(Being an appeal against the Judgment of Hon. P.N. Gesora, Chief Magistrate, in Makueni CM Criminal Case No. E398 of 2023 delivered on 25 th May, 2024)
1. The Appellant was charged with three counts before the magistrates’ court;
Count I – Burglary contrary to Section 304 (2) of the Penal Code;
Particulars being that on the night of 27 th August, 2023, at around 1.00 a.m. in Ndauni Village, Mwau Location in Makueni Sub-County, the Appellant broke into and entered the dwelling house of Mary Kamene Matheka.
Count II – Attempted rape contrary to Section 4 of the Sexual Offences Act; Particulars being that on the same date, time and place, the Appellant intentionally and unlawfully attempted to cause his penis to penetrate the vagina of Mary Kamene Matheka without her consent.
Count III – Assault causing actual bodily harm, contrary to Section 251 of the Penal Code; Particulars being that on the same date, time and place, the Appellant unlawfully assaulted Mary Kamene Matheka thereby occasioning her actual bodily harm.
2. The Appellant entered a plea of not guilty, and the matter proceeded to trial. The prosecution called seven witnesses, and the Appellant was put on his defence, and he gave a sworn defence. He did not call any witnesses.
3. At the close of the trial, the trial Court found the Appellant guilty of the three counts and convicted him to 2 years imprisonment on count I, 5 years imprisonment on count II and 1 year imprisonment on count III. The sentences are running consecutively.
4. Dissatisfied with the conviction and sentence, he lodged a petition of appeal raising the following grounds:
I. That the learned magistrate erred in law and in fact by failing to evaluate the evidence tendered by the prosecution and the defence before arriving at his judgment;
II. That the learned magistrate erred in law and in fact by failing to take into consideration the numerous contradictory evidence by the prosecution witnesses before arriving at his judgment;
III. That the learned magistrate erred in law and in fact by failing to appreciate the evidence by the appellant particularly the evidence that he cannot have possibly committed the offence he was charged with’
IV. That the learned magistrate erred in law and in fact by holding that the appellant was properly identified;
V. That the learned magistrate erred in law and in fact in holding that the three counts were proven beyond reasonable doubt when there was no evidence to support the same;
VI. That the learned magistrate erred in law and in fact in holding the three counts as proven beyond reasonable doubt, whereas none of the ingredients of the three counts were proved beyond the required standard;
VII. That the learned magistrate erred in law and in fact by hurriedly proceeding to convict the appellant and to impose a severe sentence.
5. The Appellant filed submissions. He submitted that the evidence adduced was riddled with contradictions and inconsistencies and that it was unsafe to rely on it to convict him. He highlighted the evidence regarding his identification, the place of recovery of items, the sequence of events as narrated, and his arrest.
6. The Appellant submitted further that the prosecution had shifted the burden of proof to him and that the trial Court had failed to analyse the various offences and asked the Court to quash the conviction and set aside the sentence.
7. The Respondent submitted that the conviction was both correct and justified, and that the sentence was lawful. The respondent maintained that there are no grounds for the appellate Court to interfere with either the conviction or the sentence.
8. It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
9. I have analyzed the evidence that was tendered in the trial Court by both the Appellant and the prosecution, the grounds of appeal, and the written submissions. The issues for determination are two-pronged;
i. Whether the prosecution proved their case to the required threshold, and;
ii. Whether the sentence was appropriate.
10. PW1 was the Complainant. She testified that she was asleep at home when someone struck her door, causing it to give way. She testified that she raised the alarm and identified the Appellant as the assailant. According to PW1 , a struggle ensued between them as he began removing his trousers and during the struggle, she grabbed his genitals, and he bit her on the head before running away.
11. PW2, PW3 , and PW4 testified that they are neighbours who lived in close proximity to one another, and that they had responded to the distress screams at the Complainant’s home that night.
12. PW6 , one of the Complainant’s daughters, testified that she was at home with her sister in one of the rooms when the assailant entered and ordered her sister to turn off the flashlight before returning to their mother’s room (PW1). PW6 stated that at that moment she and her sister managed to escape from the house and went to a neighbour’s place, who raised alarm by screaming. PW6 stated that she identified the Appellant as the assailant and confirmed that he was known to her as their neighbour.
13. The Appellant stated in his defence denied the charges and stated that he was at home when the Complainant, accompanied by her brothers, came to his house and took him to the police station, claiming that he had broken into her house.
14. The investigating officer testified that he visited the scene and found that the door had been damaged, which is how the assailant gained access. According to the officer, a jacket and a set of keys were recovered from the scene by members of the public who traced the Appellant to his house and then escorted him to the police station.
15. After reviewing the testimonies of the prosecution witnesses, I am convinced that an incident took place on the specified date at approximately 1:00 a. At that time, the Complainant was at home with her daughters. The neighbours who rushed to their aid after hearing their cries for help also testified in the case, adding to the credibility of the events that unfolded that night.
16. The key question to determine is whether the Appellant was the assailant and what exactly occurred at the scene.
17. On identification, it is undisputed that the Appellant was apprehended on the same night the incident occurred. He was apprehended by members of the public who then escorted him to the nearby police post. The Complainant testified that her daughter used a flashlight, which illuminated the room during the incident, which allowed her to see the identity of the assailant. She testified that a physical struggle ensued between her and the assailant, giving her an opportunity to clearly see the Appellant and the apparel, which she described as a yellowish T-shirt.
18. The Complainant gave a detailed description of the events and what followed thereafter, and that after the confrontation, the Appellant fled the scene.
19. The testimony from the neighbours provides strong support for the search conducted and confirms that the keys recovered were verified as belonging to the Appellant’s house. I took into account the Appellant’s argument that there were inconsistencies regarding the location from which these items were retrieved. However, PW4 asserted that she personally found the keys on the road while rushing to respond to cries for help from PW1’s home. This detail adds context to the recovery of the items.
20. While the Appellant claims in his defence that his arrest was unrelated to the events of that night, the prosecution evidence shows he was at the scene, and the testimonies are corroborated. The defence is displaced by the strong prosecution evidence. I am persuaded that the Appellant was positively identified as the assailant.
21. Going by the counts one by one, in the first count of Burglary, Section 304 of the Penal Code stipulates as follows: -
304. Housebreaking and burglary
1. Any person who—
a. breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or
b. having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.
2. If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
22. The ingredients of the offence of burglary are similar to those of housebreaking save for the fact that burglary occurs at night. In Anthony Kilonzo Mutuku v Republic [2019] eKLR, Odunga J. (as he then was) outlined the ingredients of the offence as follows: -
“In my view, section 304(1)(a) deals with three scenarios. The first scenario is where a person breaks and enters into a building, tent or vessel used as a human dwelling with intent to commit a felony therein. The ingredients here are that the person must break and enter into a building, tent or vessel. That building, tent or vessel must be one that is used as a human dwelling and the entry therein must be with the intention of committing a felony therein. Therefore, even without committing any offence therein, the offence thereunder is complete as long as the intent is proved. However, section 304(1)(b) applies where the person, being already inside the building, tent or vessel used as a human dwelling with intent to commit a felony therein, breaks out thereof. Therefore, once it is proved that a person was inside the building, tent or vessel used as a human dwelling and harbouring the intention of committing a felony, breaks out thereof, the offence is complete without necessarily committing an offence. The last scenario is still under section 304(1)(b) but here, the person, being already inside the building, tent or vessel used as a human dwelling with or without intent to commit a felony therein, does commit a felony therein and breaks out thereof. So under section 304(1)(a), the breaking is for purposes of gaining ingress while section 304(1)(b), the breaking is for purposes of egress.”
23. The incident herein occurred at night. There is evidence supporting that there was a forceful entry into the Complainant’s house, the investigation officer testified that the door had been damaged, and that is how the Appellant had gained access. I therefore find that the prosecution did prove the offence of Burglary against the appellant to the required standard.
24. On the second count of attempted rape, Section 4 of the Sexual Offences Act provides: -
“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.”
25. From the above section, the prosecution is required to prove the identity of the perpetrator and the steps taken by the perpetrator to attempt to commit the intentional and unlawful act of rape.
26. In the case of Njau v Republic, Criminal Appeal No. 130 of 1992 [1993] eKLR, it was held that any crime of attempt consists of the following elements: -
(a) an intent to commit the crime,
(b)an overt act towards its commission,
(c)the failure to complete the crime, and
(d)the apparent possibility of committing it.
27. In cases of attempted rape, the Court assesses the actions that demonstrate a resolve to achieve sexual penetration despite resistance or lack of consent.
28. The Complainant testified that the Appellant began to remove his trousers and threatened to rape her. This behaviour suggests an intention to commit rape, and during the struggle, the Complainant reportedly grasped the Appellant’s genitals, forcing him to retreat; he fled after biting her on the face.
29. The ingredients of the offence of attempted rape were proved to the required standard.
30. On the third count of assault causing actual bodily harm, the treatment notes and P3 form further confirmed that the Complainant sustained a human bite to the face. The injuries were assessed as bodily harm.
31. From the findings, I conclude that the trial court was not in error in finding the Appellant guilty of burglary, attempted rape, and assault causing actual bodily harm.
Sentencing
32. Burglary carries a maximum sentence of up to ten years, and the Appellant was sentenced to two years for this offence. Attempted rape has a minimum sentence of five years, which is the sentence the Appellant received. Assault causing actual bodily harm has a maximum sentence of up to five years, and the Appellant was sentenced to one year for this offence. Each of these offences is distinct, and the sentences were ordered to run consecutively.
33. The sentences are lawful. The magistrate considered the pre-sentence report, the Appellant’s mitigation, and the general circumstances of the case. I find no reason to interfere with the decision.
34. In conclusion, I find that the appeal has no merit. The conviction is upheld, and the sentences are affirmed.
35. It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 06th day of FEBRUARY, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant - Beryl
Applicant present
Mr. Mutuku, Advocate for the Appellant
Ms. Mutua, ODPP
1. The Appellant was charged with three counts before the magistrates’ court;
Count I – Burglary contrary to Section 304 (2) of the Penal Code;
Particulars being that on the night of 27 th August, 2023, at around 1.00 a.m. in Ndauni Village, Mwau Location in Makueni Sub-County, the Appellant broke into and entered the dwelling house of Mary Kamene Matheka.
Count II – Attempted rape contrary to Section 4 of the Sexual Offences Act; Particulars being that on the same date, time and place, the Appellant intentionally and unlawfully attempted to cause his penis to penetrate the vagina of Mary Kamene Matheka without her consent.
Count III – Assault causing actual bodily harm, contrary to Section 251 of the Penal Code; Particulars being that on the same date, time and place, the Appellant unlawfully assaulted Mary Kamene Matheka thereby occasioning her actual bodily harm.
2. The Appellant entered a plea of not guilty, and the matter proceeded to trial. The prosecution called seven witnesses, and the Appellant was put on his defence, and he gave a sworn defence. He did not call any witnesses.
3. At the close of the trial, the trial Court found the Appellant guilty of the three counts and convicted him to 2 years imprisonment on count I, 5 years imprisonment on count II and 1 year imprisonment on count III. The sentences are running consecutively.
4. Dissatisfied with the conviction and sentence, he lodged a petition of appeal raising the following grounds:
I. That the learned magistrate erred in law and in fact by failing to evaluate the evidence tendered by the prosecution and the defence before arriving at his judgment;
II. That the learned magistrate erred in law and in fact by failing to take into consideration the numerous contradictory evidence by the prosecution witnesses before arriving at his judgment;
III. That the learned magistrate erred in law and in fact by failing to appreciate the evidence by the appellant particularly the evidence that he cannot have possibly committed the offence he was charged with’
IV. That the learned magistrate erred in law and in fact by holding that the appellant was properly identified;
V. That the learned magistrate erred in law and in fact in holding that the three counts were proven beyond reasonable doubt when there was no evidence to support the same;
VI. That the learned magistrate erred in law and in fact in holding the three counts as proven beyond reasonable doubt, whereas none of the ingredients of the three counts were proved beyond the required standard;
VII. That the learned magistrate erred in law and in fact by hurriedly proceeding to convict the appellant and to impose a severe sentence.
5. The Appellant filed submissions. He submitted that the evidence adduced was riddled with contradictions and inconsistencies and that it was unsafe to rely on it to convict him. He highlighted the evidence regarding his identification, the place of recovery of items, the sequence of events as narrated, and his arrest.
6. The Appellant submitted further that the prosecution had shifted the burden of proof to him and that the trial Court had failed to analyse the various offences and asked the Court to quash the conviction and set aside the sentence.
7. The Respondent submitted that the conviction was both correct and justified, and that the sentence was lawful. The respondent maintained that there are no grounds for the appellate Court to interfere with either the conviction or the sentence.
8. It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
9. I have analyzed the evidence that was tendered in the trial Court by both the Appellant and the prosecution, the grounds of appeal, and the written submissions. The issues for determination are two-pronged;
i. Whether the prosecution proved their case to the required threshold, and;
ii. Whether the sentence was appropriate.
10. PW1 was the Complainant. She testified that she was asleep at home when someone struck her door, causing it to give way. She testified that she raised the alarm and identified the Appellant as the assailant. According to PW1 , a struggle ensued between them as he began removing his trousers and during the struggle, she grabbed his genitals, and he bit her on the head before running away.
11. PW2, PW3 , and PW4 testified that they are neighbours who lived in close proximity to one another, and that they had responded to the distress screams at the Complainant’s home that night.
12. PW6 , one of the Complainant’s daughters, testified that she was at home with her sister in one of the rooms when the assailant entered and ordered her sister to turn off the flashlight before returning to their mother’s room (PW1). PW6 stated that at that moment she and her sister managed to escape from the house and went to a neighbour’s place, who raised alarm by screaming. PW6 stated that she identified the Appellant as the assailant and confirmed that he was known to her as their neighbour.
13. The Appellant stated in his defence denied the charges and stated that he was at home when the Complainant, accompanied by her brothers, came to his house and took him to the police station, claiming that he had broken into her house.
14. The investigating officer testified that he visited the scene and found that the door had been damaged, which is how the assailant gained access. According to the officer, a jacket and a set of keys were recovered from the scene by members of the public who traced the Appellant to his house and then escorted him to the police station.
15. After reviewing the testimonies of the prosecution witnesses, I am convinced that an incident took place on the specified date at approximately 1:00 a. At that time, the Complainant was at home with her daughters. The neighbours who rushed to their aid after hearing their cries for help also testified in the case, adding to the credibility of the events that unfolded that night.
16. The key question to determine is whether the Appellant was the assailant and what exactly occurred at the scene.
17. On identification, it is undisputed that the Appellant was apprehended on the same night the incident occurred. He was apprehended by members of the public who then escorted him to the nearby police post. The Complainant testified that her daughter used a flashlight, which illuminated the room during the incident, which allowed her to see the identity of the assailant. She testified that a physical struggle ensued between her and the assailant, giving her an opportunity to clearly see the Appellant and the apparel, which she described as a yellowish T-shirt.
18. The Complainant gave a detailed description of the events and what followed thereafter, and that after the confrontation, the Appellant fled the scene.
19. The testimony from the neighbours provides strong support for the search conducted and confirms that the keys recovered were verified as belonging to the Appellant’s house. I took into account the Appellant’s argument that there were inconsistencies regarding the location from which these items were retrieved. However, PW4 asserted that she personally found the keys on the road while rushing to respond to cries for help from PW1’s home. This detail adds context to the recovery of the items.
20. While the Appellant claims in his defence that his arrest was unrelated to the events of that night, the prosecution evidence shows he was at the scene, and the testimonies are corroborated. The defence is displaced by the strong prosecution evidence. I am persuaded that the Appellant was positively identified as the assailant.
21. Going by the counts one by one, in the first count of Burglary, Section 304 of the Penal Code stipulates as follows: -
304. Housebreaking and burglary
1. Any person who—
a. breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or
b. having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.
2. If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years.
22. The ingredients of the offence of burglary are similar to those of housebreaking save for the fact that burglary occurs at night. In Anthony Kilonzo Mutuku v Republic [2019] eKLR, Odunga J. (as he then was) outlined the ingredients of the offence as follows: -
“In my view, section 304(1)(a) deals with three scenarios. The first scenario is where a person breaks and enters into a building, tent or vessel used as a human dwelling with intent to commit a felony therein. The ingredients here are that the person must break and enter into a building, tent or vessel. That building, tent or vessel must be one that is used as a human dwelling and the entry therein must be with the intention of committing a felony therein. Therefore, even without committing any offence therein, the offence thereunder is complete as long as the intent is proved. However, section 304(1)(b) applies where the person, being already inside the building, tent or vessel used as a human dwelling with intent to commit a felony therein, breaks out thereof. Therefore, once it is proved that a person was inside the building, tent or vessel used as a human dwelling and harbouring the intention of committing a felony, breaks out thereof, the offence is complete without necessarily committing an offence. The last scenario is still under section 304(1)(b) but here, the person, being already inside the building, tent or vessel used as a human dwelling with or without intent to commit a felony therein, does commit a felony therein and breaks out thereof. So under section 304(1)(a), the breaking is for purposes of gaining ingress while section 304(1)(b), the breaking is for purposes of egress.”
23. The incident herein occurred at night. There is evidence supporting that there was a forceful entry into the Complainant’s house, the investigation officer testified that the door had been damaged, and that is how the Appellant had gained access. I therefore find that the prosecution did prove the offence of Burglary against the appellant to the required standard.
24. On the second count of attempted rape, Section 4 of the Sexual Offences Act provides: -
“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.”
25. From the above section, the prosecution is required to prove the identity of the perpetrator and the steps taken by the perpetrator to attempt to commit the intentional and unlawful act of rape.
26. In the case of Njau v Republic, Criminal Appeal No. 130 of 1992 [1993] eKLR, it was held that any crime of attempt consists of the following elements: -
(a) an intent to commit the crime,
(b)an overt act towards its commission,
(c)the failure to complete the crime, and
(d)the apparent possibility of committing it.
27. In cases of attempted rape, the Court assesses the actions that demonstrate a resolve to achieve sexual penetration despite resistance or lack of consent.
28. The Complainant testified that the Appellant began to remove his trousers and threatened to rape her. This behaviour suggests an intention to commit rape, and during the struggle, the Complainant reportedly grasped the Appellant’s genitals, forcing him to retreat; he fled after biting her on the face.
29. The ingredients of the offence of attempted rape were proved to the required standard.
30. On the third count of assault causing actual bodily harm, the treatment notes and P3 form further confirmed that the Complainant sustained a human bite to the face. The injuries were assessed as bodily harm.
31. From the findings, I conclude that the trial court was not in error in finding the Appellant guilty of burglary, attempted rape, and assault causing actual bodily harm.
Sentencing
32. Burglary carries a maximum sentence of up to ten years, and the Appellant was sentenced to two years for this offence. Attempted rape has a minimum sentence of five years, which is the sentence the Appellant received. Assault causing actual bodily harm has a maximum sentence of up to five years, and the Appellant was sentenced to one year for this offence. Each of these offences is distinct, and the sentences were ordered to run consecutively.
33. The sentences are lawful. The magistrate considered the pre-sentence report, the Appellant’s mitigation, and the general circumstances of the case. I find no reason to interfere with the decision.
34. In conclusion, I find that the appeal has no merit. The conviction is upheld, and the sentences are affirmed.
35. It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 06th day of FEBRUARY, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant - Beryl
Applicant present
Mr. Mutuku, Advocate for the Appellant
Ms. Mutua, ODPP