(arising from the original conviction and sentence in Malindi Magistrate's Court Criminal Case No. MCSO/E040/2025 by Hon. J. S. Wesonga – SPM)
A. Introduction
1. Siamini Changawa Karisa (hereinafter the "Appellant") brought this appeal challenging the conviction, and sentence handed down by the Honourable J. S. Wesonga (Senior Principal Magistrate) at the Malindi Magistrate’s Court on the 21 st November, 2025, and subsequently sentenced on the 11 th December, 2025.
2. The Appellant was charged, tried, and convicted of the offence of Attempted Defilement Contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act (No. 3 of 2006), and sentenced to serve ten (10) years’ imprisonment.
B. Brief Facts
3. The prosecution's case revolved around allegations that on diverse dates in May 2024, at the Ndokolani area, Watamu Location within Malindi Sub-County, Kilifi County, the Appellant attempted to defile a minor, J.M.M., a boy aged 11 years.
4. It was alleged that the Appellant, a frequent visitor and acquaintance of the complainant’s father, took advantage of the parents’ absence to forcefully undress the minor, apply saliva to his anal area, and attempt to insert his penis.
5. The matter came to a head on 5 th October 2024, when the complainant's mother, returning unexpectedly from a nearby clinic, allegedly caught the Appellant red-handed kneeling and engaging in an indecent act with the minor. Following a report to the police and subsequent investigations, the Appellant was arrested, charged, and subjected to trial.
C. The Appeal and Grounds of Appeal
6. Being aggrieved by the conviction and sentence, the Appellant filed an appeal raising grounds challenging the trial court’s evaluation of evidence and finding of guilt. In summary, the grounds of appeal contend that:
a) The trial court erred in law and fact by failing to properly evaluate the defence testimony and shifting the burden of proof.
b) The trial court misapprehended the evidence concerning the identification and presence of the Appellant at the scene.
c) The conviction was based on contradictions and inconsistencies in the prosecution's case, particularly regarding the medical evidence and the surrounding circumstances of the alleged arrest.
d) The trial court erred in dismissing the Appellant's defence of a framed charge arising from prior personal differences with the complainant's family.
D. Submissions by Parties
The Appellant's Case:
7. Through oral and written arguments, the Appellant maintained his innocence, asserting that he was falsely implicated due to a prior dispute with the complainant’s mother regarding his friendship with the complainant's father.
8. He argued that the medical evidence showing no physical injuries or lacerations contradicted the severe allegations made by the prosecution witnesses.
The Respondent’s Case:
9. The State opposed the appeal, submitting that the prosecution proved all essential elements of the offence beyond any reasonable doubt.
10. The Respondent contended that the minor complainant (PW1) and his mother (PW2) gave consistent, cogent, and unshaken eyewitness accounts of the events, and that the medical findings were fully consistent with the legal threshold required for an inchoate offence like attempted defilement.
E. Evidence Before the Lower Court
The trial court heard testimony from four (4) prosecution witnesses:
11. PW1 (J.M.M.): The 11-year-old complainant testified regarding the repeated incidents in May 2024 where the Appellant undressed him, applied saliva, and attempted anal penetration, as well as the incident on 5 th October 2024.
12. PW2 (Beatrice Makena Muthee): The complainant's mother testified that upon returning from the clinic on 5 th October 2024, she directly witnessed the Appellant kneeling next to her son and committing the impugned act before fleeing.
13. PW3 (Elijah Bidii Ambani): The clinical officer who examined the complainant on 5 th October 2024 confirmed that while there were no physical injuries or tears around the anal area, the history given pointed to attempted sodomy.
14. PW4 (PC(W) Rukia Zahra): The investigating officer detailed receiving the report, issuing and processing the P3 form, and coordinating the apprehension of the Appellant.
The Defence:
15. The Appellant gave a sworn statement denying the charges, claiming he was arrested near Gede Police Station and framed due to personal friction with the complainant’s family.
F. Issues for Determination
16. From the record and the grounds raised, this Court identifies the following main issues for determination:
i Whether the identity of the Appellant as the perpetrator was positively and water-tightly established.
ii Whether the prosecution proved the legal elements of Attempted Defilement Contrary to Section 9(1) of the Sexual Offences Act beyond a reasonable doubt.
iii Whether the trial court adequately considered and properly evaluated the Appellant's defence.
G. Legal Analysis
i. Whether the identity of the Appellant as the perpetrator was positively and water-tightly established.
17. The complainant (PW1) and his mother (PW2) knew the Appellant well prior to the incidents as an acquaintance of the household.
18. Recognition under broad daylight conditions, coupled with PW2 catching the Appellant directly at the scene on 5 th October 2024, leaves no room for mistaken identity.
19. The trial court correctly held that identification was positive, consistent, and unequivocal.
ii. Whether the prosecution proved the legal elements of Attempted Defilement Contrary to Section 9(1) of the Sexual Offences Act beyond a reasonable doubt.
20. For a charged premised on Section 9(1) of the Sexual Offences Act to hold, the prosecution must prove the following elements to establish the offence of attempted defilement as set out in Benson Musumbi v Republic [2019] eKLR and John Gatheru Wanyoike v Republic [2019] eKLR. Thus the following ingredients must be proved.
21. The prosecution must prove that the victim is a minor as defined under the Children Act. In this case, it was proved that the complainant was born on 25 th September 2013 via certificate of birth (PEXH 3), making him 10–11 years old at the time of the offences.
22. Under Section 9(1) of the Sexual Offences Act and Section 388 of the Criminal Procedure Code, an attempt requires proof of an intention to commit an offence coupled with an overt act towards its execution, falling short of full consummation due to intervening factors.
23. The prosecution must prove an intention to commit the offence coupled with an overt act toward its execution, falling short of full penetration due to intervening factors or circumstances such as being interrupted or in a hurry.
24. The acts of applying saliva, rubbing against the minor's anus, and attempting penetration clearly demonstrated the requisite criminal intent.
25. This was established through evidence of the accused forcefully undressing the minor, applying saliva, rubbing against his anus, and attempting insertion.
26. Also the prosecution must establish beyond reasonable doubt that the accused person was the perpetrator of the acts.
27. The Appellant is a person well known to the minor and the family. From the evidenced adduced before the trial court, this was proven through consistent eyewitness recognition by the complainant (PW1) and direct first-hand testimony from the complainant's mother (PW2), who caught the accused red-handed at the scene.
iii. Whether the trial court adequately considered and properly evaluated the Appellant's defence.
28. The Appellant’s defence of frame-up was evaluated by the trial magistrate and correctly dismissed as a bare denial. No credible evidence or particulars were brought forward to substantiate a malicious conspiracy by the family to fabricate such grave allegations against him.
H. Disposition
29. Upon re-evaluating and analysing the entire record of the lower court independently, this Court finds that the conviction was soundly anchored on cogent and overwhelming evidence. The appeal lacks merit in its entirety.
30. Accordingly, it is hereby ordered as follows:
a) The appeal against conviction for Attempted Defilement Contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act is hereby dismissed.
b) The sentence of ten (10) years’ imprisonment imposed by the trial court, running from the date of arrest is hereby upheld.
DATED AND DELIVERED AT MALINDI THIS 22 ND DAY OF SEPTEMBER 2026.
C. AKAIGWA
JUDGE
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A. Introduction
1. Siamini Changawa Karisa (hereinafter the "Appellant") brought this appeal challenging the conviction, and sentence handed down by the Honourable J. S. Wesonga (Senior Principal Magistrate) at the Malindi Magistrate’s Court on the 21 st November, 2025, and subsequently sentenced on the 11 th December, 2025.
2. The Appellant was charged, tried, and convicted of the offence of Attempted Defilement Contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act (No. 3 of 2006), and sentenced to serve ten (10) years’ imprisonment.
B. Brief Facts
3. The prosecution's case revolved around allegations that on diverse dates in May 2024, at the Ndokolani area, Watamu Location within Malindi Sub-County, Kilifi County, the Appellant attempted to defile a minor, J.M.M., a boy aged 11 years.
4. It was alleged that the Appellant, a frequent visitor and acquaintance of the complainant’s father, took advantage of the parents’ absence to forcefully undress the minor, apply saliva to his anal area, and attempt to insert his penis.
5. The matter came to a head on 5 th October 2024, when the complainant's mother, returning unexpectedly from a nearby clinic, allegedly caught the Appellant red-handed kneeling and engaging in an indecent act with the minor. Following a report to the police and subsequent investigations, the Appellant was arrested, charged, and subjected to trial.
C. The Appeal and Grounds of Appeal
6. Being aggrieved by the conviction and sentence, the Appellant filed an appeal raising grounds challenging the trial court’s evaluation of evidence and finding of guilt. In summary, the grounds of appeal contend that:
a) The trial court erred in law and fact by failing to properly evaluate the defence testimony and shifting the burden of proof.
b) The trial court misapprehended the evidence concerning the identification and presence of the Appellant at the scene.
c) The conviction was based on contradictions and inconsistencies in the prosecution's case, particularly regarding the medical evidence and the surrounding circumstances of the alleged arrest.
d) The trial court erred in dismissing the Appellant's defence of a framed charge arising from prior personal differences with the complainant's family.
D. Submissions by Parties
The Appellant's Case:
7. Through oral and written arguments, the Appellant maintained his innocence, asserting that he was falsely implicated due to a prior dispute with the complainant’s mother regarding his friendship with the complainant's father.
8. He argued that the medical evidence showing no physical injuries or lacerations contradicted the severe allegations made by the prosecution witnesses.
The Respondent’s Case:
9. The State opposed the appeal, submitting that the prosecution proved all essential elements of the offence beyond any reasonable doubt.
10. The Respondent contended that the minor complainant (PW1) and his mother (PW2) gave consistent, cogent, and unshaken eyewitness accounts of the events, and that the medical findings were fully consistent with the legal threshold required for an inchoate offence like attempted defilement.
E. Evidence Before the Lower Court
The trial court heard testimony from four (4) prosecution witnesses:
11. PW1 (J.M.M.): The 11-year-old complainant testified regarding the repeated incidents in May 2024 where the Appellant undressed him, applied saliva, and attempted anal penetration, as well as the incident on 5 th October 2024.
12. PW2 (Beatrice Makena Muthee): The complainant's mother testified that upon returning from the clinic on 5 th October 2024, she directly witnessed the Appellant kneeling next to her son and committing the impugned act before fleeing.
13. PW3 (Elijah Bidii Ambani): The clinical officer who examined the complainant on 5 th October 2024 confirmed that while there were no physical injuries or tears around the anal area, the history given pointed to attempted sodomy.
14. PW4 (PC(W) Rukia Zahra): The investigating officer detailed receiving the report, issuing and processing the P3 form, and coordinating the apprehension of the Appellant.
The Defence:
15. The Appellant gave a sworn statement denying the charges, claiming he was arrested near Gede Police Station and framed due to personal friction with the complainant’s family.
F. Issues for Determination
16. From the record and the grounds raised, this Court identifies the following main issues for determination:
i Whether the identity of the Appellant as the perpetrator was positively and water-tightly established.
ii Whether the prosecution proved the legal elements of Attempted Defilement Contrary to Section 9(1) of the Sexual Offences Act beyond a reasonable doubt.
iii Whether the trial court adequately considered and properly evaluated the Appellant's defence.
G. Legal Analysis
i. Whether the identity of the Appellant as the perpetrator was positively and water-tightly established.
17. The complainant (PW1) and his mother (PW2) knew the Appellant well prior to the incidents as an acquaintance of the household.
18. Recognition under broad daylight conditions, coupled with PW2 catching the Appellant directly at the scene on 5 th October 2024, leaves no room for mistaken identity.
19. The trial court correctly held that identification was positive, consistent, and unequivocal.
ii. Whether the prosecution proved the legal elements of Attempted Defilement Contrary to Section 9(1) of the Sexual Offences Act beyond a reasonable doubt.
20. For a charged premised on Section 9(1) of the Sexual Offences Act to hold, the prosecution must prove the following elements to establish the offence of attempted defilement as set out in Benson Musumbi v Republic [2019] eKLR and John Gatheru Wanyoike v Republic [2019] eKLR. Thus the following ingredients must be proved.
21. The prosecution must prove that the victim is a minor as defined under the Children Act. In this case, it was proved that the complainant was born on 25 th September 2013 via certificate of birth (PEXH 3), making him 10–11 years old at the time of the offences.
22. Under Section 9(1) of the Sexual Offences Act and Section 388 of the Criminal Procedure Code, an attempt requires proof of an intention to commit an offence coupled with an overt act towards its execution, falling short of full consummation due to intervening factors.
23. The prosecution must prove an intention to commit the offence coupled with an overt act toward its execution, falling short of full penetration due to intervening factors or circumstances such as being interrupted or in a hurry.
24. The acts of applying saliva, rubbing against the minor's anus, and attempting penetration clearly demonstrated the requisite criminal intent.
25. This was established through evidence of the accused forcefully undressing the minor, applying saliva, rubbing against his anus, and attempting insertion.
26. Also the prosecution must establish beyond reasonable doubt that the accused person was the perpetrator of the acts.
27. The Appellant is a person well known to the minor and the family. From the evidenced adduced before the trial court, this was proven through consistent eyewitness recognition by the complainant (PW1) and direct first-hand testimony from the complainant's mother (PW2), who caught the accused red-handed at the scene.
iii. Whether the trial court adequately considered and properly evaluated the Appellant's defence.
28. The Appellant’s defence of frame-up was evaluated by the trial magistrate and correctly dismissed as a bare denial. No credible evidence or particulars were brought forward to substantiate a malicious conspiracy by the family to fabricate such grave allegations against him.
H. Disposition
29. Upon re-evaluating and analysing the entire record of the lower court independently, this Court finds that the conviction was soundly anchored on cogent and overwhelming evidence. The appeal lacks merit in its entirety.
30. Accordingly, it is hereby ordered as follows:
a) The appeal against conviction for Attempted Defilement Contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act is hereby dismissed.
b) The sentence of ten (10) years’ imprisonment imposed by the trial court, running from the date of arrest is hereby upheld.
DATED AND DELIVERED AT MALINDI THIS 22 ND DAY OF SEPTEMBER 2026.
C. AKAIGWA
JUDGE
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