[1] This is an appeal from the conviction and sentence passed in the Magistrate’s Court in Oyugis MCSOA Case No. 39 of 2019: Republic v John Ombwor Amollo. The appellant, John Ombwor Amollo , was the accused person in that case. He was arraigned before the lower court on 3 rd October 2019 charged with the offence of attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on diverse dates between 23 rd September 2019 and 2 nd October 2019 at Kosele area in Rachuonyo South Sub County within Homa Bay County, he intentionally attempted to cause his penis to penetrate the vagina of M A H, a girl then aged 10 years.
[2] 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, No. 3 of 2006. It was alleged that on diverse dates between 23 rd September 2019 and 2 nd October 2019 at Kosele area in Rachuonyo South Sub County within Homa Bay County, he intentionally and unlawfully touched the vagina of M A H, a girl then aged 10 years.
[3] The appellant denied the charges, and after trial, in which the Prosecution called six witnesses, he was found guilty of the principal charge of attempted defilement. He was accordingly convicted and sentenced to serve 10 years' imprisonment for the offence.
[4] Being aggrieved by his conviction and sentence, the appellant, preferred this appeal on the following grounds:
[a] That the learned trial magistrate erred in law and fact in convicting him on evidence which did not meet the required standard.
[b] That the medical report tendered before the court did not link him in any way with the offence charged.
[c] That he is elderly and sickly and ought to be released in order to seek medical attention while out of prison.
[d] That the learned magistrate erred in law and fact by depending on evidence which was based on theory and conspiracy between the witnesses.
[e] T hat the said offence was not proved beyond reasonable doubt by the Prosecution witnesses.
[e] That the learned magistrate did not consider the age of the appellant and his condition before passing the sentence of 10 years.
[f] That the learned magistrate erred in law and fact by convicting him on charges that were not tallying and were unfavourable to him.
[5] Accordingly, the appellant prayed that his appeal be allowed, the conviction quashed and the sentence imposed on him set aside.
[6] Upon directions being given that the appeal be canvassed by way of written submissions, the appellant complied and filed his undated written submissions on 18 th December 2024. He summarised the evidence of each of the 6 prosecution witnesses and pointed out what he perceived to be inconsistencies and contradictions in their evidence. He further urged the Court to note that the complainant was taken to hospital about one month after the alleged acts took place. He therefore impugned the medical evidence and urged the Court to resolve the appeal in his favour.
[7] Counsel for the respondent filed written submissions dated 27 th March 2025. Reference was made therein to Section 9 of the Sexual Offences Act and the ingredients that needed to be proved before the lower court. The respondent restated the evidence of the complainant to the effect that the appellant used to call her to his house in the morning as she walked to school and at that he would undress her, place her on the bed and insert his penis inside her vagina while lying on his bed. The respondent similarly summarized the evidence of the other prosecution witnesses and urged the Court to find, as did the lower court, that all the elements of the offence of attempted defilement were proved beyond reasonable doubt.
[8] It was further the submission of the respondent that the sentence of ten years meted out by the lower court was lawful and within the ambit of Section 9(2) of the Sexual Offences Act. The respondent further urged for enhancement of sentence, contending that the appellant not only admitted the allegations against him but also showed no remorse. In the respondent’s view, a heavier sentence would portray the correct message in the eyes of wisdom.
[9] As the first appellate court, it is the duty of this Court to undertake a re-evaluation and analysis of the evidence adduced before the lower court so as to come to its own conclusions thereon, while bearing in mind that it did not see or hear the witnesses. In Okeno v Republic [1972] EA 32 this principle was explicated thus:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination...and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...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's findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..."
[10] The Prosecution called 6 witnesses before the lower court. The complainant, M A H, was the first witness. She testified that she was then aged 10 years and was in Standard 2 at Kosele Primary School. She was staying with her aunt, Faith (PW2). She identified the appellant before the lower court as her aunt’s next door neighbor and known and mentioned that he was known to her as Soko . The evidence of the complainant was that whenever she left for school, the appellant would call her, take her to his house and would place her on his bed, remove her underpants and do what she referred to as “tabia mbaya” to her. She also specifically mentioned that the appellant inserted his penis inside her vagina about 8 times over the period comprising 3 rd term of that year, between September and November 2019. She added that the appellant would thereafter give her Kshs. 10/= or Kshs. 20/= to buy sweets and pencils.
[11] PW1 further stated that, unknown to her, a neighbour by the name Grace saw the appellant holding her hand and leading her to his house and brought her suspicions to the attention of one of her teachers who, in turn, alerted her aunt. She was taken to hospital for examination; after which she was taken to Kosele Police Station.
[12] F A O (PW2) confirmed that the complainant is her niece; and that she was staying with her in September 2019. She also testified that she was 10 years old at the time and was going to Kosele Primary School. PW2 availed the complainant’s Certificate of Birth to back up her evidence about the minor’s age. It was also the testimony of PW2 that, while at her place of work on the 2 nd September 2019 she was summoned to the complainant’s school. She went there and found the complainant with Teacher Roseline ; and was informed by the teacher that her neighbor called Soko had been defiling the girl for some time. The girl was taken to Rachuonyo South Sub County Hospital for examination and treatment. The appellant was later arrested and charged.
[13] R O (PW3), a teacher at Kosele Primary School, confirmed that the complainant was one of the pupils at their school and that she was in Standard 2 in 2019. She further testified that, on the 2 nd October 2019, while on her way to the salon, she met Grace , also known as Mama Diana who reported to her that she had seen the complainant at the appellant’s house that morning. Since they knew that the complainant was staying with her aunt, she took a decision to notify the aunt, PW2, and thereafter caused the child to be taken to the Children Office for further protective action.
[14] Grace Anyango (PW4) testified that she was sitting at her doorstep, peeling potatoes when she saw the complainant entering the appellant’s house. She knew both the complainant and the appellant because she was a neighbor of both the complainant’s aunt and the appellant. She noted that the minor had overstayed in the appellant’s house for about 2 to 3 hours and immediately suspected foul play because the appellant lived alone in his house. She went to the appellant’s house and noted that he was not in the sitting room. She called his name and he responded from the bedroom. She engaged him in small talk before leaving. The child left thereafter. She reported to Teacher Roseline and when she interviewed the complainant, she disclosed that the appellant had been having sex with her. They took the child to the Children Office and alerted the complainant’s aunt.
[15] The Prosecution also called Kibet Serem (PW5), a Clinical Officer who was then working at Rachuonyo South Sub County Hospital. He testified that he was on duty on the 3 rd October 2019 when the complainant was brought to their facility on allegations of defilement. He examined her and confirmed that she had been defiled and infected with a sexually transmitted disease. He noted that, although her hymen was intact, the labia majora was inflamed, indicative of penile penetration. He however was of the opinion that the cause of the inflammation was the infection and not penetration.
[16] The last prosecution witness was PC Paul Kariuki , the investigating officer. He conducted the investigations in this matter jointly with PC Stephen Omweswa who was ailing at the time he testified, and was admitted in hospital. He confirmed that a report of defilement was made to their officer; and that upon conducting investigations, they gathered sufficient evidence to warrant the arrest and prosecution of the appellant. He was one of the police officers who arrested the appellant. He produced the Certificate of Birth of the complainant before the lower court as the Prosecution’s Exhibit 5.
[17] In his defence, the appellant admitted that he knew the complainant; and that she was staying at Kosele with her aunt who was his neighbor. He also confirmed that the complainant was then a pupil at Kosele Primary School. The appellant admitted that he touched the body of the minor and attempted to penetrate her vagina with his penis. He also admitted that he was aware and could clearly see that the child was 10 years old or below. He then concluded by telling the lower court that he was ready to abide by the sentence that the court would impose. He mentioned too that he was 80 years old at the time.
[18] In the light of the foregoing, the single issue for determination in this appeal is whether the offence of attempted defilement was proved beyond reasonable doubt. It is expedient to restate here below the provisions of Section 9 of the Sexual Offences Act for their full tenor and effect. The section stipulates thus in Sub-sections (1) and (2) thereof:
(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”
[19] The word “attempt” is defined in Section 388(1) of the Penal Code as follows:
“where a person intending to commit an offence begins to put his intentions into execution by means adopted to its fulfillment, and manifests his intention by some avert 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 is prevented by circumstances independent of his will or whether he desists of his own motion from further prosecution of his intention.”
[20] Hence, in Abdi Ali Bere v Republic [2015] eKLR, in which the Court of Appeal had occasion to discuss the above provision, it held that:
“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. In the work quoted above by Smith & Hogan, the authors give the following scenario at page 291 to illustrate the distinction:
“D, intending to commit murder buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoiters a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. D takes up his position, loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder…”
[21] In the premises, in order to prove the offence of attempted defilement against the appellant, the Prosecution needed to prove both the mens rea and as much of the actus reus that would show that he had put in motion his intention to defile the complainant, beyond mere preparation. This was well articulated in John Gatheru Wanyoike v Republic [2019] eKLR thus:
“It is clear that the elements of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the child was a minor, that there was an act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.”
[22] Thus, upon re-evaluation of the evidence presented before the lower court, the issues to determine in this appeal are:
[a] That the complainant was a minor for purposes of Section 2 of the Sexual Offences Act as read with Section 2 of the Children Act ;
[b] that some overt act towards achieving penetration was proved before the lower court; and,
[c] That the overt act was committed by the appellant.
A. On the age of the Complainant:
[23] Evidence was adduced before the lower court by the Prosecution to prove that the complainant was a minor aged 10 years; and that she was then in Standard 2 at Kosele Primary School. A copy of her Certificate of Birth was exhibited and it confirms that the minor was born on 10 th August 2009. For all intents and purposes, she was 10 years old at as at September 2019. It is also significant that the age of the minor was expressly conceded to expressly by the appellant.
[24] Hence, there was uncontroverted evidence placed before the lower court to prove beyond reasonable doubt that the complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
B. On attempted penetration:
[25] In this regard, the complainant testified that the appellant would call her to his house and place her on the bed and insert his penis in her vagina. In particular, she said this occurred 8 times before the matter came to light. When the minor was taken for examination it was confirmed by PW5 that she had been defiled and infected with a sexually transmitted disease. PW5 also noted that, although her hymen was intact, the labia majora was inflamed. He therefore concluded that the cause of the inflammation was the infection and not penetration. From the evidence of PW5, it is manifest that the examination took place the very day that the minor was seen by PW4 coming out of the house of the appellant after having spent about 2 to 3 hours there. He apparently was only interrupted by the intervention of PW4.
[26] In Kisii HCCRA No. 53 of 2009: Abraham Otieno v Republic , by Hon. Asike-Makhandia, J. (as he then was) thus:
“For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such a manner that there was no doubt at all as to what his intention was. The intention must be to rape the victim but was stopped in tracks and or in the nick of time. The intention to rape must be manifest. Such intention can be manifested by word of mouth or conduct of the culprit. If the culprit proclaims his intention of rape and directs his efforts towards that goal… but for one reason or another something happens which compels him to stop, again that would be good evidence of attempted rape…”
[27] I also find instructive the expressions of Spry J . (as he then was) in Mussa s/o Saidi v Republic [1962] E.A. 454 that:
“The principles of law involved are very simple but it is their application that is difficult. If the appellant intended to commit the offence of larceny and began to put his intention into effect and did some overt act which manifests that intention, he is guilty of attempted larceny. The burden on the prosecution is therefore first to prove the intention and secondly to prove an overt act sufficiently proximate to the intended offence. The intention will, in the majority of cases, only be capable of proof by inference and it follows in such cases that an act must be of such a character as to be incompatible with another reasonable explanation. Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence .” (emphasis supplied)
[28] It is therefore my finding that attempted penetration was proved beyond reasonable doubt in the circumstances.
C. On whether the offensive act was perpetrated by the appellant:
[29] It is indubitable, that this was a case of recognition of a person well-known to both the complainant, her aunt (PW2) and their neighbor (PW4). Moreover, the appellant, in his statement of defence did concede that he was well known to the complainant and PW2. That kind of identification cannot be said to be unreliable. In fact, it is now settled that there is some measure of assurance when dealing with the evidence of recognition. In the case of Anjononi & Another v Republic [1980] KLR 59 it was held that:
“...This was however, a case of recognition, not identification of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon personal knowledge of the assailant in some form or other. “
[30] Accordingly, I entertain no doubt at all that there was sufficient material, by way of evidence, that was presented before the lower court to connect the appellant with the crime. In arriving at this conclusion, I have given consideration to what the appellant referred to as contradictions and inconsistencies in the Prosecution case. I however do not find them so fundamental as to occasion a miscarriage of justice. Indeed, in Joseph Maina Mwangi v Republic Criminal Appeal No. 73 of 1992 , the Court of Appeal held that:
“An appellate court in considering those discrepancies must be guided by the wording of section 382 Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence”.
[31] And in the case of Jackson Mwanzia Musembe v Republic [2017] eKLR , the Court of Appeal had the following to say upon reviewing relevant precedents on the subject:
"Expounding on the issue of contradictions, the appellant stated that on the one hand, the minor testified that after she had been defiled she went back to the house and informed her mother, J K P (PW2), what had transpired. On the other hand, J testified that she heard noise coming from the latrine and she came out of the house. She found the appellant being held by some boys who informed her about the incident. As noted by the Uganda Court of Appeal in Twehangane Alfred vs. Uganda - Criminal Appeal No 139 of 2001, [2003] UGCA, 6 it is not every contradiction that warrants rejection of evidence. As that court put it:
“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.”
[32] Along the same lines, it was held in Philip Nzaka Watu v R [2016] eKLR thus:
“…it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
[33] Thus, having re-evaluated the evidence adduced before the lower court, I am satisfied that the elements of the offence of attempted defilement were proved to the requisite standard against the appellant.
[34] The sentence of 10 years that was imposed on the appellant was otherwise lawful and within the range prescribed by Section 9(2) of the Sexual Offences Act . It states:
“A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”
[35] The constitutionality of minimum sentences has been settled by the Supreme Court. In R epublic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment), for instance, the Supreme Court held that:
Paragraphs 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions ( Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) ( Muruatetu decision ) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act, or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.
[36] In the result, I find no merit in the appeal, and it is hereby dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31 ST DAY OF JULY, 2026
[2] 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, No. 3 of 2006. It was alleged that on diverse dates between 23 rd September 2019 and 2 nd October 2019 at Kosele area in Rachuonyo South Sub County within Homa Bay County, he intentionally and unlawfully touched the vagina of M A H, a girl then aged 10 years.
[3] The appellant denied the charges, and after trial, in which the Prosecution called six witnesses, he was found guilty of the principal charge of attempted defilement. He was accordingly convicted and sentenced to serve 10 years' imprisonment for the offence.
[4] Being aggrieved by his conviction and sentence, the appellant, preferred this appeal on the following grounds:
[a] That the learned trial magistrate erred in law and fact in convicting him on evidence which did not meet the required standard.
[b] That the medical report tendered before the court did not link him in any way with the offence charged.
[c] That he is elderly and sickly and ought to be released in order to seek medical attention while out of prison.
[d] That the learned magistrate erred in law and fact by depending on evidence which was based on theory and conspiracy between the witnesses.
[e] T hat the said offence was not proved beyond reasonable doubt by the Prosecution witnesses.
[e] That the learned magistrate did not consider the age of the appellant and his condition before passing the sentence of 10 years.
[f] That the learned magistrate erred in law and fact by convicting him on charges that were not tallying and were unfavourable to him.
[5] Accordingly, the appellant prayed that his appeal be allowed, the conviction quashed and the sentence imposed on him set aside.
[6] Upon directions being given that the appeal be canvassed by way of written submissions, the appellant complied and filed his undated written submissions on 18 th December 2024. He summarised the evidence of each of the 6 prosecution witnesses and pointed out what he perceived to be inconsistencies and contradictions in their evidence. He further urged the Court to note that the complainant was taken to hospital about one month after the alleged acts took place. He therefore impugned the medical evidence and urged the Court to resolve the appeal in his favour.
[7] Counsel for the respondent filed written submissions dated 27 th March 2025. Reference was made therein to Section 9 of the Sexual Offences Act and the ingredients that needed to be proved before the lower court. The respondent restated the evidence of the complainant to the effect that the appellant used to call her to his house in the morning as she walked to school and at that he would undress her, place her on the bed and insert his penis inside her vagina while lying on his bed. The respondent similarly summarized the evidence of the other prosecution witnesses and urged the Court to find, as did the lower court, that all the elements of the offence of attempted defilement were proved beyond reasonable doubt.
[8] It was further the submission of the respondent that the sentence of ten years meted out by the lower court was lawful and within the ambit of Section 9(2) of the Sexual Offences Act. The respondent further urged for enhancement of sentence, contending that the appellant not only admitted the allegations against him but also showed no remorse. In the respondent’s view, a heavier sentence would portray the correct message in the eyes of wisdom.
[9] As the first appellate court, it is the duty of this Court to undertake a re-evaluation and analysis of the evidence adduced before the lower court so as to come to its own conclusions thereon, while bearing in mind that it did not see or hear the witnesses. In Okeno v Republic [1972] EA 32 this principle was explicated thus:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination...and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...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's findings and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses..."
[10] The Prosecution called 6 witnesses before the lower court. The complainant, M A H, was the first witness. She testified that she was then aged 10 years and was in Standard 2 at Kosele Primary School. She was staying with her aunt, Faith (PW2). She identified the appellant before the lower court as her aunt’s next door neighbor and known and mentioned that he was known to her as Soko . The evidence of the complainant was that whenever she left for school, the appellant would call her, take her to his house and would place her on his bed, remove her underpants and do what she referred to as “tabia mbaya” to her. She also specifically mentioned that the appellant inserted his penis inside her vagina about 8 times over the period comprising 3 rd term of that year, between September and November 2019. She added that the appellant would thereafter give her Kshs. 10/= or Kshs. 20/= to buy sweets and pencils.
[11] PW1 further stated that, unknown to her, a neighbour by the name Grace saw the appellant holding her hand and leading her to his house and brought her suspicions to the attention of one of her teachers who, in turn, alerted her aunt. She was taken to hospital for examination; after which she was taken to Kosele Police Station.
[12] F A O (PW2) confirmed that the complainant is her niece; and that she was staying with her in September 2019. She also testified that she was 10 years old at the time and was going to Kosele Primary School. PW2 availed the complainant’s Certificate of Birth to back up her evidence about the minor’s age. It was also the testimony of PW2 that, while at her place of work on the 2 nd September 2019 she was summoned to the complainant’s school. She went there and found the complainant with Teacher Roseline ; and was informed by the teacher that her neighbor called Soko had been defiling the girl for some time. The girl was taken to Rachuonyo South Sub County Hospital for examination and treatment. The appellant was later arrested and charged.
[13] R O (PW3), a teacher at Kosele Primary School, confirmed that the complainant was one of the pupils at their school and that she was in Standard 2 in 2019. She further testified that, on the 2 nd October 2019, while on her way to the salon, she met Grace , also known as Mama Diana who reported to her that she had seen the complainant at the appellant’s house that morning. Since they knew that the complainant was staying with her aunt, she took a decision to notify the aunt, PW2, and thereafter caused the child to be taken to the Children Office for further protective action.
[14] Grace Anyango (PW4) testified that she was sitting at her doorstep, peeling potatoes when she saw the complainant entering the appellant’s house. She knew both the complainant and the appellant because she was a neighbor of both the complainant’s aunt and the appellant. She noted that the minor had overstayed in the appellant’s house for about 2 to 3 hours and immediately suspected foul play because the appellant lived alone in his house. She went to the appellant’s house and noted that he was not in the sitting room. She called his name and he responded from the bedroom. She engaged him in small talk before leaving. The child left thereafter. She reported to Teacher Roseline and when she interviewed the complainant, she disclosed that the appellant had been having sex with her. They took the child to the Children Office and alerted the complainant’s aunt.
[15] The Prosecution also called Kibet Serem (PW5), a Clinical Officer who was then working at Rachuonyo South Sub County Hospital. He testified that he was on duty on the 3 rd October 2019 when the complainant was brought to their facility on allegations of defilement. He examined her and confirmed that she had been defiled and infected with a sexually transmitted disease. He noted that, although her hymen was intact, the labia majora was inflamed, indicative of penile penetration. He however was of the opinion that the cause of the inflammation was the infection and not penetration.
[16] The last prosecution witness was PC Paul Kariuki , the investigating officer. He conducted the investigations in this matter jointly with PC Stephen Omweswa who was ailing at the time he testified, and was admitted in hospital. He confirmed that a report of defilement was made to their officer; and that upon conducting investigations, they gathered sufficient evidence to warrant the arrest and prosecution of the appellant. He was one of the police officers who arrested the appellant. He produced the Certificate of Birth of the complainant before the lower court as the Prosecution’s Exhibit 5.
[17] In his defence, the appellant admitted that he knew the complainant; and that she was staying at Kosele with her aunt who was his neighbor. He also confirmed that the complainant was then a pupil at Kosele Primary School. The appellant admitted that he touched the body of the minor and attempted to penetrate her vagina with his penis. He also admitted that he was aware and could clearly see that the child was 10 years old or below. He then concluded by telling the lower court that he was ready to abide by the sentence that the court would impose. He mentioned too that he was 80 years old at the time.
[18] In the light of the foregoing, the single issue for determination in this appeal is whether the offence of attempted defilement was proved beyond reasonable doubt. It is expedient to restate here below the provisions of Section 9 of the Sexual Offences Act for their full tenor and effect. The section stipulates thus in Sub-sections (1) and (2) thereof:
(1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”
[19] The word “attempt” is defined in Section 388(1) of the Penal Code as follows:
“where a person intending to commit an offence begins to put his intentions into execution by means adopted to its fulfillment, and manifests his intention by some avert 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 is prevented by circumstances independent of his will or whether he desists of his own motion from further prosecution of his intention.”
[20] Hence, in Abdi Ali Bere v Republic [2015] eKLR, in which the Court of Appeal had occasion to discuss the above provision, it held that:
“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. In the work quoted above by Smith & Hogan, the authors give the following scenario at page 291 to illustrate the distinction:
“D, intending to commit murder buys a gun and ammunition, does target practice, studies the habits of his intended victim, reconnoiters a suitable place to lie in ambush, puts on a disguise and sets out to take up his position. These are all acts of preparation but could scarcely be described as attempted murder. D takes up his position, loads the gun, sees his victim approaching, raises the gun, takes aim, puts his finger on the trigger and squeezes it. He has now certainly committed attempted murder…”
[21] In the premises, in order to prove the offence of attempted defilement against the appellant, the Prosecution needed to prove both the mens rea and as much of the actus reus that would show that he had put in motion his intention to defile the complainant, beyond mere preparation. This was well articulated in John Gatheru Wanyoike v Republic [2019] eKLR thus:
“It is clear that the elements of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the child was a minor, that there was an act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.”
[22] Thus, upon re-evaluation of the evidence presented before the lower court, the issues to determine in this appeal are:
[a] That the complainant was a minor for purposes of Section 2 of the Sexual Offences Act as read with Section 2 of the Children Act ;
[b] that some overt act towards achieving penetration was proved before the lower court; and,
[c] That the overt act was committed by the appellant.
A. On the age of the Complainant:
[23] Evidence was adduced before the lower court by the Prosecution to prove that the complainant was a minor aged 10 years; and that she was then in Standard 2 at Kosele Primary School. A copy of her Certificate of Birth was exhibited and it confirms that the minor was born on 10 th August 2009. For all intents and purposes, she was 10 years old at as at September 2019. It is also significant that the age of the minor was expressly conceded to expressly by the appellant.
[24] Hence, there was uncontroverted evidence placed before the lower court to prove beyond reasonable doubt that the complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
B. On attempted penetration:
[25] In this regard, the complainant testified that the appellant would call her to his house and place her on the bed and insert his penis in her vagina. In particular, she said this occurred 8 times before the matter came to light. When the minor was taken for examination it was confirmed by PW5 that she had been defiled and infected with a sexually transmitted disease. PW5 also noted that, although her hymen was intact, the labia majora was inflamed. He therefore concluded that the cause of the inflammation was the infection and not penetration. From the evidence of PW5, it is manifest that the examination took place the very day that the minor was seen by PW4 coming out of the house of the appellant after having spent about 2 to 3 hours there. He apparently was only interrupted by the intervention of PW4.
[26] In Kisii HCCRA No. 53 of 2009: Abraham Otieno v Republic , by Hon. Asike-Makhandia, J. (as he then was) thus:
“For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such a manner that there was no doubt at all as to what his intention was. The intention must be to rape the victim but was stopped in tracks and or in the nick of time. The intention to rape must be manifest. Such intention can be manifested by word of mouth or conduct of the culprit. If the culprit proclaims his intention of rape and directs his efforts towards that goal… but for one reason or another something happens which compels him to stop, again that would be good evidence of attempted rape…”
[27] I also find instructive the expressions of Spry J . (as he then was) in Mussa s/o Saidi v Republic [1962] E.A. 454 that:
“The principles of law involved are very simple but it is their application that is difficult. If the appellant intended to commit the offence of larceny and began to put his intention into effect and did some overt act which manifests that intention, he is guilty of attempted larceny. The burden on the prosecution is therefore first to prove the intention and secondly to prove an overt act sufficiently proximate to the intended offence. The intention will, in the majority of cases, only be capable of proof by inference and it follows in such cases that an act must be of such a character as to be incompatible with another reasonable explanation. Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence .” (emphasis supplied)
[28] It is therefore my finding that attempted penetration was proved beyond reasonable doubt in the circumstances.
C. On whether the offensive act was perpetrated by the appellant:
[29] It is indubitable, that this was a case of recognition of a person well-known to both the complainant, her aunt (PW2) and their neighbor (PW4). Moreover, the appellant, in his statement of defence did concede that he was well known to the complainant and PW2. That kind of identification cannot be said to be unreliable. In fact, it is now settled that there is some measure of assurance when dealing with the evidence of recognition. In the case of Anjononi & Another v Republic [1980] KLR 59 it was held that:
“...This was however, a case of recognition, not identification of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon personal knowledge of the assailant in some form or other. “
[30] Accordingly, I entertain no doubt at all that there was sufficient material, by way of evidence, that was presented before the lower court to connect the appellant with the crime. In arriving at this conclusion, I have given consideration to what the appellant referred to as contradictions and inconsistencies in the Prosecution case. I however do not find them so fundamental as to occasion a miscarriage of justice. Indeed, in Joseph Maina Mwangi v Republic Criminal Appeal No. 73 of 1992 , the Court of Appeal held that:
“An appellate court in considering those discrepancies must be guided by the wording of section 382 Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence”.
[31] And in the case of Jackson Mwanzia Musembe v Republic [2017] eKLR , the Court of Appeal had the following to say upon reviewing relevant precedents on the subject:
"Expounding on the issue of contradictions, the appellant stated that on the one hand, the minor testified that after she had been defiled she went back to the house and informed her mother, J K P (PW2), what had transpired. On the other hand, J testified that she heard noise coming from the latrine and she came out of the house. She found the appellant being held by some boys who informed her about the incident. As noted by the Uganda Court of Appeal in Twehangane Alfred vs. Uganda - Criminal Appeal No 139 of 2001, [2003] UGCA, 6 it is not every contradiction that warrants rejection of evidence. As that court put it:
“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.”
[32] Along the same lines, it was held in Philip Nzaka Watu v R [2016] eKLR thus:
“…it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
[33] Thus, having re-evaluated the evidence adduced before the lower court, I am satisfied that the elements of the offence of attempted defilement were proved to the requisite standard against the appellant.
[34] The sentence of 10 years that was imposed on the appellant was otherwise lawful and within the range prescribed by Section 9(2) of the Sexual Offences Act . It states:
“A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.”
[35] The constitutionality of minimum sentences has been settled by the Supreme Court. In R epublic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment), for instance, the Supreme Court held that:
Paragraphs 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions ( Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) ( Muruatetu decision ) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act, or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.
[36] In the result, I find no merit in the appeal, and it is hereby dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 31 ST DAY OF JULY, 2026