HIGH COURT CRIMINAL APPEAL CASE NO. E024 OF 2025
ROBERT MAINA MWANGI……………………….……..…APPELLANT
VERSUS
REPUBLIC…………………………………………………RESPONDENT
JUDGEMENT
1. The Appellant ROBERT MAINA MWANGI has filed this appeal challenging his conviction and sentence in the Principal Magistrates Court at the Mukurwe-ini Law Courts.
2. The Appellant had been arraigned before the trial court on 31 st August 2021 facing a charge of ATTEMPTED DEFILEMENT CONTRARY TO SECTION 9(1) as read with SECTION 9(2) OF THE SEXUAL OFFENCES ACT 2006 . The particulars of the charge were that:-
“On the 17 th day of June 2020 at around 1600 hours in Kiamuti Village, Ichamara area within Mukurwe-ini Sub-County, unlawfully and intentionally attempted to cause his penis to penetrate the vagina of ‘MWW’ a child aged 13 years.”
3. The Appellant faced an alternative charge of COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECITON 11(1) OF THE SEXUAL OFFENCES ACT 2006 . The Appellant entered a plea of Not Guilty to both charges and his trial commenced before the Lower Court on 18 th October 2021 . The prosecution called a total of eight (8) witnesses in support of their case.
4. PW1 who was the complainant ‘ MWN’ told the court that she was aged fifteen (15) years (at the time of trial) and was a student at Ichamara Primary School . The minor stated that on 17 th June 2020 , she together with her sister ‘ FM’ and a friend ‘ YW’ were coming from the river where they had gone to fetch water. The Appellant who was well known to the child called her to him to collect an item to take home to her mother. The child followed the appellant to his house. The complainant stated that the appellant led her into his bed room, lay her on the bed, undressed her. That he began to touch the child’s breasts and vagina and proceeded to put his penis into her vagina.
5. The complainant stated that an old man whom she referred to as ‘ Guka Dani’ heard her cries for help and came to the house and called out to the appellant. The appellant fled through the kitchen window.
6. PW2 JAMES NDERITU NJARAMBA is a clinical officer who at the material time was attached to Mukurwe-ini Sub-County Hospital . He confirms that the complainant was seen and examined at that facility. PW2 produces the complainant’s P3 form Pexb 1 as well as the PRC form Pexb 3 .
7. PW3 DANIEL KAMAU CRISPO told the court that he was a resident of Ichamara Village and is also an official of TASAHA an NGO dealing with child abuse issues and HIV awareness in the area. PW3 told the court that the appellant was his nephew being the son of his elder brother and that appellant was also his neighbour.
8. PW3 told the court that on 17 th June 2020 at about 4.00pm he was at his home when he heard a scream from the appellant’s house. PW3 went to check what the problem was. He banged on the appellants door and the appellant opened the door holding his trouser in his hand. Upon seeing PW3 the appellant fled through the window naked.
9. PW3 says he moved into the house and saw the complainant sitting on the bed naked. The child informed him that the appellant had defiled her. PW3 told the child to get dressed and escorted her back to her home. The parents and guardians of the child were not home so PW3 left. PW3 then phone the local chief and informed him of the incident. He returned the next day and found the child’s aunt at home. The aunt confirmed that the complainant had reported to her what had happened.
10. PW4 MWM is the mother of the complainant. She told the court that
the complainant was born on 3 rd May 2005 and was a pupil at Ichamara Primary School. PW4 told the court that on 17 th June 2020 she was out working when she received a call from her sister-in-law informing her that her daughter had been defiled. PW4 immediately phoned the area chief and then headed for home. She took the child to hospital for examination and later reported at Mukurwe-ini Police Station. A warrant of arrest was issued for the appellant who had vanished from the area.
11. Later on 30 th August 2021 PW4 spotted the appellant at a
workshop. He saw the witness and ran away. PW4 assisted by other villagers chased and apprehended the appellant they took him to a nearby police post.
12. PW5 CORPORAL PRISCAH WACHUKA was the investigating
officer.
13. PW6 PC PETER THEURI was the arresting officer. The officer told
the court that on 18 th June 2020 the day after the incident he visited
the house of the appellant but found the house locked and nobody there. That the appellant remained at large until he was apprehended by the complainant’s mother and other villagers on 31 st August 2021 . PW7 went and re-arrested the appellant from the public and took him to Mukurwe-ini Police Station.
14. PW7 is a minor ‘ FM’ . She told the court that the complainant was her
sister. She confirms that on 17 th June 2020 , she went with the complainant to fetch water. On the way they met the appellant who called the complainant to go to his house to collect items to take to her mother. That the child went with appellant who told the other two girls to go home and locked his door.
15. PW8 (in the record) was ‘ YW’ also a minor aged ten (10) years old.
PW9 confirms that on 17 th June 2021 she, the complainant and PW8 went to the stream to fetch water. PW9 says that she went home immediately upon collecting the water and did not see the appellant at all on that day and she did not see the complainant enter the appellant’s house.
16. At the close of the prosecution case the appellant was found to
have a case to answer and was placed onto his defence. The Appellant gave a sworn defence in which he denied the charges.
17. On 12 th May 2022 the Hon. D N BOSIBORI Resident Magistrate
delivered her judgment in which she convicted the appellant of the charge of Attempted Defilement. After hearing mitigation from the appellant the court sentenced the Appellant to serve ten (10) years imprisonment.
18. Being aggrieved by both his conviction and sentence the Appellant filed
the Petition of Appeal dated 2 nd April 2025 . The appeal was premised upon the following grounds:-
“1. THAT the trial court erred by relying on inconsistent and contradictory witness testimonies, which undermined the prosecution’s case.
2. THAT the trial court failed to give proper consideration to the medical evidence, which did not support the charge of attempted defilement.
3. THAT the trial court did not adequately address the personal vendetta between the accused and PW3, which biased the witness’s testimony.
4. THAT the failure of PW3 to immediately report the incident was not appropriately considered, casting doubt on the credibility of the allegations.
5. THAT the defense evidence, including the accused’s explanation for his absence and the land dispute, was not sufficiently considered.
6. THAT the prosecution did not prove the case beyond reasonable doubt due to the lack of corroborating evidence and medical findings.
7. THAT the trial court placed undue reliance on the testimony of PW3 despite the clear evidence of bias and personal interest.
8. THAT while considering the above-stated grounds, it is our humble prayer that the court quashes the conviction and set aside the sentence imposed by the trial court or any other or further relief that this Honorable court deems fit and just to grant, in the interest of justice.”
19. The appeal was canvassed by way of written submissions. The Appellant filed the written submissions dated 9 th May 2025 and the further submissions dated 27 th February 2026. The Respondent ODPP opposed the appeal through the written submissions dated 22 nd October 2025 .
ANALYSIS AND DETERMINATION
20. I have carefully considered this appeal, the record of the trial before
the lower court as well as the written submissions filed by both parties.
21. This is a first appeal in which the duty of the Court is to re-examine
and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of OKENO -VS- REPUBLIC [1972] EA 32 the court set out the duties of the appellate court as follows:-
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174).
22. Similarly in the case of DAVID NJUGUNA WAIRIMU -vs-
REPUBLIC [2010] eKLR the Court of Appeal stated as follows:-
“The duty of the first appellate court is to analyse 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. We do not think there is anything objectionable in doing so, provided that 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 decisions.”
23. On the question of age the complainant told the court that she was
born on 3 rd May 2006 and was aged fifteen (15) years old at the time of the trial, PW4 who was the complainants mother confirmed that her daughter was born on 3 rd May 2006 . Both PW1 and the complainant identify the complainant’s birth certificate Serial No 153437 which was produced as an exhibit by the investigating officer ( Pexb 4 ). The document confirms that the complainant was born on 3 rd May 2006 . This is reliable evidence which was not challenged or controverted by the Defence. I therefore find that it was satisfactorily proved that the complainant was aged fourteen (14) years and was therefore a minor at the time of the incident.
24. The appellant faced a charge of ‘ attempted defilement’ Section
9(1) of the Sexual Offences Act 2006 provides as follows:-
“(1) A person who attempts to commit an act which would
cause penetration with a child is guilty of an offence termed
attempted defilement.’
25. Therefore it is not a requirement that ‘penetration be proved in
order to prove this offence. The complainant’s evidence was that the appellant called her ostensibly to collect an item to take to her mother. The child went to the appellant’s house and upon entering the appellant locked the door. He undressed the child and laid her on the bed. In her own words the complainant stated as follows:-
“He [the appellant] led me to his bedroom, removed my clothes and led me to the bed and did bad manners to me. He took his thing and inserted it in my body part which I use to urinate. His thing is used to urinate too. He defiled me once. …………….. I was lying on his bed. We were both naked as we lay on the bed. I asked him to let me go.”
26. The complainant gave a graphic account of what the appellant did to
her. It is unlikely that the complainant fabricated this story - indeed she had no reason to do so.
27. The complainant described what was done to her as ‘bad manners’.
As a young child she obviously did not have adequate vocabulary
to describe the sexual act. The complainant alleged that the appellant placed his penis into her vagina. It has been held in many cases that even the most minute and fleeting act of penetration would amount to defilement. However the prosecution opted to charge the appellant with attempted defilement instead.
28. PW2 was the doctor form Mukurwe-ini Hospital. He produced the P3
form dated 19 th June 2020 Pexb 1 indicates that upon examination the complainant was found to have an intact hymen which indicates that full penetration did not occur. The only medical finding related to poor hygiene which the minor was counselled.
29. On the question of identification the complainant positively identified
the appellant as the man who assaulted her. The incident occurred in broad day light and the child was alone with the appellant in his house. She had ample time and opportunity to see the appellant.
30. The appellant was a fellow villager and was a person well known to
the child. She referred to the appellant as ‘ Maina’ which was his given name. Thus there is clear evidence of recognition. In the case of ANJONONI -VS- REPUBLIC [1980] eKLR the court stated that
“…………………..recognition of an assailant is more
satisfactory, more assuring and more reliable than identification of a stranger because it depends upon
the personal knowledge of the assailant in some form or another.”
31. The complainant told the court that she was in the company of two
other girls when the appellant called her to his house. PW7 ‘FMW’ a sister of the complainant who was in the company of the complainant at the material time, told the court that she heard the appellant call the complainant to his house to collect an item to take to her mother. In her evidence PW7 said
“The accused spoke to M to pick something belonging to her mother. M went to pick/collect a bag and Maina closed the door and we were told to leave. We stood outside Maina’s house before Maina called her.”
32. PW7 who also knew the appellant well identified him in court.
33. PW8 ‘YW’ the other child who accompanied the complainant to fetch
water states that she went home immediately after collecting the water
and did not see the appellant at all that day.
34. The evidence of the complainant was further corroborated in all
material aspects by the testimony of PW3 who was also a neighbour of the appellant and indeed was an uncle to the appellant. PW3 told the court that on 17 th June 2020 at 4.00pm he heard a shout from the appellant’s house. PW4 went to check and upon knocking and calling out, the appellant opened the door. According to PW3 the appellant came to the door naked holding his trouser in his hand. Upon seeing PW3 the appellant fled through the kitchen window.
35. Upon entering the house PW3 found the complainant in the bed
naked. Why would the appellant an adult man be locked up in his house naked with a minor who was also naked on his bed, unless he had some lecherous intention towards the child. As stated earlier PW3 who was a relative to the appellant and who knew him well also positively identified the appellant.
36. It is pertinent to note that the appellant vanished from his home the
day of the incident. PW9 PC Theuri confirmed that he visited the home of the appellant several times in an attempt to arrest appellant but failed to find him there. PW9 told the court that he found the house locked and abandoned.
37. PW4 who was the complainant’s mother told the court that the
appellant disappeared from the village and was not seen again until 30 th August 2021 which was fourteen (14) months after the incident. The fact that the appellant chose to abscond from his own home is clear evidence of a guilty mind. Moreover upon being spotted by PW4 the appellant again ran away and it required the assistance from fellow villagers to apprehend him. This is corroborated by PW9 . It is clear that the appellant had something to hide.
38. In his defence the appellant denied having molested the complainant
at all. The appellant claimed that the charges were instigated by his uncle PW3 with whom he has a bad relationship as PW3 wanted to take over the appellant’s land. Firstly even if the appellant alleges his uncle had a problem with him, what possible motive would a fourteen (14) year old child have to frame him. Did the child also want to take over the Appellant’s land? I do not think so.
39. The appellant stated that PW3 threatened him several times and
states that he reported the said threats to the police. However under cross-examination the appellant admitted that he had no evidence e.g an OB report to prove that he had indeed reported any threats
by PW3 to the police.
40. Secondly under cross-examination the appellant (who during the trial
was represented by counsel) admitted that no questions were put to PW3 regarding this alleged grudge. This means that the appellant did not instruct his lawyer regarding this alleged grudge. It is clear that his issue of a grudge with PW3 was a mere afterthought and was rightfully dismissed by the trial court.
41. Regarding his disappearance after the incident the appellant denied
that he had fled after the incident. He claims that he was away at work and confirms that the complainant’s mother arrested him at the market. Why would the police PW9 claim that they had failed to trace the appellant if he was at home all the while? The Appellant did not call any witness e.g. her employer and/or workmates to confirm this defence. I find that this defence is not credible at all.
42. Based on the above I find that the appellant’s defence had no merit.
The evidence of the complainant was corroborated by the other witnesses. I am satisfied that it was proved beyond reasonable doubt that the appellant lured the minor to his house. His attempt to defile her was thwarted by PW3 who came to the child’s rescue. The incident was reported immediately to police. I therefore find that
the appellant’s conviction was sound and I affirm said conviction.
43. Following his conviction the appellant was invited to make remarks in
mitigation. The court did consider the said mitigation as well as the
period of time the appellant had spent in remand. The court
eventually sentenced the appellant to serve ten (10) years imprisonment.
44. Section 9(2) of the Sexual Offences Act provides that
“(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.”
45. The law provides for a mandatory minimum sentence upon conviction
for the offence of Attempted Defilement. The constitutionality of mandatory minimum sentences under the Sexual Offences Act was upheld by the Supreme Court in the case of REPUBLIC -VS- JOSHUA GICHUKI MWANGI [2023] eKLR . In the circumstances I am satisfied that the sentence imposed by the court was lawful and I uphold that sentence.
46. Finally this appeal fails. The conviction of the appellant by the trial
court is affirmed and the ten (10) years sentence is upheld.
Dated in Nyeri this 3 rd day of July 2026
HIGH COURT CRIMINAL APPEAL CASE NO. E024 OF 2025 JUDGEMENT Page 8 of 18
ROBERT MAINA MWANGI……………………….……..…APPELLANT
VERSUS
REPUBLIC…………………………………………………RESPONDENT
JUDGEMENT
1. The Appellant ROBERT MAINA MWANGI has filed this appeal challenging his conviction and sentence in the Principal Magistrates Court at the Mukurwe-ini Law Courts.
2. The Appellant had been arraigned before the trial court on 31 st August 2021 facing a charge of ATTEMPTED DEFILEMENT CONTRARY TO SECTION 9(1) as read with SECTION 9(2) OF THE SEXUAL OFFENCES ACT 2006 . The particulars of the charge were that:-
“On the 17 th day of June 2020 at around 1600 hours in Kiamuti Village, Ichamara area within Mukurwe-ini Sub-County, unlawfully and intentionally attempted to cause his penis to penetrate the vagina of ‘MWW’ a child aged 13 years.”
3. The Appellant faced an alternative charge of COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECITON 11(1) OF THE SEXUAL OFFENCES ACT 2006 . The Appellant entered a plea of Not Guilty to both charges and his trial commenced before the Lower Court on 18 th October 2021 . The prosecution called a total of eight (8) witnesses in support of their case.
4. PW1 who was the complainant ‘ MWN’ told the court that she was aged fifteen (15) years (at the time of trial) and was a student at Ichamara Primary School . The minor stated that on 17 th June 2020 , she together with her sister ‘ FM’ and a friend ‘ YW’ were coming from the river where they had gone to fetch water. The Appellant who was well known to the child called her to him to collect an item to take home to her mother. The child followed the appellant to his house. The complainant stated that the appellant led her into his bed room, lay her on the bed, undressed her. That he began to touch the child’s breasts and vagina and proceeded to put his penis into her vagina.
5. The complainant stated that an old man whom she referred to as ‘ Guka Dani’ heard her cries for help and came to the house and called out to the appellant. The appellant fled through the kitchen window.
6. PW2 JAMES NDERITU NJARAMBA is a clinical officer who at the material time was attached to Mukurwe-ini Sub-County Hospital . He confirms that the complainant was seen and examined at that facility. PW2 produces the complainant’s P3 form Pexb 1 as well as the PRC form Pexb 3 .
7. PW3 DANIEL KAMAU CRISPO told the court that he was a resident of Ichamara Village and is also an official of TASAHA an NGO dealing with child abuse issues and HIV awareness in the area. PW3 told the court that the appellant was his nephew being the son of his elder brother and that appellant was also his neighbour.
8. PW3 told the court that on 17 th June 2020 at about 4.00pm he was at his home when he heard a scream from the appellant’s house. PW3 went to check what the problem was. He banged on the appellants door and the appellant opened the door holding his trouser in his hand. Upon seeing PW3 the appellant fled through the window naked.
9. PW3 says he moved into the house and saw the complainant sitting on the bed naked. The child informed him that the appellant had defiled her. PW3 told the child to get dressed and escorted her back to her home. The parents and guardians of the child were not home so PW3 left. PW3 then phone the local chief and informed him of the incident. He returned the next day and found the child’s aunt at home. The aunt confirmed that the complainant had reported to her what had happened.
10. PW4 MWM is the mother of the complainant. She told the court that
the complainant was born on 3 rd May 2005 and was a pupil at Ichamara Primary School. PW4 told the court that on 17 th June 2020 she was out working when she received a call from her sister-in-law informing her that her daughter had been defiled. PW4 immediately phoned the area chief and then headed for home. She took the child to hospital for examination and later reported at Mukurwe-ini Police Station. A warrant of arrest was issued for the appellant who had vanished from the area.
11. Later on 30 th August 2021 PW4 spotted the appellant at a
workshop. He saw the witness and ran away. PW4 assisted by other villagers chased and apprehended the appellant they took him to a nearby police post.
12. PW5 CORPORAL PRISCAH WACHUKA was the investigating
officer.
13. PW6 PC PETER THEURI was the arresting officer. The officer told
the court that on 18 th June 2020 the day after the incident he visited
the house of the appellant but found the house locked and nobody there. That the appellant remained at large until he was apprehended by the complainant’s mother and other villagers on 31 st August 2021 . PW7 went and re-arrested the appellant from the public and took him to Mukurwe-ini Police Station.
14. PW7 is a minor ‘ FM’ . She told the court that the complainant was her
sister. She confirms that on 17 th June 2020 , she went with the complainant to fetch water. On the way they met the appellant who called the complainant to go to his house to collect items to take to her mother. That the child went with appellant who told the other two girls to go home and locked his door.
15. PW8 (in the record) was ‘ YW’ also a minor aged ten (10) years old.
PW9 confirms that on 17 th June 2021 she, the complainant and PW8 went to the stream to fetch water. PW9 says that she went home immediately upon collecting the water and did not see the appellant at all on that day and she did not see the complainant enter the appellant’s house.
16. At the close of the prosecution case the appellant was found to
have a case to answer and was placed onto his defence. The Appellant gave a sworn defence in which he denied the charges.
17. On 12 th May 2022 the Hon. D N BOSIBORI Resident Magistrate
delivered her judgment in which she convicted the appellant of the charge of Attempted Defilement. After hearing mitigation from the appellant the court sentenced the Appellant to serve ten (10) years imprisonment.
18. Being aggrieved by both his conviction and sentence the Appellant filed
the Petition of Appeal dated 2 nd April 2025 . The appeal was premised upon the following grounds:-
“1. THAT the trial court erred by relying on inconsistent and contradictory witness testimonies, which undermined the prosecution’s case.
2. THAT the trial court failed to give proper consideration to the medical evidence, which did not support the charge of attempted defilement.
3. THAT the trial court did not adequately address the personal vendetta between the accused and PW3, which biased the witness’s testimony.
4. THAT the failure of PW3 to immediately report the incident was not appropriately considered, casting doubt on the credibility of the allegations.
5. THAT the defense evidence, including the accused’s explanation for his absence and the land dispute, was not sufficiently considered.
6. THAT the prosecution did not prove the case beyond reasonable doubt due to the lack of corroborating evidence and medical findings.
7. THAT the trial court placed undue reliance on the testimony of PW3 despite the clear evidence of bias and personal interest.
8. THAT while considering the above-stated grounds, it is our humble prayer that the court quashes the conviction and set aside the sentence imposed by the trial court or any other or further relief that this Honorable court deems fit and just to grant, in the interest of justice.”
19. The appeal was canvassed by way of written submissions. The Appellant filed the written submissions dated 9 th May 2025 and the further submissions dated 27 th February 2026. The Respondent ODPP opposed the appeal through the written submissions dated 22 nd October 2025 .
ANALYSIS AND DETERMINATION
20. I have carefully considered this appeal, the record of the trial before
the lower court as well as the written submissions filed by both parties.
21. This is a first appeal in which the duty of the Court is to re-examine
and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of OKENO -VS- REPUBLIC [1972] EA 32 the court set out the duties of the appellate court as follows:-
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174).
22. Similarly in the case of DAVID NJUGUNA WAIRIMU -vs-
REPUBLIC [2010] eKLR the Court of Appeal stated as follows:-
“The duty of the first appellate court is to analyse 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. We do not think there is anything objectionable in doing so, provided that 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 decisions.”
23. On the question of age the complainant told the court that she was
born on 3 rd May 2006 and was aged fifteen (15) years old at the time of the trial, PW4 who was the complainants mother confirmed that her daughter was born on 3 rd May 2006 . Both PW1 and the complainant identify the complainant’s birth certificate Serial No 153437 which was produced as an exhibit by the investigating officer ( Pexb 4 ). The document confirms that the complainant was born on 3 rd May 2006 . This is reliable evidence which was not challenged or controverted by the Defence. I therefore find that it was satisfactorily proved that the complainant was aged fourteen (14) years and was therefore a minor at the time of the incident.
24. The appellant faced a charge of ‘ attempted defilement’ Section
9(1) of the Sexual Offences Act 2006 provides as follows:-
“(1) A person who attempts to commit an act which would
cause penetration with a child is guilty of an offence termed
attempted defilement.’
25. Therefore it is not a requirement that ‘penetration be proved in
order to prove this offence. The complainant’s evidence was that the appellant called her ostensibly to collect an item to take to her mother. The child went to the appellant’s house and upon entering the appellant locked the door. He undressed the child and laid her on the bed. In her own words the complainant stated as follows:-
“He [the appellant] led me to his bedroom, removed my clothes and led me to the bed and did bad manners to me. He took his thing and inserted it in my body part which I use to urinate. His thing is used to urinate too. He defiled me once. …………….. I was lying on his bed. We were both naked as we lay on the bed. I asked him to let me go.”
26. The complainant gave a graphic account of what the appellant did to
her. It is unlikely that the complainant fabricated this story - indeed she had no reason to do so.
27. The complainant described what was done to her as ‘bad manners’.
As a young child she obviously did not have adequate vocabulary
to describe the sexual act. The complainant alleged that the appellant placed his penis into her vagina. It has been held in many cases that even the most minute and fleeting act of penetration would amount to defilement. However the prosecution opted to charge the appellant with attempted defilement instead.
28. PW2 was the doctor form Mukurwe-ini Hospital. He produced the P3
form dated 19 th June 2020 Pexb 1 indicates that upon examination the complainant was found to have an intact hymen which indicates that full penetration did not occur. The only medical finding related to poor hygiene which the minor was counselled.
29. On the question of identification the complainant positively identified
the appellant as the man who assaulted her. The incident occurred in broad day light and the child was alone with the appellant in his house. She had ample time and opportunity to see the appellant.
30. The appellant was a fellow villager and was a person well known to
the child. She referred to the appellant as ‘ Maina’ which was his given name. Thus there is clear evidence of recognition. In the case of ANJONONI -VS- REPUBLIC [1980] eKLR the court stated that
“…………………..recognition of an assailant is more
satisfactory, more assuring and more reliable than identification of a stranger because it depends upon
the personal knowledge of the assailant in some form or another.”
31. The complainant told the court that she was in the company of two
other girls when the appellant called her to his house. PW7 ‘FMW’ a sister of the complainant who was in the company of the complainant at the material time, told the court that she heard the appellant call the complainant to his house to collect an item to take to her mother. In her evidence PW7 said
“The accused spoke to M to pick something belonging to her mother. M went to pick/collect a bag and Maina closed the door and we were told to leave. We stood outside Maina’s house before Maina called her.”
32. PW7 who also knew the appellant well identified him in court.
33. PW8 ‘YW’ the other child who accompanied the complainant to fetch
water states that she went home immediately after collecting the water
and did not see the appellant at all that day.
34. The evidence of the complainant was further corroborated in all
material aspects by the testimony of PW3 who was also a neighbour of the appellant and indeed was an uncle to the appellant. PW3 told the court that on 17 th June 2020 at 4.00pm he heard a shout from the appellant’s house. PW4 went to check and upon knocking and calling out, the appellant opened the door. According to PW3 the appellant came to the door naked holding his trouser in his hand. Upon seeing PW3 the appellant fled through the kitchen window.
35. Upon entering the house PW3 found the complainant in the bed
naked. Why would the appellant an adult man be locked up in his house naked with a minor who was also naked on his bed, unless he had some lecherous intention towards the child. As stated earlier PW3 who was a relative to the appellant and who knew him well also positively identified the appellant.
36. It is pertinent to note that the appellant vanished from his home the
day of the incident. PW9 PC Theuri confirmed that he visited the home of the appellant several times in an attempt to arrest appellant but failed to find him there. PW9 told the court that he found the house locked and abandoned.
37. PW4 who was the complainant’s mother told the court that the
appellant disappeared from the village and was not seen again until 30 th August 2021 which was fourteen (14) months after the incident. The fact that the appellant chose to abscond from his own home is clear evidence of a guilty mind. Moreover upon being spotted by PW4 the appellant again ran away and it required the assistance from fellow villagers to apprehend him. This is corroborated by PW9 . It is clear that the appellant had something to hide.
38. In his defence the appellant denied having molested the complainant
at all. The appellant claimed that the charges were instigated by his uncle PW3 with whom he has a bad relationship as PW3 wanted to take over the appellant’s land. Firstly even if the appellant alleges his uncle had a problem with him, what possible motive would a fourteen (14) year old child have to frame him. Did the child also want to take over the Appellant’s land? I do not think so.
39. The appellant stated that PW3 threatened him several times and
states that he reported the said threats to the police. However under cross-examination the appellant admitted that he had no evidence e.g an OB report to prove that he had indeed reported any threats
by PW3 to the police.
40. Secondly under cross-examination the appellant (who during the trial
was represented by counsel) admitted that no questions were put to PW3 regarding this alleged grudge. This means that the appellant did not instruct his lawyer regarding this alleged grudge. It is clear that his issue of a grudge with PW3 was a mere afterthought and was rightfully dismissed by the trial court.
41. Regarding his disappearance after the incident the appellant denied
that he had fled after the incident. He claims that he was away at work and confirms that the complainant’s mother arrested him at the market. Why would the police PW9 claim that they had failed to trace the appellant if he was at home all the while? The Appellant did not call any witness e.g. her employer and/or workmates to confirm this defence. I find that this defence is not credible at all.
42. Based on the above I find that the appellant’s defence had no merit.
The evidence of the complainant was corroborated by the other witnesses. I am satisfied that it was proved beyond reasonable doubt that the appellant lured the minor to his house. His attempt to defile her was thwarted by PW3 who came to the child’s rescue. The incident was reported immediately to police. I therefore find that
the appellant’s conviction was sound and I affirm said conviction.
43. Following his conviction the appellant was invited to make remarks in
mitigation. The court did consider the said mitigation as well as the
period of time the appellant had spent in remand. The court
eventually sentenced the appellant to serve ten (10) years imprisonment.
44. Section 9(2) of the Sexual Offences Act provides that
“(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.”
45. The law provides for a mandatory minimum sentence upon conviction
for the offence of Attempted Defilement. The constitutionality of mandatory minimum sentences under the Sexual Offences Act was upheld by the Supreme Court in the case of REPUBLIC -VS- JOSHUA GICHUKI MWANGI [2023] eKLR . In the circumstances I am satisfied that the sentence imposed by the court was lawful and I uphold that sentence.
46. Finally this appeal fails. The conviction of the appellant by the trial
court is affirmed and the ten (10) years sentence is upheld.
Dated in Nyeri this 3 rd day of July 2026
HIGH COURT CRIMINAL APPEAL CASE NO. E024 OF 2025 JUDGEMENT Page 8 of 18