Introduction and Background
1. The Appellant was charged in the subordinate court with the offence of Attempted Defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act (Chapter 63A of the Laws of Kenya) . The particulars were that on 12 th March 2024, at Kwa Kulu area in Mavoloni location, Yatta sub county within Machakos County, the Appellant intentionally and unlawfully attempted to cause his penis to penetrate into the vagina of MKW, a child of 14 years. In the alternative, the Appellant was also charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act .
2. The Appellant denied both charges and the matter was set down for hearing. The Respondent (“the Prosecution”) produced 6 witnesses; the complainant, MKW (PW 1), Janet Mutheu, MKW’s mother (PW 2), Luvia Mueni Katumbia, MKW’s grandmother (PW 3), Stanilous Muia, a neighbor (PW 4), IP Samuel Kyulu, a police officer based at Yatta Police Station (PW 5) and Ruchard Mutinda, a clinician at Matuu Level 4 hospital (PW 6). The Appellant testified on his own behalf as DW 1.
3. After hearing the case, the subordinate court rendered a judgment on 20 th November 2024 where it found that the charges of the offence of Attempted Defilement had been proved against the Appellant beyond any reasonable doubt and the trial court proceeded to convict and sentence the Appellant to 10 years imprisonment. It is this decision that the Appellant has appealed against through grounds set out in his Petition of Appeal dated 28 th November 2024. The appeal was canvassed by way of written submissions which I have considered together with the record and I will be making relevant references to them in my analysis and determination below.
Analysis and Determination
4. As submitted by the Prosecution, this is the first appellate court and in Okeno v. R [1972] EA. 32, the predecessor of the Court of Appeal laid down what the duty of the first appellate court is. It is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions and there is nothing objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision (Also see Wairimu v Republic (Criminal Appeal 28 of 2009) [2010] KECA 495 (KLR) ]
5. In his Petition of Appeal, the Appellant appeals against his conviction and sentence, stating that the trial magistrate erred in law and fact by failing to base the judgment on the facts presented by the parties, failing to properly apply the legal standard requiring the prosecution to prove its case, failing to find that the charges against the Appellant were defective, rendering the proceedings a nullity, failing to allow the Appellant to cross-examine prosecution witnesses, which resulted in a miscarriage of justice, failing to appreciate that the evidence against the Appellant was insufficient, failing to find that the offence of attempted defilement was not proven beyond a reasonable doubt, failing to find that the Appellant's defence raised a reasonable doubt and improperly shifting the burden of proof from the Prosecution to the Appellant.
6. The Appellant submits that proof of age is a mandatory legal element in minor-related sexual offences and he asserts that PW1 did not disclose her age during her testimony and the Prosecution failed to produce documentary proof such as a birth certificate, age assessment report, or school/clinic records. He relies on inter alia, the Court of Appeal decision in Mwachongo v Republic [2016] KECA 521 (KLR) to hold that oral assertions alone are legally insufficient, making the failure to prove age fatal to the Prosecution's case
7. The Appellant points out that the Prosecution failed to produce medical records, a P3 Form, a PRC Form, or medical officer testimony and that while medical evidence is not always mandatory, it is critical where the offence is denied, penetration or attempt is in issue and the complainant's testimony lacks independent corroboration. He further contends that an attempt requires proof of intent and an overt act directly connected to penetration but that the produced P3 form showed no physical injuries on PW 1’s body and that the evidence only raised suspicion or preparation, which falls short of the legal standard required for a criminal conviction.
8. The Appellant submits that the Prosecution failed to prove intentional and unlawful sexual contact beyond a reasonable doubt and that the evidence presented was uncorroborated, internally inconsistent and ignored material contradictions. The Appellant asserts that the trial magistrate shifted the burden of proof onto him, violating the presumption of innocence guaranteed under Article 50(2)(a) of the Constitution . For these reasons, the Appellant urges the Court to set aside and/or quash the conviction and 10-year sentence imposed by the trial court.
9. On its part, the Prosecution submits that PW1 testified she was a Grade 8 pupil and her birth certificate showed a birth date of 24 th December 2010, establishing she was 13 years old at the time of the offense and under 18 years as per section 2 of the Children's Act(Chapter 141 of the Laws of Kenya) . That positive recognition was established with certainty rather than identification of a stranger as PW2 knew the Appellant from selling cassava to him previously, PW1 was in his presence for a significant duration after informing him her mother was away, PW3 observed the Appellant near the victim during the day and raised the alarm upon his return and PW4 caught the Appellant in flagrante delicto , kneeling on top of the victim, trying to strip her after hearing PW1 scream.
10. The Prosecution submits that the Appellant remained after learning the victim was alone, followed her, grabbed her arm and waist, forced her into a thicket, covered her mouth, pushed her to the ground, attempted to strip her and knelt on top of her. It submits that these actus reus steps satisfied the definition of attempt under section 388 of the Penal Code , interrupted only by PW4's intervention. The Prosecution submits that the record show the Appellant cross-examined all prosecution witnesses, he failed to demonstrate how the charge was defective and the particulars aligned with the law and trial evidence and that his claim of a frame-up over unpaid wages was uncorroborated and the trial court rightly found it was a mere denial insufficient to displace the prosecution's case. For these reasons, the Prosecution submits that the case was proved beyond a reasonable doubt, the trial magistrate's decision was sound and the appeal should be dismissed.
11. Attempted defilement is defined in sections 9(1) as read with section 9(2) of the Sexual Offences Act 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.
12. Section 388 of the Penal Code defines the term “attempt” as follows:
388.Attempt defined
(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
13. This court ( Njagi J.,) in Jillo v Republic [2025] KEHC 17118 (KLR) discussed the offence of attempted defilement as follows:
20.The ingredients of the offence of attempted defilement are proof of the age of the victim, proof of identity of the accused and proof of the attempt itself .
…….
24.In Karbanet HCCRA NO. 192 OF 2017 Kakurut Ngoletom Lesikiriatum v. R of 25 th February 2019, Muriithi J. discussed the law on attempt as follows:“Principles of the law of attempt
8.In accordance with the definition of attempt in section 388 of the Penal Code, the test for attempt requires a demonstration of an intention to commit the offence and overt act towards the commission of the offence which is sufficiently proximate or immediately connected to the attempted offence . See Mwandikwa Mutisya v. R (1959) EA 18 and Mussa Said v. R (1962) EA 454.
9.In discussing the principles of law on attempt in the case of attempted larceny, Spry, J. (as he then was) in Mussa s/o Said v. R (1962) EA 454, 455 Letters C- D said:“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. (Penal Code, s. 380). 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 the act must be of such a character as to be incompatible with any other reasonable explanation. Secondly, even if the intention is established, the act itself must not be too remote from the alleged intended offence.”
10.In Keteta v. R, (1972) EA 532, 534, Madan Ag. CJ. (as he then was) put the matter succinctly as follows:“A mere intention to commit an offence which is in fact not committed cannot constitute an attempt to commit it. There must also be an overt act which is immediately and remotely connected with the offence intended to be committed and which manifests the intention to commit the offence. A remotely connected act will not do .”
14. On the age of MWK, PW 5 produced her birth certificate (PExhibit 2) which indicates that she was born on 24 th December 2010 meaning at the time of the offence , she was almost 14 years old. This was corroborated by PW 6 who produced the Medical P3 form that indicated that she was 14 years old at the time of examination. As submitted by the Appellant, the age of a minor victim of sexual violence can be proved by way of medical documents, birth certificates, victim’s own or her parents’ and or guardians’ evidence, common sense as well as by simple observation (see Kaburu v Republic [2022] KECA 789 (KLR) . It is therefore my finding that the production of the birth certificate and corroborating evidence of the Medical P3 form at the time of MWK’s observation by PW 6 was conclusive proof of MWK’s age. The ground of appeal challenging the proof of age therefore fails.
15. On the identity of the Appellant, the evidence on record paints a clear picture of positive identification by multiple witnesses. MWK, the complainant herself interacted with the Appellant for an extended period from around midday to mid-afternoon when there was daylight and she pointed him out in court. PW 2 knew the Appellant before the incident as she had sold cassava to him and MWK informed her that it was the Appellant who accosted her, PW 3 saw the Appellant from 10 a.m. and watched him for 30 minutes following MWK and knew him and his parents and PW 4 then found the Appellant kneeling on top of MWK and clearly saw him.
16. I find that the trial court was properly guided when it relied on the Court of Appeal’s decision in Mwaura v Republic [1987] KECA 62 (KLR) which established the principles for visual identification, including consideration of the length of time the witness had for seeing the accused, the position from which the witness saw the accused and the quality of light. In this case, there was extended interaction between the Appellant and MWK, the incident occurred during daylight hours, the Appellant was at close proximity to the witnesses and PW2 and PW3 knew the Appellant personally before the incident . On cross-examination, the Appellant did not challenge the identification by any of the witnesses and he did not claim mistaken identity. He effectively confirmed his presence at the scene through his cross-examination of PW3 and I find that the Appellant was positively identified by multiple independent witnesses. This ground of appeal challenging identification also fails.
17. As to whether there was proof of the attempt itself, MWK testified that the Appellant asked for a knife to assist her in peeling cassava, he then followed her around the compound and asked to be shown Kusi's home. He then held her arm and waist, pushed her into the thicket, held her her mouth to stop screams, swept her to the ground, knelt on top of her and tried to remove her clothes. The evidence of PW4 is particularly damning as he testified that he found the Appellant kneeling on top of the MWK trying to remove her clothes. The Appellant was caught in the very act of attempting to commit the offence and the only thing that prevented the completion of the offence was the timely intervention of PW4.
18. The medical P3 form confirmed that there was no penetration, however, for attempted defilement, penetration need not be proved. As stated, the prosecution only needs to prove an overt act that manifests an intention to penetrate. The Appellant's actions of pushing MWK into a thicket, holding her mouth to prevent her from screaming, sweeping her to the ground, kneeling on top of her and trying to remove her clothes constitute clear and proximate overt acts manifesting an intention to penetrate. I find that the trial court correctly found that the prosecution had proved all the ingredients of attempted defilement beyond reasonable doubt and I find no reason to disturb that finding. This ground of appeal fails.
19. As to whether the Appellant was denied the right to cross-examine witnesses, the record reveals that he cross-examined MWK, PW 3 and PW 4 but he did not cross-examine PW 2, PW 5 and PW 6. Nothing on the record indicates that he was denied an opportunity to cross-examine these witnesses and if anything, it appears that he chose not to cross-examine them and he cannot now be heard to complain that he was denied that right. This ground of appeal is misconceived and fails entirely.
20. As to whether the Appellant’s defence was properly considered, the learned magistrate, in the judgment stated that “ the accused’s evidence which I have laid out above is not credible” meaning he considered the Appellant’s evidence but he did not find it credible enough to upset that of the Prosecution. I find that the trial court was entitled to find that the Appellant's defence did not raise a reasonable doubt and I find no error in that finding. This ground of appeal also fails.
21. On the sentence, section 9(2) of the Sexual Offences Act above provides that "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 ." The Court of Appeal has always stated that Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle and must be interfered (see Otieno v Republic [2024] KECA 42 (KLR)]
22. The trial court considered the Appellant's mitigation where he pleaded for a non-custodial sentence and stated he had no family. I find that the trial court correctly noted that the Sexual Offences Act mandates a minimum sentence of 10 years and it imposed the minimum sentence prescribed by law. I find that the sentence is not excessive and the trial court did not take into account irrelevant factors, nor did it fail to take into account relevant factors. I find that the sentence is lawful and proper and this ground of appeal fails.
23. In the end I find that the trial court's judgment was sound and based on credible evidence, the conviction was safe and the sentence was lawful.
Conclusion and Disposition
24. For the reasons set out above, I find that this appeal lacks merit, the conviction is upheld and the sentence of ten years imprisonment is confirmed.
DATED SIGNED AND DELIVERED virtually this 10 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Accused present at Thika Main Prison
2. Ms. Machuma for the Respondent/ODPP
3. Abdisalan- Court Assistant
2 | Page
1. The Appellant was charged in the subordinate court with the offence of Attempted Defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act (Chapter 63A of the Laws of Kenya) . The particulars were that on 12 th March 2024, at Kwa Kulu area in Mavoloni location, Yatta sub county within Machakos County, the Appellant intentionally and unlawfully attempted to cause his penis to penetrate into the vagina of MKW, a child of 14 years. In the alternative, the Appellant was also charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act .
2. The Appellant denied both charges and the matter was set down for hearing. The Respondent (“the Prosecution”) produced 6 witnesses; the complainant, MKW (PW 1), Janet Mutheu, MKW’s mother (PW 2), Luvia Mueni Katumbia, MKW’s grandmother (PW 3), Stanilous Muia, a neighbor (PW 4), IP Samuel Kyulu, a police officer based at Yatta Police Station (PW 5) and Ruchard Mutinda, a clinician at Matuu Level 4 hospital (PW 6). The Appellant testified on his own behalf as DW 1.
3. After hearing the case, the subordinate court rendered a judgment on 20 th November 2024 where it found that the charges of the offence of Attempted Defilement had been proved against the Appellant beyond any reasonable doubt and the trial court proceeded to convict and sentence the Appellant to 10 years imprisonment. It is this decision that the Appellant has appealed against through grounds set out in his Petition of Appeal dated 28 th November 2024. The appeal was canvassed by way of written submissions which I have considered together with the record and I will be making relevant references to them in my analysis and determination below.
Analysis and Determination
4. As submitted by the Prosecution, this is the first appellate court and in Okeno v. R [1972] EA. 32, the predecessor of the Court of Appeal laid down what the duty of the first appellate court is. It is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions and there is nothing objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision (Also see Wairimu v Republic (Criminal Appeal 28 of 2009) [2010] KECA 495 (KLR) ]
5. In his Petition of Appeal, the Appellant appeals against his conviction and sentence, stating that the trial magistrate erred in law and fact by failing to base the judgment on the facts presented by the parties, failing to properly apply the legal standard requiring the prosecution to prove its case, failing to find that the charges against the Appellant were defective, rendering the proceedings a nullity, failing to allow the Appellant to cross-examine prosecution witnesses, which resulted in a miscarriage of justice, failing to appreciate that the evidence against the Appellant was insufficient, failing to find that the offence of attempted defilement was not proven beyond a reasonable doubt, failing to find that the Appellant's defence raised a reasonable doubt and improperly shifting the burden of proof from the Prosecution to the Appellant.
6. The Appellant submits that proof of age is a mandatory legal element in minor-related sexual offences and he asserts that PW1 did not disclose her age during her testimony and the Prosecution failed to produce documentary proof such as a birth certificate, age assessment report, or school/clinic records. He relies on inter alia, the Court of Appeal decision in Mwachongo v Republic [2016] KECA 521 (KLR) to hold that oral assertions alone are legally insufficient, making the failure to prove age fatal to the Prosecution's case
7. The Appellant points out that the Prosecution failed to produce medical records, a P3 Form, a PRC Form, or medical officer testimony and that while medical evidence is not always mandatory, it is critical where the offence is denied, penetration or attempt is in issue and the complainant's testimony lacks independent corroboration. He further contends that an attempt requires proof of intent and an overt act directly connected to penetration but that the produced P3 form showed no physical injuries on PW 1’s body and that the evidence only raised suspicion or preparation, which falls short of the legal standard required for a criminal conviction.
8. The Appellant submits that the Prosecution failed to prove intentional and unlawful sexual contact beyond a reasonable doubt and that the evidence presented was uncorroborated, internally inconsistent and ignored material contradictions. The Appellant asserts that the trial magistrate shifted the burden of proof onto him, violating the presumption of innocence guaranteed under Article 50(2)(a) of the Constitution . For these reasons, the Appellant urges the Court to set aside and/or quash the conviction and 10-year sentence imposed by the trial court.
9. On its part, the Prosecution submits that PW1 testified she was a Grade 8 pupil and her birth certificate showed a birth date of 24 th December 2010, establishing she was 13 years old at the time of the offense and under 18 years as per section 2 of the Children's Act(Chapter 141 of the Laws of Kenya) . That positive recognition was established with certainty rather than identification of a stranger as PW2 knew the Appellant from selling cassava to him previously, PW1 was in his presence for a significant duration after informing him her mother was away, PW3 observed the Appellant near the victim during the day and raised the alarm upon his return and PW4 caught the Appellant in flagrante delicto , kneeling on top of the victim, trying to strip her after hearing PW1 scream.
10. The Prosecution submits that the Appellant remained after learning the victim was alone, followed her, grabbed her arm and waist, forced her into a thicket, covered her mouth, pushed her to the ground, attempted to strip her and knelt on top of her. It submits that these actus reus steps satisfied the definition of attempt under section 388 of the Penal Code , interrupted only by PW4's intervention. The Prosecution submits that the record show the Appellant cross-examined all prosecution witnesses, he failed to demonstrate how the charge was defective and the particulars aligned with the law and trial evidence and that his claim of a frame-up over unpaid wages was uncorroborated and the trial court rightly found it was a mere denial insufficient to displace the prosecution's case. For these reasons, the Prosecution submits that the case was proved beyond a reasonable doubt, the trial magistrate's decision was sound and the appeal should be dismissed.
11. Attempted defilement is defined in sections 9(1) as read with section 9(2) of the Sexual Offences Act 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.
12. Section 388 of the Penal Code defines the term “attempt” as follows:
388.Attempt defined
(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
13. This court ( Njagi J.,) in Jillo v Republic [2025] KEHC 17118 (KLR) discussed the offence of attempted defilement as follows:
20.The ingredients of the offence of attempted defilement are proof of the age of the victim, proof of identity of the accused and proof of the attempt itself .
…….
24.In Karbanet HCCRA NO. 192 OF 2017 Kakurut Ngoletom Lesikiriatum v. R of 25 th February 2019, Muriithi J. discussed the law on attempt as follows:“Principles of the law of attempt
8.In accordance with the definition of attempt in section 388 of the Penal Code, the test for attempt requires a demonstration of an intention to commit the offence and overt act towards the commission of the offence which is sufficiently proximate or immediately connected to the attempted offence . See Mwandikwa Mutisya v. R (1959) EA 18 and Mussa Said v. R (1962) EA 454.
9.In discussing the principles of law on attempt in the case of attempted larceny, Spry, J. (as he then was) in Mussa s/o Said v. R (1962) EA 454, 455 Letters C- D said:“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. (Penal Code, s. 380). 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 the act must be of such a character as to be incompatible with any other reasonable explanation. Secondly, even if the intention is established, the act itself must not be too remote from the alleged intended offence.”
10.In Keteta v. R, (1972) EA 532, 534, Madan Ag. CJ. (as he then was) put the matter succinctly as follows:“A mere intention to commit an offence which is in fact not committed cannot constitute an attempt to commit it. There must also be an overt act which is immediately and remotely connected with the offence intended to be committed and which manifests the intention to commit the offence. A remotely connected act will not do .”
14. On the age of MWK, PW 5 produced her birth certificate (PExhibit 2) which indicates that she was born on 24 th December 2010 meaning at the time of the offence , she was almost 14 years old. This was corroborated by PW 6 who produced the Medical P3 form that indicated that she was 14 years old at the time of examination. As submitted by the Appellant, the age of a minor victim of sexual violence can be proved by way of medical documents, birth certificates, victim’s own or her parents’ and or guardians’ evidence, common sense as well as by simple observation (see Kaburu v Republic [2022] KECA 789 (KLR) . It is therefore my finding that the production of the birth certificate and corroborating evidence of the Medical P3 form at the time of MWK’s observation by PW 6 was conclusive proof of MWK’s age. The ground of appeal challenging the proof of age therefore fails.
15. On the identity of the Appellant, the evidence on record paints a clear picture of positive identification by multiple witnesses. MWK, the complainant herself interacted with the Appellant for an extended period from around midday to mid-afternoon when there was daylight and she pointed him out in court. PW 2 knew the Appellant before the incident as she had sold cassava to him and MWK informed her that it was the Appellant who accosted her, PW 3 saw the Appellant from 10 a.m. and watched him for 30 minutes following MWK and knew him and his parents and PW 4 then found the Appellant kneeling on top of MWK and clearly saw him.
16. I find that the trial court was properly guided when it relied on the Court of Appeal’s decision in Mwaura v Republic [1987] KECA 62 (KLR) which established the principles for visual identification, including consideration of the length of time the witness had for seeing the accused, the position from which the witness saw the accused and the quality of light. In this case, there was extended interaction between the Appellant and MWK, the incident occurred during daylight hours, the Appellant was at close proximity to the witnesses and PW2 and PW3 knew the Appellant personally before the incident . On cross-examination, the Appellant did not challenge the identification by any of the witnesses and he did not claim mistaken identity. He effectively confirmed his presence at the scene through his cross-examination of PW3 and I find that the Appellant was positively identified by multiple independent witnesses. This ground of appeal challenging identification also fails.
17. As to whether there was proof of the attempt itself, MWK testified that the Appellant asked for a knife to assist her in peeling cassava, he then followed her around the compound and asked to be shown Kusi's home. He then held her arm and waist, pushed her into the thicket, held her her mouth to stop screams, swept her to the ground, knelt on top of her and tried to remove her clothes. The evidence of PW4 is particularly damning as he testified that he found the Appellant kneeling on top of the MWK trying to remove her clothes. The Appellant was caught in the very act of attempting to commit the offence and the only thing that prevented the completion of the offence was the timely intervention of PW4.
18. The medical P3 form confirmed that there was no penetration, however, for attempted defilement, penetration need not be proved. As stated, the prosecution only needs to prove an overt act that manifests an intention to penetrate. The Appellant's actions of pushing MWK into a thicket, holding her mouth to prevent her from screaming, sweeping her to the ground, kneeling on top of her and trying to remove her clothes constitute clear and proximate overt acts manifesting an intention to penetrate. I find that the trial court correctly found that the prosecution had proved all the ingredients of attempted defilement beyond reasonable doubt and I find no reason to disturb that finding. This ground of appeal fails.
19. As to whether the Appellant was denied the right to cross-examine witnesses, the record reveals that he cross-examined MWK, PW 3 and PW 4 but he did not cross-examine PW 2, PW 5 and PW 6. Nothing on the record indicates that he was denied an opportunity to cross-examine these witnesses and if anything, it appears that he chose not to cross-examine them and he cannot now be heard to complain that he was denied that right. This ground of appeal is misconceived and fails entirely.
20. As to whether the Appellant’s defence was properly considered, the learned magistrate, in the judgment stated that “ the accused’s evidence which I have laid out above is not credible” meaning he considered the Appellant’s evidence but he did not find it credible enough to upset that of the Prosecution. I find that the trial court was entitled to find that the Appellant's defence did not raise a reasonable doubt and I find no error in that finding. This ground of appeal also fails.
21. On the sentence, section 9(2) of the Sexual Offences Act above provides that "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 ." The Court of Appeal has always stated that Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle and must be interfered (see Otieno v Republic [2024] KECA 42 (KLR)]
22. The trial court considered the Appellant's mitigation where he pleaded for a non-custodial sentence and stated he had no family. I find that the trial court correctly noted that the Sexual Offences Act mandates a minimum sentence of 10 years and it imposed the minimum sentence prescribed by law. I find that the sentence is not excessive and the trial court did not take into account irrelevant factors, nor did it fail to take into account relevant factors. I find that the sentence is lawful and proper and this ground of appeal fails.
23. In the end I find that the trial court's judgment was sound and based on credible evidence, the conviction was safe and the sentence was lawful.
Conclusion and Disposition
24. For the reasons set out above, I find that this appeal lacks merit, the conviction is upheld and the sentence of ten years imprisonment is confirmed.
DATED SIGNED AND DELIVERED virtually this 10 TH DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Accused present at Thika Main Prison
2. Ms. Machuma for the Respondent/ODPP
3. Abdisalan- Court Assistant
2 | Page