learned counsel for the appellant and if they are, whether they are material or not.
34. I have looked at the trial court record. The typed proceedings indicate the evidence of PW 3 stating the date as 24/1/2017. However, a closer look at the handwritten proceedings shows that the learned magistrate wrote a 1 then changed it to 2 or vise versa without crossing the earlier number or countersigning the change. This is quite understandable given that there is evidence by PW 1 and PW 2 that the meeting by the campaign group begun on 21st and they spent the night at Roswam to the following day, the 22nd. Secondly, besides the evidence of PW 3, the evidence of PW 1 and PW 2 is clear that the alleged incident took place on the morning of 22/1/2017 and not any other date. Thirdly, as stated above, if the issue of the discrepancy on the date was a material contradiction the defence would have taken it up in cross-examination or even the prosecution in re-examination. That was not done.
35. The booking list (Exh. 8) was never put to the prosecution witnesses PW 1, PW 2 and PW 3 for them to explain the discrepancy given their evidence that the incident occurred on the morning of 22/1/2017.
36. Finally, assuming that there was any contradiction as submitted, which I find there was not, section 214(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) provides that variance between a charge and the evidence adduced with respect to the time the alleged offence was committed is not material as follows:
Section 214
(1) …
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
37. Therefore, the issue of the inconsistencies on the dates the alleged incident took place in the evidence of the prosecution witnesses and the charge sheet is not material as to vitiate the conviction.
38. Learned counsel also testified on contradictions regarding the scene of crime. That PW 1, PW 2 and PW 3 testified that the alleged offence took place in room H9 whereas the evidence of the manager PW 5 showed that PW 1 was booked into room H6 and the investigating officer did not confirm in which room PW 1 slept.
39. PW 1 and PW 2 explained that indeed the two of them had been booked to spend the night together in room H6 as appears on the booking list (Exh. 8) relied on by PW 5. But PW 2 who had the key misplaced it. PW 2 was offered an alternative room which had only a single bed and so they could no longer spend the night together. The appellant then offered PW 1 his room H9 and that was how she found herself there. The evidence of the investigating officer had she gone to the scene would not have changed the clear and uncontroverted evidence of PW 1, PW 2 and PW 3, that the incident took place in room H9. I therefore do not find any contradiction in the prosecution evidence on that issue whatsoever.
40. On the submissions that there was contradiction on how the scene appeared when PW 2 arrived, indeed she said that there was no outside the room when she arrived. PW 3 explained that he was the closest person who witnessed the incident and spoke to the appellant and the complainant and when he left, there was nobody else outside the room. PW 2 had to come from a different block to the block where room H9 was. It follows that at the time she arrived, PW 3 and any other persons who might have been attracted by the commotion had gone back to their rooms. The scene was a hotel room, not a public place. PW 2 attempted to engage with the complainant but she appeared scared. She was half naked at the time. It is unlikely that people would have continued milling around the place.
41. On the submission that PW 2 testified that when she arrived she found “Joe with Diana” I have checked the typed proceedings which indeed indicate that she found Joe with Diana, but looking at the handwritten proceedings the word the typist wrote as Joe was actually “there” so that it read, I found her there with Diana and not I found Joe with Diana as appearing in the typed proceedings. In the next statement both proceedings indicate “I found Diana and Loise” reinforcing the fact that the first one was also Loise. I have also checked the cross-examination and I do not see anywhere learned counsel raised that issue. If that was what the witness had said, it would have been a major issue which would not escape learned counsel’s attention to cross-examine upon. The evidence of PW 2 was consistent with that of PW 3 that at the time she arrived, the appellant or Joe had left and so she did not mention finding him there in her testimony.
42. The other submission was that whereas PW 2 testified finding the complainant with Loise, the complainant never mentioned Loise being at the scene. It is correct that the complainant never mentioned Loise as being at the scene after the incident. But she mentioned her being there before the incident, that Loise and the appellant escorted her to the room H9. It is also apparent from the evidence that the complainant never mentioned any other person as having been to the scene other than Sharrin who was PW 3. But there is evidence that people responded and assisted her. Her failure to mention them cannot mean that they did not turn up. It is probably because she was not led to name the people who responded to her distress call and assisted her. Even for Lucy, PW 2, she only said that he called his brother without saying that she came around and in which state she found her. So, the fact that she did nor mention Loise cannot mean that PW 2 should be disbelieved for mentioning her.
43. Finally, on the alleged contradictions in the evidence of the prosecution, I refer to the Court of Appeal case of Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR) in which the Ugandan case of Twehangane Alfred v. Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 where the Uganda Court of Appeal stated that it is not every contradiction that warrants rejection of evidence thus:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
44. In this case, I have not found any grave contradictions as would have called for an explanation from the prosecution, which then was not offered nor do I find that any of the witnesses who testified for the prosecution was deliberately untruthful.
45. Learned counsel also submits that the appellant was not identified as the person who committed the alleged incident because there was another Joe Karimi M. who was booked in room M7. That submission does not have much substance because, the appellant was well known to the complainant. He was also well known to PW 2 who not only saw him with the complainant but also spoke to him at the material time in the room in which both of them were. That was not the other Joe.
46. Learned counsel also submitted that the trial court ignored the evidence of PW 5 which showed that PW 5 checked into the hotel on the evening of 22/1/2017 and he was not booked to sleep at Roswam hotel and that he did not see him at the hotel and therefore he could not have been at the hotel on the morning of 22/1/2017 when the alleged incident took place.
47. That submission is attractive but not valid and does not aid the appellant to revert the evidence tendered by the prosecution. There is evidence from PW 1, PW 2 and PW 3 all who knew the appellant that they were with him at the hotel from the evening of 21/1/2017 and he was still there in the morning of 22/1/2017. The appellant also confirmed that indeed he was at the hotel with the prosecution witnesses for the same event during that time. The issue of PW 5, the hotel manager mentioning the date of the event as starting on the evening of 22/1/2017 which line was picked up by the appellant in his defence is clearly discounted by the evidence of PW 1, PW 2 and PW 3. That evidence does not exculpate the appellant in any way.
48. On the evidence of PW 5 saying that he heard of an incident of a commotion that occurred in the meeting hall and not in the rooms, it is quite clear that PW 5 was talking from what he was allegedly told. That is hearsay and unreliable. He was not present when the incident took place and he had nothing to say about what time it occurred, where it occurred, and who was involved.
49. The next issue is whether the prosecution proved its case against the appellant beyond a reasonable doubt as found by the learned trial magistrate.
50. 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.”
51. 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.
52. Each of these elements must be proved by the prosecution beyond a reasonable doubt.
53. 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 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.”
54. Section 43 of the SOA defines what constitutes an intentional and unlawful act. For the present case what is relevant is S. 43(1)(a) as read with (2)(a) where an intentional and unlawful act would entail an act committed in any coercive circumstance, that is, by use of force against the complainant or another person or against the property of the complainant or that of any other person.
55. Section 2 of the SOA defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person;
56. The evidence tendered by the prosecution must show that the act complained went beyond preparation to possible commission of the offence and the intention to commit the crime must likewise be proved. 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”.
57. 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.”
58. 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.”
59. In a more recent decision, he Court of Appeal considering the definition of attempt in the case of Isaack Ali Issack v Republic [2020] KECA 699 (KLR) held that the above section brings out two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention.
60. In the case of Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR) the Court of Appeal, considering a case of attempted defilement held that the main ingredient of this offence is committing an act which would cause penetration and this is the actus reus of the offence. The Court of Appeal further endorsed the High Court approach on the proof of an attempt where it had said that:
“The question that calls for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant”
61. The Court of Appeal also observed that the High Court had cited the case of Mussa s/o Saidi v Republic [1962] EA 454 where the Court of Appeal said in part relating to attempt:
“Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence.”
62. I apply these holdings to the present case seeing that the offence of defilement and rape fall under the same genre and are provided for under the SOA. The question here then would be whether the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to rape the complainant.
63. In the present case, the learned trial magistrate found that the complainant was a witness of truth, meaning that even in the absence of corroboration of her evidence, he 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.
64. The appellant attempted to set up a feeble defence of his arrest having arisen out of some alleged falling out with the person they were campaigning for, Wambui Ngirichi, on grounds that she was an aunt to the complainant. That defence was feeble because it was never raised during cross-examination of any of the prosecution witnesses that there was a falling out between the appellant and Ngirichi at the meeting. In fact, PW 1 said that Ngirichi was held up that evening and she was not able to attend the meeting and it was agreed that she would meet them the following morning. That means she was not there so as to have fallen out with the appellant as alleged in his defence. She was never cross-examined on her relationship with Ngirichi. I do not think that that being the fulcrum of his defence it would have escaped him to let his counsel know and cross-examine the witnesses on the issue. The defence is therefore without much weight to challenge the prosecution evidence or create a doubt in the mind of the court.
65. The complainant’s evidence that the appellant was in her room and they were both half naked with the appellant only wearing his boxers and the complainant with her T-shirt alone is corroborated by PW 3 who saw the two of them in those states.
66. The complainant’s evidence that she screamed to call for assistance was corroborated by PW 2 and PW 3 who heard her screams.
67. The complainant’s evidence that she was all along struggling to free herself from the appellant who was assaulting her and pinning her down was corroborated by PW 3 who witnessed part of the struggle. It was further corroborated by the evidence of the various injuries she sustained on her body in the course of the struggle. PW 2 and PW 3 who saw her immediately after her encounter with the appellant testified that they saw her with injuries. Further corroboration of the struggle was from the manner in which the room appeared messy with broken glasses and beddings on the floor as testified by PW 2 and PW 3.
68. Evidence of the appellant removing his trousers and remaining with only his boxers on, pulling the complainant’s trousers/tights off leaving her naked, pushing her onto the bed, pulling out her tampons from her private parts shows not only that he had the intention to engage in sexual intercourse with her but he was acting towards achieving the same. I find that these acts were proximate to the appellant engaging in sexual intercourse with the complainant.
69. In the case of Cheruiyot above, the Court of Appeal in allowing the appeal observed of the evidence tendered that:
“As the evidence of the 2nd complainant revealed, the appellant did not even touch her. He did not even remove her underpants. He did not remove his genital organ. He did not even attempt to reach her genital organs. Without in any way trying to define the acts which would cause penetration, we find that the acts of the appellant described by JC, if they happened at all, are too remote to an act of penetration.”
70. In contrast, 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 3 after which the appellant had no otherwise but to leave her alone cursing that she was being difficult.
71. 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 a case of attempted rape contrary to section 4 of the SOA against the appellant beyond a reasonable doubt.
72. 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.
73. The appeal is dismissed and the appellant, who was released on bond pending appeal be and is hereby ordered to surrender himself to Kerugoya prison immediately to complete his sentence. Otherwise a warrant of arrest shall issue for his apprehension through the OCS Kerugoya police station and escort to Kerugoya prison where he was serving the sentence.
74. Right of appeal 14 days explained.
75. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Delivered, dated and signed on the Virtual Platform, Teams, this 20th day of May 2025 in the presence of:
The appellant in person at Kerugoya court.
Rienye for the appellant.
Muriithi for the respondent.
Job court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E017 OF 2021
JOE KINGFORD MACHARIA……………………APPELLANT
VERSUS
REPUBLIC ………………………………………RESPONDENT
(Being an appeal from the conviction and sentence of Hon. E.O. Wambo P.M. in Kerugoya Magistrates Court Sexual Offence (SO) Case No. 20 of 2017 decided on 10/10/2021 and 3/11/2021 respectively)
J U D G M E N T
1. The appellant, Joe Kingford Macharia 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 22/1/2017 at Kerugoya Roswam hotel within Kirinyaga County, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of D.W.M. without her consent.
2. In the alternative, he was charged with committing an indecent act with an adult contrary to section 11(A) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. The particulars of the offence were that at the same place and time as in the principal charge he intentionally and unlawfully touched the breasts of D.W.M. with his hands against her will.
3. The prosecution called 6 witnesses in support of its case. PW 1, D.W.M. was the complainant. She gave evidence that the appellant attempted to rape her in a room at Roswam hotel on the night/early morning hours of 22/1/2017. She put up a fight as she shouted and thwarted his efforts. PW 2, Lucy Wangeci Wamutira testified to have been attracted by screams from the complainant’s room on the material night at around 4.00 a.m. and that when she proceeded there, she found the complainant in distress with her room in a mess. PW 3, Peter Njoroge Kagure gave evidence that he witnessed the incident by peeping through the window of the room in which the incident was taking place. PW 4, Hezron Macharia Maina is a clinical officer. He gave medical attention to the complainant and completed her P3 form and PRC forms on 25/1/2017. PW 5, Andrew Mwaniki Kinyua was a manager at Roswam hotel. PW 6, IP Mercy Kaleche was the investigating officer in the case.
4. The prosecution’s case from the evidence of these witnesses was that the appellant together with the complainant, PW 1, PW 2 and PW 3 were fairly well known to one another. They belonged to a group of people campaigning for one Wambui Ngirichi the Kirinyaga Women representative in Parliament. After they were done for the day’s campaign, the group proceeded to Roswam hotel to spend the night there. Some of them, among them the complainant, PW 2 and the appellant had drinks before they retired to bed.
5. At some point in the course if the night, the complainant’s roommate Lucy, PW 2 realized that their key was missing. She was allocated another room but with a single bed and so they could not share with the complainant. The appellant offered to surrender his room H9 to her and said he would spend elsewhere. At 3.40 a.m. the appellant and one Jean took the complainant to her room. The appellant and Jen remained outside the room talking then Jean left but the appellant went back to the room and closed the door.
6. The complainant asked him to open the door and leave but he advanced towards her and undressed, remaining with his boxers. He went on top of the complainant and the complainant tried to shout telling him in Kiswahili to leave her alone. She struggled with him and the appellant hit her telling her to shut up and stop disturbing him. He opened her brasserie and moved to the trousers known as tights (Exh. 1) and tried to pull them down. The complainant reached out to some utensils and picked a plate with her right hand and threw at the appellant. She was then able to move from her bed and got hold of some glasses and also hulled them at him. The appellant continued struggling with her and telling her to shut up.
7. The complainant noticed someone trying to listen and peep through the window and reached to the curtain and pulled it down. The appellant whom she said was stronger than him managed to pull her back to the bed and continued trying to undress her. He managed to pull off her tights/trousers and while using his right hand, he removed her tampons by pulling at the string as she was in her menses. Realizing she was naked, the complainant said she put up a big struggle as she tried to scratch him and shout for help. This attracted other people’s attention and people gathered outside the room. According to the complainant, the appellant realized it would be a problem. He got up, picked his trousers and cowboy hat, opened the door and as he left, PW 3 whom the complainant knew as Sharrin asked him what the problem was and the appellant answered that the complainant was the one being difficult. He then left.
8. The complainant said that her trousers was torn and the appellant left her naked, only with her campaign T-shirt on. She said she sustained injuries on her front teeth, both arms and right leg.
9. She said that Lucy, PW 2 called her brother Kennedy Kamau who came and they went to Kerugoya police station and made a report. They then proceeded to Kerugoya General hospital but due to a doctor’s strike, she was not attended to. They proceeded to Mt. Kenya hospital where she received medical attention. She went to Kerugoya hospital on 25/1/2017 and she received medical examination including laboratory tests. Her P3 and PRC forms were completed there.
10. The complainant said that she had taken whiskey but she was not intoxicated to a point of not appreciating her environment. She also said that she did not lead the appellant to the incident.
11. PW 2 said that indeed she was to share a room with the complainant. She had the key for their room but misplaced it. She was offered a different room where she went alone. She was woken up by screams of agony at around 4.00 a.m. and she called a friend called Loise who told her the screams were from room H9. PW 2 went there and found Loise and the complainant in room H9 which was open. PW 2 said there was nobody outside the room. The complainant was crying saying Joe could not just do that to her. That he wanted to rape her. Her lips were bleeding and her teeth were loose. The room was in a mess. Cutlery were broken and, on the floor, the beddings were down. There was a tampon on the bed. The complainant was half naked, with only her T-shirt on. Her tights were on the bedding and the trousers on the floor.
12. PW 2 called the complainant’s brother who came over and they escorted her to the police station and also to hospital.
13. PW 3 said his room was opposite H9 where the incident allegedly occurred. At around 4.00 a.m. she heard a female voice saying “wacha kufunga mlango. Joe wachana na mimi.” He got out and went to the door of that room and tried to open it but it was locked from inside. He could hear a struggle in the room with glasses breaking. All of a sudden, the curtains were pulled. The lights in the room were off but there were lights on the pathway so he was able to see the events inside the room.
14. PW 3 looked inside the room and saw the appellant dressed only in his boxers slapping the complainant and pushing her to the bed as they struggled. They were on the bed. The complainant had blood on her mouth and she was trying to escape. She saw him and called out “nisaidie.” The appellant also saw him and took his trousers from the bed and wore it. He took his hat and grabbed something else which PW 3 did not immediately make out what it was. He opened the door and as he stepped out, PW 3 asked him addressing him by name, “ni nini mbaya Joe?” The appellant answered, “huyu msichana ni sumbua.” PW 3 asked him, “mbona unamchapa?” and the appellant left.
15. PW 3 stood at the door-step and saw the complainant was still crying and naked downwards, only with her T-shirt on. He tried talking to her but she appeared scared of him. He left and went back to his room.
16. Later that morning the complainant and her brother went and asked him to accompany them to the police to make a report and he did. He also accompanied them to hospital.
17. The court asked PW 3 if he had a nickname and he said Sharrin.
18. PW 4 examined the complainant at Kerugoya County hospital and completed her P3 form and PRC form. There was nothing evidentially significant found upon examination of her genitalia. Examination of her outer system showed that she had tenderness on left cheek; small laceration 0.05 cm long on the inner aspect of the upper lip (the typed proceedings indicate limb, which is not correct as per the P3 form). She had a scratch on the right upper back, multiple bruises on the right forearm and upper arm, bruises on the left upper arm and left forearm and a bruise on the left calf.
19. The appellant gave sworn evidence in defence and denied that he committed the offence. He said that on 22/1/2017 he was at Roswam hotel hall where he was taking late night dinner. They had held a political event at Sifa Gardens and he was chairing the meeting as the secretary general of Jubilee party. The aspirant Wangui Ngirichi joined them for the meeting. He differed with her politically and left her camp that evening and he joined governor Waiguru’s camp who were not on good terms with Ngirichi. He left for his home at around 8.00 p.m. He was not among the people who were to sleep at the hotel. He said the complainant is niece of Ngirichi. He said he never interacted with the complainant and only came to know her when he was arrested in October 2017.
20. After the trial, the accused person was found guilty of the principal charge of attempted rape and he was convicted and sentenced to serve 5 years imprisonment.
21. The appellant was aggrieved by the decision of the trial court and in his petition of appeal dated 16/11/2021 has set out the following grounds of appeal contending that the learned trial magistrate erred in law and in fact:
i. and misdirected himself by failing to consider and determine whether the accused had been properly identified.
ii. by failing to find that the ingredients of attempted rape ahd not been proved beyond a reasonable doubt.
iii. for failing to consider that the particulars of the offence as set out in the charge sheet were not proved.
iv. when he failed to consider the defence of the respondent (sic) and the evidence of PW 5 in his analysis and thereby misdirected himself.
v. when he ignored the contradictions prevalent in the prosecution evidence thereby misdirecting himself.
vi. the sixth ground is not clear
22. The appellant therefore prays that the appeal be allowed, the judgment of the trial court be quashed and the sentence set aside and be substituted with an acquittal.
23. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
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 set out in his submissions the issues for determination as:
i. whether there were material contradictions and inconsistencies in the prosecution evidence.
ii. whether the evidence of PW 5 exculpates the appellant.
iii. whether the prosecution proved its case beyond a reasonable doubt.
27. Learned counsel for the respondent on his part submitted that the issues for determination are:
i. whether the respondents proved their case beyond a reasonable doubt.
ii. whether the applicant was properly convicted.
28. The submission by learned counsel was simple, that the learned trial magistrate did not err in convicting the appellant.
29. I have examined and re-evaluated the evidence tendered before the trial court as well as the submissions by learned counsels. The issue for determination is whether the learned trial magistrate was correct in his finding that the prosecution proved the case of attempted rape against the appellant beyond a reasonable doubt and thereby convicting the appellant.
30. Learned counsel for the appellant submitted that there were contradictions regarding the date of the offence. He points out that whereas the particulars of the charge indicated that the offence took place on 22/1/2017 which was the same date the complainant testified to, saying that it was on the morning of 22/1/2017 at around 4.00 a.m., PW 3 testified of a meeting at the hotel on 24/1/2017, the appellant and the hotel manager, PW 5 testified that the appellant addressed a dinner meeting at the hotel on the evening of 22/1/2017 and the booking list produced by PW 5 showed that PW 1, the complainant checked into the hotel on the evening of 22/1/2017. Learned counsel submits that as a result of these contradictions, it is improbable that the offence could have been committed on the morning of 22/1/2017, PW 1 having checked in later that evening.
31. The submissions by learned counsel for the respondent do not address the issue of contradictions in the evidence pointed out by learned counsel for the appellant.
32. At the hearing before the trial court, the issue of contradictions in the evidence of the prosecutions witnesses generally or even on the date of the commission of the offence was not raised. The trial court was therefore not called upon to address that issue. All the same, the trial court in evaluating the evidence would need to look out for any contradictions in the evidence of the witnesses and see whether they are material or not. However, where there are none, the trial court need not embark on a fishing expedition.
33. This being a first appeal, I have to evaluate the entire evidence to see whether there were in fact the contradictions as pointed out by learned counsel for the appellant and if they are, whether they are material or not.
34. I have looked at the trial court record. The typed proceedings indicate the evidence of PW 3 stating the date as 24/1/2017. However, a closer look at the handwritten proceedings shows that the learned magistrate wrote a 1 then changed it to 2 or vise versa without crossing the earlier number or countersigning the change. This is quite understandable given that there is evidence by PW 1 and PW 2 that the meeting by the campaign group begun on 21st and they spent the night at Roswam to the following day, the 22nd. Secondly, besides the evidence of PW 3, the evidence of PW 1 and PW 2 is clear that the alleged incident took place on the morning of 22/1/2017 and not any other date. Thirdly, as stated above, if the issue of the discrepancy on the date was a material contradiction the defence would have taken it up in cross-examination or even the prosecution in re-examination. That was not done.
35. The booking list (Exh. 8) was never put to the prosecution witnesses PW 1, PW 2 and PW 3 for them to explain the discrepancy given their evidence that the incident occurred on the morning of 22/1/2017.
36. Finally, assuming that there was any contradiction as submitted, which I find there was not, section 214(2) of the Criminal Procedure Code (Cap. 75) Laws of Kenya (CPC) provides that variance between a charge and the evidence adduced with respect to the time the alleged offence was committed is not material as follows:
Section 214
(1) …
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
37. Therefore, the issue of the inconsistencies on the dates the alleged incident took place in the evidence of the prosecution witnesses and the charge sheet is not material as to vitiate the conviction.
38. Learned counsel also testified on contradictions regarding the scene of crime. That PW 1, PW 2 and PW 3 testified that the alleged offence took place in room H9 whereas the evidence of the manager PW 5 showed that PW 1 was booked into room H6 and the investigating officer did not confirm in which room PW 1 slept.
39. PW 1 and PW 2 explained that indeed the two of them had been booked to spend the night together in room H6 as appears on the booking list (Exh. 8) relied on by PW 5. But PW 2 who had the key misplaced it. PW 2 was offered an alternative room which had only a single bed and so they could no longer spend the night together. The appellant then offered PW 1 his room H9 and that was how she found herself there. The evidence of the investigating officer had she gone to the scene would not have changed the clear and uncontroverted evidence of PW 1, PW 2 and PW 3, that the incident took place in room H9. I therefore do not find any contradiction in the prosecution evidence on that issue whatsoever.
40. On the submissions that there was contradiction on how the scene appeared when PW 2 arrived, indeed she said that there was no outside the room when she arrived. PW 3 explained that he was the closest person who witnessed the incident and spoke to the appellant and the complainant and when he left, there was nobody else outside the room. PW 2 had to come from a different block to the block where room H9 was. It follows that at the time she arrived, PW 3 and any other persons who might have been attracted by the commotion had gone back to their rooms. The scene was a hotel room, not a public place. PW 2 attempted to engage with the complainant but she appeared scared. She was half naked at the time. It is unlikely that people would have continued milling around the place.
41. On the submission that PW 2 testified that when she arrived she found “Joe with Diana” I have checked the typed proceedings which indeed indicate that she found Joe with Diana, but looking at the handwritten proceedings the word the typist wrote as Joe was actually “there” so that it read, I found her there with Diana and not I found Joe with Diana as appearing in the typed proceedings. In the next statement both proceedings indicate “I found Diana and Loise” reinforcing the fact that the first one was also Loise. I have also checked the cross-examination and I do not see anywhere learned counsel raised that issue. If that was what the witness had said, it would have been a major issue which would not escape learned counsel’s attention to cross-examine upon. The evidence of PW 2 was consistent with that of PW 3 that at the time she arrived, the appellant or Joe had left and so she did not mention finding him there in her testimony.
42. The other submission was that whereas PW 2 testified finding the complainant with Loise, the complainant never mentioned Loise being at the scene. It is correct that the complainant never mentioned Loise as being at the scene after the incident. But she mentioned her being there before the incident, that Loise and the appellant escorted her to the room H9. It is also apparent from the evidence that the complainant never mentioned any other person as having been to the scene other than Sharrin who was PW 3. But there is evidence that people responded and assisted her. Her failure to mention them cannot mean that they did not turn up. It is probably because she was not led to name the people who responded to her distress call and assisted her. Even for Lucy, PW 2, she only said that he called his brother without saying that she came around and in which state she found her. So, the fact that she did nor mention Loise cannot mean that PW 2 should be disbelieved for mentioning her.
43. Finally, on the alleged contradictions in the evidence of the prosecution, I refer to the Court of Appeal case of Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR) in which the Ugandan case of Twehangane Alfred v. Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 where the Uganda Court of Appeal stated that it is not every contradiction that warrants rejection of evidence thus:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
44. In this case, I have not found any grave contradictions as would have called for an explanation from the prosecution, which then was not offered nor do I find that any of the witnesses who testified for the prosecution was deliberately untruthful.
45. Learned counsel also submits that the appellant was not identified as the person who committed the alleged incident because there was another Joe Karimi M. who was booked in room M7. That submission does not have much substance because, the appellant was well known to the complainant. He was also well known to PW 2 who not only saw him with the complainant but also spoke to him at the material time in the room in which both of them were. That was not the other Joe.
46. Learned counsel also submitted that the trial court ignored the evidence of PW 5 which showed that PW 5 checked into the hotel on the evening of 22/1/2017 and he was not booked to sleep at Roswam hotel and that he did not see him at the hotel and therefore he could not have been at the hotel on the morning of 22/1/2017 when the alleged incident took place.
47. That submission is attractive but not valid and does not aid the appellant to revert the evidence tendered by the prosecution. There is evidence from PW 1, PW 2 and PW 3 all who knew the appellant that they were with him at the hotel from the evening of 21/1/2017 and he was still there in the morning of 22/1/2017. The appellant also confirmed that indeed he was at the hotel with the prosecution witnesses for the same event during that time. The issue of PW 5, the hotel manager mentioning the date of the event as starting on the evening of 22/1/2017 which line was picked up by the appellant in his defence is clearly discounted by the evidence of PW 1, PW 2 and PW 3. That evidence does not exculpate the appellant in any way.
48. On the evidence of PW 5 saying that he heard of an incident of a commotion that occurred in the meeting hall and not in the rooms, it is quite clear that PW 5 was talking from what he was allegedly told. That is hearsay and unreliable. He was not present when the incident took place and he had nothing to say about what time it occurred, where it occurred, and who was involved.
49. The next issue is whether the prosecution proved its case against the appellant beyond a reasonable doubt as found by the learned trial magistrate.
50. 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.”
51. 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.
52. Each of these elements must be proved by the prosecution beyond a reasonable doubt.
53. 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 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.”
54. Section 43 of the SOA defines what constitutes an intentional and unlawful act. For the present case what is relevant is S. 43(1)(a) as read with (2)(a) where an intentional and unlawful act would entail an act committed in any coercive circumstance, that is, by use of force against the complainant or another person or against the property of the complainant or that of any other person.
55. Section 2 of the SOA defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person;
56. The evidence tendered by the prosecution must show that the act complained went beyond preparation to possible commission of the offence and the intention to commit the crime must likewise be proved. 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”.
57. 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.”
58. 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.”
59. In a more recent decision, he Court of Appeal considering the definition of attempt in the case of Isaack Ali Issack v Republic [2020] KECA 699 (KLR) held that the above section brings out two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention.
60. In the case of Stephen Cheruiyot Melly v Republic [2019] KECA 394 (KLR) the Court of Appeal, considering a case of attempted defilement held that the main ingredient of this offence is committing an act which would cause penetration and this is the actus reus of the offence. The Court of Appeal further endorsed the High Court approach on the proof of an attempt where it had said that:
“The question that calls for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to defile the complainant”
61. The Court of Appeal also observed that the High Court had cited the case of Mussa s/o Saidi v Republic [1962] EA 454 where the Court of Appeal said in part relating to attempt:
“Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence.”
62. I apply these holdings to the present case seeing that the offence of defilement and rape fall under the same genre and are provided for under the SOA. The question here then would be whether the conduct of the appellant constituted an overt act sufficiently proximate to constitute an attempt to rape the complainant.
63. In the present case, the learned trial magistrate found that the complainant was a witness of truth, meaning that even in the absence of corroboration of her evidence, he 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.
64. The appellant attempted to set up a feeble defence of his arrest having arisen out of some alleged falling out with the person they were campaigning for, Wambui Ngirichi, on grounds that she was an aunt to the complainant. That defence was feeble because it was never raised during cross-examination of any of the prosecution witnesses that there was a falling out between the appellant and Ngirichi at the meeting. In fact, PW 1 said that Ngirichi was held up that evening and she was not able to attend the meeting and it was agreed that she would meet them the following morning. That means she was not there so as to have fallen out with the appellant as alleged in his defence. She was never cross-examined on her relationship with Ngirichi. I do not think that that being the fulcrum of his defence it would have escaped him to let his counsel know and cross-examine the witnesses on the issue. The defence is therefore without much weight to challenge the prosecution evidence or create a doubt in the mind of the court.
65. The complainant’s evidence that the appellant was in her room and they were both half naked with the appellant only wearing his boxers and the complainant with her T-shirt alone is corroborated by PW 3 who saw the two of them in those states.
66. The complainant’s evidence that she screamed to call for assistance was corroborated by PW 2 and PW 3 who heard her screams.
67. The complainant’s evidence that she was all along struggling to free herself from the appellant who was assaulting her and pinning her down was corroborated by PW 3 who witnessed part of the struggle. It was further corroborated by the evidence of the various injuries she sustained on her body in the course of the struggle. PW 2 and PW 3 who saw her immediately after her encounter with the appellant testified that they saw her with injuries. Further corroboration of the struggle was from the manner in which the room appeared messy with broken glasses and beddings on the floor as testified by PW 2 and PW 3.
68. Evidence of the appellant removing his trousers and remaining with only his boxers on, pulling the complainant’s trousers/tights off leaving her naked, pushing her onto the bed, pulling out her tampons from her private parts shows not only that he had the intention to engage in sexual intercourse with her but he was acting towards achieving the same. I find that these acts were proximate to the appellant engaging in sexual intercourse with the complainant.
69. In the case of Cheruiyot above, the Court of Appeal in allowing the appeal observed of the evidence tendered that:
“As the evidence of the 2nd complainant revealed, the appellant did not even touch her. He did not even remove her underpants. He did not remove his genital organ. He did not even attempt to reach her genital organs. Without in any way trying to define the acts which would cause penetration, we find that the acts of the appellant described by JC, if they happened at all, are too remote to an act of penetration.”
70. In contrast, 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 3 after which the appellant had no otherwise but to leave her alone cursing that she was being difficult.
71. 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 a case of attempted rape contrary to section 4 of the SOA against the appellant beyond a reasonable doubt.
72. 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.
73. The appeal is dismissed and the appellant, who was released on bond pending appeal be and is hereby ordered to surrender himself to Kerugoya prison immediately to complete his sentence. Otherwise a warrant of arrest shall issue for his apprehension through the OCS Kerugoya police station and escort to Kerugoya prison where he was serving the sentence.
74. Right of appeal 14 days explained.
75. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Delivered, dated and signed on the Virtual Platform, Teams, this 20th day of May 2025 in the presence of:
The appellant in person at Kerugoya court.
Rienye for the appellant.
Muriithi for the respondent.
Job court assistant.
ANDAYI W. FRANCIS
JUDGE