1. The respondent was charged with the offence of attempted Rape contrary to section 4 of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on the 26th day of August 2021 at around 1000hrs at Maviameu in Kilungu Sub County within Makueni County, the appellant intentionally and unlawfully attempted to cause his penis to penetrate the vagina of Sharon Ndunge Joseph without her consent.
2. The appellant pleaded not guilty and after a full trial, he was convicted and sentenced to 5 years’ imprisonment.
3. Aggrieved by that decision, the appellant filed this appeal on the following grounds;
a) That he pleaded not guilty to the offence.
b) That the learned trial magistrate erred in law and fact by failing to apply section 124 of the Evidence Act and failing to appreciate that the prosecution’s evidence was greatly uncorroborated.
c) That the learned trial magistrate erred in law and fact by shifting the burden of proof to the accused person thereby prejudicing him greatly.
d) That the learned trial magistrate erred in law and fact by convicting him without considering that there was no evidence to prove the offence of attempted rape to the required standard in law of beyond reasonable doubt.
e) That the learned trial magistrate erred in law and fact by failing to observe that the prosecution case was full of contradictions and inconsistencies coupled with poor police investigations which rendered the prosecution case unbelievable.
4. The prosecution’s case was that; on 26th August 2021 at 10am the complainant went to tie goats in the bush and as she was doing that, she heard footsteps behind her. She turned and saw, the appellant who was a neighbor. The appellant wanted to have sex with her but she refused and overpowered him. Her screams attracted her sister who went to the scene and the appellant fled. The sisters informed their mother and eventually reported to the police post. The complainant was treated at Kola hospital because her left hand was paining. Consequently, the appellant was arrested and prosecuted.
5. The prosecution called 4 witnesses to wit; the complainant (PW1), the complainant’s sister (PW2), the Clinical Officer (PW3) and the investigating officer (PW4). The P3 form was produced as (P. Ex 1).
6. The appellant gave unsworn evidence and did not call any witness. He testified that on 23rd August 2021 he woke up at 6am and escorted the child to school. He then went to his kiosk, took jerricans and went to fetch water at home. He found two girls cutting fodder for the cattle and told them that they were wasting fodder. They began to abuse him and to scream. They began to approach him but he proceeded to the river to fetch water. After 3 days on 26th August 2021, he was arrested in the morning and taken to Kivani police post.
7. Parties elected to canvass the appeal through written submissions and appropriate directions were given. Accordingly, the parties complied and filed their respective submissions.
8. The appellant submitted that no evidence was produced to show that he tried or attempted to insert his penis in the vagina or even touch the vagina of the complainant. That the evidence shows that he did not undress the complainant hence he could not have possibly attempted to insert his penis into her vagina while she was fully dressed. He relied on Kamunya –vs- R (2009) E.A 181 where the Court of Appeal held that any criminal charge against a person must state explicitly the nature of the offence charged and must refer to the specific law that creates the offence.
9. He submitted that when a court of law is faced with any charge on an attempted offence, care has to be taken to ensure that the attempt is proved as opposed to mere acts of preparation. Relying on section 388 of the Penal Code, he submitted that the two main ingredients of an attempted offence are the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention. He relied inter alia on Cheruiyot –vs – R (1976-1985) EA 47 where Madan JA (as he then was) stated;
“In order to constitute an offence contrary to section 220, it must be shown that the accused had a positive intention unlawfully to cause death. The essence of the offence is the intention to murder as it is presented by the prosecution”
10. He also relied on Abdi –vs- R [2015] eKLR where the Court of Appeal stated;
“The more challenging question in a charge of attempted murder is the actus reus of the offence, 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/her intention, it has 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.”
11. In order to illustrate the distinction between preparation and attempt, he relied on the text Criminal Law, Butterworths, 1998, 6th Edn at pg 288 where the authors wrote;
“D intending to commit a murder buys a gun and ammunition, does target practice, studies the habits of the intended victim, finds 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 hardly be described as attempted murder. However, 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 but misses the victim he has certainly committed attempted murder.”
12. He submitted that the prosecution failed to prove any mens rea or actus reus on his part and contended that for attempted rape to occur, the assailant has to act in a manner leaving no doubt that he had the intention to commit rape. It was also his contention that rape cannot occur when both parties are fully dressed. Further, he submitted that the complainant could not identify the colour of his pants and contended that it was practically impossible for him to remove his penis from the underwear without the complainant seeing its colour. The implication, he submitted, is that he did not remove his penis even if he had confronted the complainant.
13. He submitted that the complainant’s evidence that she had been harassed by him for some time shows that there may have been bad blood between them. He contended that the trial magistrate should have considered that possibility.
14. Relying on section 124 of the Evidence Act he submitted that when there is no corroboration and the court is left with an unbelievable testimony of one witness, the court must warn itself on using that evidence to convict otherwise, the decision becomes weak and may be overturned on appeal.
15. He submitted that the prosecution witnesses were untrustworthy. That the evidence of PW2 was too remote to be relied on and the injury stated by PW3 may have been caused while pulling a cow. He contended that the dismissal of his defense as a mere denial was greatly prejudicial.
16. The State, through Prosecution Counsel Margaret Muraguri, submitted that the appellant’s act of holding the complainant’s hand, telling her that he wanted to have sex with her, pinning her to the ground, trying to remove her clothes and removing his penis are proof of the offence of attempted rape. She submitted that the evidence of PW3 corroborated the complainant’s narrative on the pain sustained during the struggle with the appellant.
17. On identification of the appellant, she submitted that he was well known to the complainant and her sister and the evidence of the complainant was that he had been harassing her before the incident. She submitted that no evidence was tendered on the existence of a grudge between the appellant and complainant and that by giving unsworn evidence which could not be tested on cross examination, the appellant merely denied the offence.
18. It is now settled see Okeno v R and the thread of similar authorities, that the duty of a first appellate court is to reevaluate, re assess, re weigh and scrutinize the evidence on record, arrive at its own findings and draw its own conclusions. This must be in the context that the appellate court will be relying on the written text of the record as it neither saw nor heard the witnesses.
19. From the grounds of appeal, the entire record and the rival submissions, the issue for determination is whether the evidence on record proved the offence of attempted rape to the required standard.
Analysis and determination
Whether the offence was proved to the required standard.
20. Section 4 of the Sexual Offences Act defines the offence of attempted rape 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.”
21. The word attempt is not defined in the Sexual Offences Act as applicable to sexual offences. We have to rely on what case law says about section 388 of the Penal Code which states:
a) When a person intending to commit an offence, begins to put his intention into execution by means adapted to it 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.
b) 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.
c) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
22. In Abraham Otieno –vs- Republic [2011] eKLR, the court expressed itself as follows; -
“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 manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about 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 for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but does not go the whole hog because of factus interveniens, that would be good evidence of attempted rape. Alternatively, if the culprit without expressing his intentions verbally gets hold of the victim, fondles her, removes her clothes including her pants and also undresses himself in preparation thereof but for one reason or another something happens which compels him stop, again that would be good evidence of attempted rape.”
23. There is also Moses Kabue Karuoya –vs- R [2016] eKLR where the court) stated;
“…I reiterate that the key ingredients of the offence before me can be summarized as follows, namely, (a) Intent to commit the offence; From the evidence tendered, I find that intent was established. The second requirement is (b) the accused must begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve. Evidence tendered is that the appellant knocked her down, lied on her, lowered her panty & forcefully opened her legs. Lastly the accused must (c) Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence.”
24. From the foregoing, the ingredients of the offence can be distilled as;
a) Intention to commit the offence
b) The accused begins to put his intention into execution
c) The accused does an overt act which manifests his intention
25. In this case, the complainant’s evidence was as follows;
“On 26th August 2021 at 10am, I went to tie the goats in the bush and as I was tying I heard footsteps behind me. I turned to see it was Mutuku King’ola who is our neighbour. Before I spoke to him, He came and held my hands and told me he wanted to have sex with me. I refused and wanted to ran. He felled me to the ground and removed his penis even before undressing me. I struggled with him until I overpowered him. I scream and my sister E M who was at home came running to where I was. When Mutuku saw her, he ran away. My sister came and I told her that Mutuku wanted to rape me. I struggled with him. He had tried to remove my clothes. We returned home and when our mother came home in the evening, I told her what happened...”
26. PW3 Eric Kasiamani from Kilungu Sub County Hospital produced the P3. He told the court that SNJ complained of having been injured by a person known to her. Her left hand was swollen and had tenderness around the wrist joint. He filled the P3 on 31st August 2021. On cross examination he told the court that the complainant told him that the appellant had injured her. He told the court that he could not distinguish whether the injury was from being pulled by a cow or caused by a person.
27. A look at the P3 shows that the complainant told the Police and PW3 that she had been sexually harassed by a known person on 26th August 2021 and on 31st August when she was examined she had tenderness of the wrist joint caused by a blunt object.
28. PW2 EM, the 12-year-old sister of the complainant told the court that she was at home washing when she heard screams. She rushed there and saw that it was her sister. She said she saw Mutuku escaping. Her sister told her that Mutuku had tried to rape her, they went home and told their mother.
29. PW4 no. 111061 PC Robert Ruto from Kivani Police Post reiterated the evidence given by the complainant,
30. In his defence the appellant gave an unsworn statement of defence. He told the court that on the material day he found the two girls cutting fodder for cattle and he told them that they were was ting the cattle fodder. They began to insult him while approaching him and screaming. He ignored them and went to the river where he was going to fetch water. Three days later he was arrested and later charged.
31. To arrive at the determination of the issue the court assesses all the evidence together. The complainant told the court that the appellant went and told her he wanted to have sex with her and she refused. He then removed his penis from his trouser and began to wrestle her to the ground, in the process hurting her hand.
32. The report made to the police and the history to the clinical officer was recorded as sexual harassment. It is unfortunate that they did not get it because those are two different things. Haranguing her to her sex with him, and attempting to rape her are not the same thing. This is what the law says;
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.
33. Regarding Sexual Harassment Section 23 of the Sexual Offences Act states.
Sexual harassment
(1) Any person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both.
34. The evidence on record is that the appellant held the complainant’s hands and told her he wanted to have sex with her. She refused. Then wrestled her to the ground having already whipped out his penis from his trouser. There was a struggle where she was able to free herself from him while still screaming.
35. The appellant therefor made the intention known that he wanted to have sex with the complainant. By wrestling her to the ground with his penis already unleashed was a clear demonstration of what he wanted. His argument that he could not have unleashed his penis without removing his trouser cannot hold water because it is not an impossibility, men are seen doing the same when they stop by roadsides and next to bushes to urinate. How they do it I would not know but the learned trial court was not misguided in believing the complainant. The injury on the complainant’s hand is evidence of the struggle, and though her young sister did not witness the struggle she heard screams, and ran to the scene to find the struggle over, to see the appellant leaving.
36. It is therefore my view that this was beyond preparation, and was almost achieved.
37. The appellant told the court that the complainant and her sister insulted him and began screaming. Why would they scream if they were the ones insulting him? It does not make sense unless he did something to provoke the screams. There is nothing to show that the two had any issues with him that would make them scream at him.
38. The fact that the appellant had been haranguing the complainant for sex comes out from the evidence. The appellant wants the court to see that evidence as evidence of a grudge. On the contrary, this is not evidence of any grudge but evidence to show that the appellant had wanted sex from the complainant before this incident and the same had been repulsed. To me it appears to be the case of the appellant not accepting the complainant’s no!, for the no! it was. That in itself has consequences.
39. Clearly there for the offence of attempted rape was proved against the appellant and both the conviction and the sentence are upheld.
40. With regard to the sentence and to avoid the application for review under the proviso to s. 333(2) of the Criminal Procedure Code, I note that the appellant remained in custody the whole time and the learned trial court did not mention that in the sentence.
41. In the circumstances the sentence of 5 years imposed by the learned trial court will run from 1/9/2021
42. Otherwise the appeal is not merited and is dismissed.
2. The appellant pleaded not guilty and after a full trial, he was convicted and sentenced to 5 years’ imprisonment.
3. Aggrieved by that decision, the appellant filed this appeal on the following grounds;
a) That he pleaded not guilty to the offence.
b) That the learned trial magistrate erred in law and fact by failing to apply section 124 of the Evidence Act and failing to appreciate that the prosecution’s evidence was greatly uncorroborated.
c) That the learned trial magistrate erred in law and fact by shifting the burden of proof to the accused person thereby prejudicing him greatly.
d) That the learned trial magistrate erred in law and fact by convicting him without considering that there was no evidence to prove the offence of attempted rape to the required standard in law of beyond reasonable doubt.
e) That the learned trial magistrate erred in law and fact by failing to observe that the prosecution case was full of contradictions and inconsistencies coupled with poor police investigations which rendered the prosecution case unbelievable.
4. The prosecution’s case was that; on 26th August 2021 at 10am the complainant went to tie goats in the bush and as she was doing that, she heard footsteps behind her. She turned and saw, the appellant who was a neighbor. The appellant wanted to have sex with her but she refused and overpowered him. Her screams attracted her sister who went to the scene and the appellant fled. The sisters informed their mother and eventually reported to the police post. The complainant was treated at Kola hospital because her left hand was paining. Consequently, the appellant was arrested and prosecuted.
5. The prosecution called 4 witnesses to wit; the complainant (PW1), the complainant’s sister (PW2), the Clinical Officer (PW3) and the investigating officer (PW4). The P3 form was produced as (P. Ex 1).
6. The appellant gave unsworn evidence and did not call any witness. He testified that on 23rd August 2021 he woke up at 6am and escorted the child to school. He then went to his kiosk, took jerricans and went to fetch water at home. He found two girls cutting fodder for the cattle and told them that they were wasting fodder. They began to abuse him and to scream. They began to approach him but he proceeded to the river to fetch water. After 3 days on 26th August 2021, he was arrested in the morning and taken to Kivani police post.
7. Parties elected to canvass the appeal through written submissions and appropriate directions were given. Accordingly, the parties complied and filed their respective submissions.
8. The appellant submitted that no evidence was produced to show that he tried or attempted to insert his penis in the vagina or even touch the vagina of the complainant. That the evidence shows that he did not undress the complainant hence he could not have possibly attempted to insert his penis into her vagina while she was fully dressed. He relied on Kamunya –vs- R (2009) E.A 181 where the Court of Appeal held that any criminal charge against a person must state explicitly the nature of the offence charged and must refer to the specific law that creates the offence.
9. He submitted that when a court of law is faced with any charge on an attempted offence, care has to be taken to ensure that the attempt is proved as opposed to mere acts of preparation. Relying on section 388 of the Penal Code, he submitted that the two main ingredients of an attempted offence are the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention. He relied inter alia on Cheruiyot –vs – R (1976-1985) EA 47 where Madan JA (as he then was) stated;
“In order to constitute an offence contrary to section 220, it must be shown that the accused had a positive intention unlawfully to cause death. The essence of the offence is the intention to murder as it is presented by the prosecution”
10. He also relied on Abdi –vs- R [2015] eKLR where the Court of Appeal stated;
“The more challenging question in a charge of attempted murder is the actus reus of the offence, 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/her intention, it has 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.”
11. In order to illustrate the distinction between preparation and attempt, he relied on the text Criminal Law, Butterworths, 1998, 6th Edn at pg 288 where the authors wrote;
“D intending to commit a murder buys a gun and ammunition, does target practice, studies the habits of the intended victim, finds 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 hardly be described as attempted murder. However, 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 but misses the victim he has certainly committed attempted murder.”
12. He submitted that the prosecution failed to prove any mens rea or actus reus on his part and contended that for attempted rape to occur, the assailant has to act in a manner leaving no doubt that he had the intention to commit rape. It was also his contention that rape cannot occur when both parties are fully dressed. Further, he submitted that the complainant could not identify the colour of his pants and contended that it was practically impossible for him to remove his penis from the underwear without the complainant seeing its colour. The implication, he submitted, is that he did not remove his penis even if he had confronted the complainant.
13. He submitted that the complainant’s evidence that she had been harassed by him for some time shows that there may have been bad blood between them. He contended that the trial magistrate should have considered that possibility.
14. Relying on section 124 of the Evidence Act he submitted that when there is no corroboration and the court is left with an unbelievable testimony of one witness, the court must warn itself on using that evidence to convict otherwise, the decision becomes weak and may be overturned on appeal.
15. He submitted that the prosecution witnesses were untrustworthy. That the evidence of PW2 was too remote to be relied on and the injury stated by PW3 may have been caused while pulling a cow. He contended that the dismissal of his defense as a mere denial was greatly prejudicial.
16. The State, through Prosecution Counsel Margaret Muraguri, submitted that the appellant’s act of holding the complainant’s hand, telling her that he wanted to have sex with her, pinning her to the ground, trying to remove her clothes and removing his penis are proof of the offence of attempted rape. She submitted that the evidence of PW3 corroborated the complainant’s narrative on the pain sustained during the struggle with the appellant.
17. On identification of the appellant, she submitted that he was well known to the complainant and her sister and the evidence of the complainant was that he had been harassing her before the incident. She submitted that no evidence was tendered on the existence of a grudge between the appellant and complainant and that by giving unsworn evidence which could not be tested on cross examination, the appellant merely denied the offence.
18. It is now settled see Okeno v R and the thread of similar authorities, that the duty of a first appellate court is to reevaluate, re assess, re weigh and scrutinize the evidence on record, arrive at its own findings and draw its own conclusions. This must be in the context that the appellate court will be relying on the written text of the record as it neither saw nor heard the witnesses.
19. From the grounds of appeal, the entire record and the rival submissions, the issue for determination is whether the evidence on record proved the offence of attempted rape to the required standard.
Analysis and determination
Whether the offence was proved to the required standard.
20. Section 4 of the Sexual Offences Act defines the offence of attempted rape 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.”
21. The word attempt is not defined in the Sexual Offences Act as applicable to sexual offences. We have to rely on what case law says about section 388 of the Penal Code which states:
a) When a person intending to commit an offence, begins to put his intention into execution by means adapted to it 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.
b) 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.
c) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
22. In Abraham Otieno –vs- Republic [2011] eKLR, the court expressed itself as follows; -
“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 manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about 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 for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but does not go the whole hog because of factus interveniens, that would be good evidence of attempted rape. Alternatively, if the culprit without expressing his intentions verbally gets hold of the victim, fondles her, removes her clothes including her pants and also undresses himself in preparation thereof but for one reason or another something happens which compels him stop, again that would be good evidence of attempted rape.”
23. There is also Moses Kabue Karuoya –vs- R [2016] eKLR where the court) stated;
“…I reiterate that the key ingredients of the offence before me can be summarized as follows, namely, (a) Intent to commit the offence; From the evidence tendered, I find that intent was established. The second requirement is (b) the accused must begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve. Evidence tendered is that the appellant knocked her down, lied on her, lowered her panty & forcefully opened her legs. Lastly the accused must (c) Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence.”
24. From the foregoing, the ingredients of the offence can be distilled as;
a) Intention to commit the offence
b) The accused begins to put his intention into execution
c) The accused does an overt act which manifests his intention
25. In this case, the complainant’s evidence was as follows;
“On 26th August 2021 at 10am, I went to tie the goats in the bush and as I was tying I heard footsteps behind me. I turned to see it was Mutuku King’ola who is our neighbour. Before I spoke to him, He came and held my hands and told me he wanted to have sex with me. I refused and wanted to ran. He felled me to the ground and removed his penis even before undressing me. I struggled with him until I overpowered him. I scream and my sister E M who was at home came running to where I was. When Mutuku saw her, he ran away. My sister came and I told her that Mutuku wanted to rape me. I struggled with him. He had tried to remove my clothes. We returned home and when our mother came home in the evening, I told her what happened...”
26. PW3 Eric Kasiamani from Kilungu Sub County Hospital produced the P3. He told the court that SNJ complained of having been injured by a person known to her. Her left hand was swollen and had tenderness around the wrist joint. He filled the P3 on 31st August 2021. On cross examination he told the court that the complainant told him that the appellant had injured her. He told the court that he could not distinguish whether the injury was from being pulled by a cow or caused by a person.
27. A look at the P3 shows that the complainant told the Police and PW3 that she had been sexually harassed by a known person on 26th August 2021 and on 31st August when she was examined she had tenderness of the wrist joint caused by a blunt object.
28. PW2 EM, the 12-year-old sister of the complainant told the court that she was at home washing when she heard screams. She rushed there and saw that it was her sister. She said she saw Mutuku escaping. Her sister told her that Mutuku had tried to rape her, they went home and told their mother.
29. PW4 no. 111061 PC Robert Ruto from Kivani Police Post reiterated the evidence given by the complainant,
30. In his defence the appellant gave an unsworn statement of defence. He told the court that on the material day he found the two girls cutting fodder for cattle and he told them that they were was ting the cattle fodder. They began to insult him while approaching him and screaming. He ignored them and went to the river where he was going to fetch water. Three days later he was arrested and later charged.
31. To arrive at the determination of the issue the court assesses all the evidence together. The complainant told the court that the appellant went and told her he wanted to have sex with her and she refused. He then removed his penis from his trouser and began to wrestle her to the ground, in the process hurting her hand.
32. The report made to the police and the history to the clinical officer was recorded as sexual harassment. It is unfortunate that they did not get it because those are two different things. Haranguing her to her sex with him, and attempting to rape her are not the same thing. This is what the law says;
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.
33. Regarding Sexual Harassment Section 23 of the Sexual Offences Act states.
Sexual harassment
(1) Any person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both.
34. The evidence on record is that the appellant held the complainant’s hands and told her he wanted to have sex with her. She refused. Then wrestled her to the ground having already whipped out his penis from his trouser. There was a struggle where she was able to free herself from him while still screaming.
35. The appellant therefor made the intention known that he wanted to have sex with the complainant. By wrestling her to the ground with his penis already unleashed was a clear demonstration of what he wanted. His argument that he could not have unleashed his penis without removing his trouser cannot hold water because it is not an impossibility, men are seen doing the same when they stop by roadsides and next to bushes to urinate. How they do it I would not know but the learned trial court was not misguided in believing the complainant. The injury on the complainant’s hand is evidence of the struggle, and though her young sister did not witness the struggle she heard screams, and ran to the scene to find the struggle over, to see the appellant leaving.
36. It is therefore my view that this was beyond preparation, and was almost achieved.
37. The appellant told the court that the complainant and her sister insulted him and began screaming. Why would they scream if they were the ones insulting him? It does not make sense unless he did something to provoke the screams. There is nothing to show that the two had any issues with him that would make them scream at him.
38. The fact that the appellant had been haranguing the complainant for sex comes out from the evidence. The appellant wants the court to see that evidence as evidence of a grudge. On the contrary, this is not evidence of any grudge but evidence to show that the appellant had wanted sex from the complainant before this incident and the same had been repulsed. To me it appears to be the case of the appellant not accepting the complainant’s no!, for the no! it was. That in itself has consequences.
39. Clearly there for the offence of attempted rape was proved against the appellant and both the conviction and the sentence are upheld.
40. With regard to the sentence and to avoid the application for review under the proviso to s. 333(2) of the Criminal Procedure Code, I note that the appellant remained in custody the whole time and the learned trial court did not mention that in the sentence.
41. In the circumstances the sentence of 5 years imposed by the learned trial court will run from 1/9/2021
42. Otherwise the appeal is not merited and is dismissed.