Introduction
1. The Appellant, Johnstone Wahumsama was convicted of attempted defilement contrary to section 9 of the Sexual Offences Act, No 3 of 2006. On 8th March 2024, the Appellant was sentenced to ten (10) years imprisonment.
2. The Appellant had been charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on the 12th day of November 2023 at Mamboleo Coptic Area in Kisumu East Sub-County in Kisumu County, unlawfully and intentionally caused his penis to penetrate the vagina of I.A.O, a child aged 15 years.
3. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, Cap. 63A, the particulars being that on the 12th day of November 2023 at Mamboleo Coptic Area in Kisumu East Sub-County in Kisumu County, intentionally touched the buttocks and waist of I.A.O, a child aged 15 years.
The Appeal
4. The Appellant challenges the conviction and the sentence vide an Amended Petition of Appeal filed on 17th October 2022, raising the following five main grounds; -
i. That the trial court erred in law and fact in not finding that the prosecution failed to prove the ingredients of Attempted defilement beyond reasonable doubt.
ii. That the trial court erred in law and fact in not weighing out the conflicting evidence highlighted in the prosecution case.
iii. That the trial court erred in law and fact in not considering that the sentence imposed is against the weight of the evidence adduced.
iv. That the mandatory nature of the sentence of attempted defilement under the Sexual Offences Act is unconstitutional and not warranted.
v. That the trial court erred in law and fact in not considering the appellant's defense despite the same being cogent and unshaken.
5. The appeal was canvassed on 12th November 2024. The Respondent argued the appeal orally in court while Ms. Adongo, Counsel for the Appellant, on her part chose to rely on their written submissions dated 19th July 2024.
Appellant’s Submissions
6. It was submitted on behalf of the Appellant that essential ingredients of the offence of defilement were not proved. According to the Appellant, the trial court erred in failing to find that the fact of penetration was not proven. That PW1 (the complainant), although declared a hostile witness, in her evidence, denied being defiled by the Appellant. That the order of conviction was made by the court despite the complainant categorically stating that she did not have sex with the Appellant.
7. It was further submitted on behalf of the Appellant that the evidence of PW2 who produced P3 and PRC forms stated that she noticed a bruise, but did not explain the age of the bruise. She also stated that during examination and interaction with the complainant, she denied being defiled by the accused. That the medical officer did not also comment on the results from samples taken from the accused. That there no mention was made by the prosecution witness that the results from the vaginal swab taken from the complainant, matched the sample taken from the Appellant.
8. On identification of the perpetrator, the Appellant submitted that while PW1 and PW3 testified that the Appellant was their neighbour and therefore known to them, the witnesses, however, did not positively identify the Appellant as being the perpetrator of the offence in question.
9. The Appellant further submitted that the trial court erred in convicting the Appellant on a lesser offence of attempted defilement (contrary to section 9 of the Sexual Offences Act) for which he was not charged. While acknowledging the discretionary power of a trial court under section 179 of the Criminal Procedure Code to charge an accused with a cognate offence, the Appellant submitted that the requisite pre-conditions for exercising that power/discretion were not met by the court in the instant case. That while the cognate offence with which the Appellant was convicted is one is similar to the first count the Appellant was charged with, the requirement that all the ingredients of the cognate offence were not proven.
10. Citing the case of Benson Musumbi v Republic [2019] eKLR, the Appellant maintained that the prosecution was required to prove all the ingredients of the main charge (defilement), except that of penetration. In the instant case, the Appellant submitted that the prosecution did prove the age of the victim and the identity of the perpetrator.
Respondents Submissions
11. The Respondent orally argued this appeal before this Court on 12th November 2024 and opposed the appeal, both on conviction and on sentence. No written submissions were filed by the Respondent.
12. On whether the trial court erred in Application of 179 of the Criminal Procedure Code, the Respondent submitted that the trial magistrate correctly invoked it as it operated downwards and not upwards as is required by the law. It was further the Respondent’s submissions that all the ingredients of attempted defilement were proved beyond reasonable doubt at trial by the prosecution through the testimony of PW1, the complainant.
13. Regarding the age of the victim, the Respondent submitted that age of the victim was proved by the production of the victim’s birth certificate which showed that the victim was born on 2nd January 2008. That she was 15 years old at the time of the commission offence and therefore a minor.
14. On identification, the Respondent maintained that the evidence submitted by the prosecution at trial positively identified the Appellant as the perpetrator of the offence in question.
15. Consequently, the Respondent urged this court to find no merit in the appeal, dismiss the same, and uphold the conviction and sentence by the trial court.
Analysis and Determination
16. I have considered the appeal and submissions by both parties. I have also read the record of the trial court and the impugned judgment.
17. This being a first appeal, this court is obligated to revisit and re-evaluate the evidence afresh, assess the same, and make its own conclusions, bearing in mind that, unlike the trial court, this Court did not have the advantage of hearing and observing the demeanor of the witnesses. (See Okeno v Republic [1972] E.A 32).
18. The Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336, while commenting on the duty of the first appellate court stated as follows: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
19. This Court is equally aware that this being a criminal case, the standard of proof required is that of beyond any reasonable doubt and that the same is a burden placed by law on the prosecution. In Elizabeth Waithiegeni Gatimu vs. Republic [2015] eKLR, the court (Mativo, J, as he then was) expressed himself on the issue as hereunder: -
“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”
20. Guided by the above general principles, I now turn to the instant appeal. The issues that arise for determination in this appeal are; -
i. Whether all the ingredients of the cognate offence (attempted defilement) were proved beyond reasonable doubt.
ii. Whether the sentence meted out to the Appellant was harsh and excessive.
Whether all the ingredients of the cognate offence (attempted defilement) were proved beyond reasonable doubt
21. The gist of the Appellant’s argument on this issue is that the trial magistrate erred in law when she acquitted the Appellants of the offence of defilement and then proceeded to convict on the offence of Attempted defilement. To the Appellant, while the trial court had the discretion under Section 179 of the Criminal Procedure Code to convict with the offence of attempted defilement (which he admits is cognate to the offence of defilement), it is, however, the Appellant’s position that all the ingredients of the cognate offence (attempted defilement) were not proved by the prosecution to the standards required in law.
22. Section 179 of the Criminal Procedure Code provides as follows; -
“179. When offence proved is included in offence charged.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it”.
23. From the above provisions of the law, it is evident that the Application of the said section requires that; -
i. The offence charged constituted several particulars.
ii. The proved combination of some only constitutes a minor offence.
24. The Appellant submitted that in a case of attempted defilement, all the ingredients of the offence of defilement (which he was charged with) except the fact of penetration are by law required to be proved by the prosecution, beyond reasonable doubt.
25. It is not disputed by the parties in this appeal that for the court to apply Section 179 of the Criminal Procedure Code the two offences must be cognate. In addition, the offence that the accused is convicted of must be a lesser offence.
26. The Court of Appeal in Robert Mutungi Muumbi v Republic 2015 eKLR stated as follows; -
“As is apparently clear, section 179 of the Criminal Procedure Code empowers a court, in some particular special circumstances, to convict an accused person of an offence, even though he was not charged with that offence. The court contemplated by section 179 can be either the trial court or the appellate court.”
27. The term cognate offence is defined by Black’s Law Dictionary to mean “A lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category.” The Appellant concedes that attempted defilement with which he was convicted, is indeed a cognate and lesser offence to the offence of defilement with which he was charged with.
28. The only issue the Appellant has with the conviction is that the prosecution did prove beyond reasonable doubt the key ingredients of the offence of attempted defilement with which he was convicted.
29. Section 9 of the Penal Code defines attempted defilement as follows; -
“9. Attempted defilement
(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.
(3) The provisions of section 8(5), (6), (7) and (8) shall apply mutatis mutandis to this section.”
30. In the case of Benson Musumbi v Republic [2019] eKLR the court considered what should be proved regarding the ingredients of the offence of defilement. It stated thus: -
“The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is as if it were a failed defilement because there was no penetration.”
31. Further in John Gatheru Wanyoile v Republic[2019] eKLR the court reiterated as follows:
“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.”
32. In the circumstances, for a charge of attempted defilement to be sustained, the prosecution has to prove to the required standards, the following ingredients of the offence; -
i. The age of the complainant
ii. The over act – steps taken by the assailant to execute the defilement which did not succeed.
iii. Positive identification of the assailant
33. With regard to the complainant’s age, I note that the complainant (A.O.O.) testified on 15th November 2023 and told the court that she was 15 years old. This evidence by the victim was corroborated by the evidence of PC Ronald Ochuka, the investigating officer, who testified as PW4 on 7th December 2023, and upon being recalled, on 23rd January 2024. PW4 produced the birth certificate (Pexh 3) which indicated that the victim was born on 2nd January 2008, making the victim 15 years old then. In my view, with the evidence on record, I am convinced that the prosecution indeed proved beyond any reasonable doubt that the victim was a child aged 15 years old at the time of the alleged incident.
34. On the issue of the attempt to defile, this court noted that the Sexual Offences Act does not define the term “attempt”. However, Section 388 of the Penal Code defines the term as follows: -
i. 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.
ii. 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.
iii. It is immaterial that by reason of circumstances not known to the offender, it is impossible in fact to commit the offence.
35. From the evidence on record, I note that PW1 in her testimony stated that on her way back from church, she passed by the Appellant’s house. That upon arrival at the Appellant’s house, the Appellant who was in the house asked her to cook so that they could eat. That after eating, the Appellant went to sleep on his bed and asked the complainant to join him in the bed. The Appellant while holding the complainant's hand asked her to remove the church gown (kanzu) and join him in bed. He wanted sex but she refused.
36. It was further the testimony of PW1 that after some time, the landlady to the Appellant came to the house and that when the door was knocked, the Appellant asked her to cover herself with a bed sheet and go to sleep on the floor. She however denied having sex with the Appellant.
37. The medical evidence by PW2, Kezia Tanui, the clinical officer was that the genital examination of the complainant revealed normal outer genitalia and a bruise on the 6 o’clock in the vaginal area and that the hymen was broken.
38. From the provisions of Section 388 of the Penal Code, it is necessary to prove by way of evidence that an accused undertook some steps and did some act or acts which would show that there was an intention on the part of the person to commit the offence in question, but failed to complete the offence.
39. As to whether there was an act to cause penetration that was not successful, the Court in the case of Benson Musumbi v Republic [2019] eKLR stated that: -
“In order to prove an attempt to commit an offence, the prosecution must prove the mens rea which is the intention, and the actus reus which constitute the overt act which is geared to the execution of the intention. The actus reus must be more than mere preparation to commit the act as there is a difference between mere preparation to commit an offence and attempting to commit an offence.”
40. Furthermore, in Daniel Simiyu Wanyonyi v R [2019] eKLR it was held that:
“This Court when dealing with an appeal from a conviction of attempted defilement in Bungoma HC. Cri. Appeal No. 176 of 2016 stated; when a court of law is faced with any charge on an attempted offence, care has to be taken to ensure that the attempt, as opposed to mere acts of preparation, is proved since however strong the evidence may be if it only relates to actions in preparation to commit a certain crime, that cannot justify a conviction on an attempted charge. In the circumstance or clarity purposes, the evidence must be led which goes beyond the preparatory stages and right to the doorstep of possible commission of the offence. It ought to be demonstrated that the accused had committed the last act to the actual commission of the specific offence attempted. Likewise, the intention to commit the crime must also be proved.”
41. From the evidence available and guided by Section 388 of the Penal Code, I do not agree with the trial court that the offence of attempted defilement was proved by the prosecution to the required standards. From the testimony of the complainant, there is no evidence that the Appellant touched her innerwear or her private parts. There is also no evidence from PW1 that she saw the Appellant’s penis.
42. Further the medical evidence submitted by the clinical officer (PW2) who examined the complainant did not reveal any evidence of attempted defilement. According to the witness, the complainant had normal external genitalia.
43. From the evidence on record, it is clear that the Appellants might have been preparing to commit the act, but had not attempted to commit the act.
44. As was held in the case of Benson Musumbi v Republic [2019] eKLR the prosecution needed to prove both the mens rea which is the intention, and the actus reus which constitute the overt act which is geared to the execution of the intention.
45. In this case, while the evidence by the prosecution only appeared to prove mens rea, no evidence on the actus reus was adduced by the prosecution. It is settled that attempt to commit an offence, is more than mere preparation to commit the act, as there is a difference between mere preparation to commit an offence and attempting to commit an offence.
46. In the circumstances, it is therefore the finding of this court that attempted penetration was not proved by the prosecution.
Determination
47. Accordingly, I find and hold that the Appellant's conviction was unsafe. I hereby quash the conviction and set aside the sentence of ten years imprisonment imposed on the Appellant by the trial court.
48. The Appellant is hereby set at liberty forthwith unless otherwise lawfully held under another warrant.
49. It is so ordered.
SIGNED, DATED, AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH DAY OF FEBRUARY 2025
ADO MOSES
JUDGE
In the Presence of: -
C/A………. Moses
………………….for the Appellant
………………for the Respondent