1. The Appellant, Simon Mwenda Maithya, was charged before the Chief Magistrate’s Court at Kitui with attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No. 3 of 2006. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Act. The particulars of the main charge were that on 3rd December 2021 at about 7.30 p.m. at Kyanika Location, Nzambani Sub-County, Kitui County, the Appellant intentionally attempted to cause his penis to penetrate the vagina of SM, a child aged 7 years.
2. The prosecution called four witnesses in support of its case. PW1 was SM, the complainant testified that the Appellant did “bad manners” to her vagina. The incident caused her to make noise, attracting the attention of neighbours. She knew the Appellant as a person who was their neighbour and stated that she could hear his mother calling him by name.
3. PW2, Alice Mwikali, was the complainant’s mother testified that she left complainant alone in the house and upon return found without her pants. Her NEIGHBOUR Upon checking her, she observed that the vagina was dirty, with some fluid and injuries. She reported the matter to the police and the child was taken to hospital.
4. PW3, Robinson Katana, a clinical officer at Kitui County Referral Hospital, examined the complainant and produced a P3 Form dated 6th December 2021 P. Exhibit 1 showing lacerations on the labia majora and labia minora and fresh blood on the vaginal wall but the hymen was intact. PW3 also produced the PRC Form as P. Exhibit 2, and the Age Assessment Report dated 17th January 2022 showing complainant to be 7 years as P. Exhibit 3.
5. PW4, No. 110389 Police Constable Joel Leyangu, upon receiving complainant’s report and medical evidence caused Appellant to be arrested and charged.
6. Aggrieved by the conviction and sentence, the Appellant lodged this appeal challenging both the conviction and the sentence. He subsequently amended his grounds of appeal on 1st September 2026, raising the following grounds:
1) THAT, the learned trial magistrate erred in both law and facts on whereby the prosecution case was not proved beyond reasonable doubt.
2) THAT, there was no sufficient evidence to link the appellant to the offence of Attempted Defilement against complainant.
3) THAT, the learned trial magistrate erred in both law and facts on failing to observe that the complainant was not truthful witness.
4) THAT, the evidence on record was inconsistent, hearsay and a fabrication against appellant.
5) THAT, the learned trial magistrate erred in both law and facts by convicting the Appellant on a defective charge sheet.
6) THAT, the learned trial magistrate erred in both law and facts on failing to adhere to the provisions of Section 333(2) of the CPC.
7. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence adduced before the trial court and draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify. In Okeno v Republic [1972] EA 32, the Court of Appeal for East Africa stated that a first appellate court has a duty to subject the evidence to a fresh and exhaustive examination and to make its own findings and draw its own conclusions.
8. The first issue for determination is whether the charge sheet was defective in a manner that rendered the conviction unsafe. The Appellant challenged the charge principally on account of the discrepancy concerning the time of the alleged offence. Section 134 of the Criminal Procedure Code requires a charge to contain such particulars as are necessary to give an accused person reasonable information as to the nature of the offence with which he is charged. The question is not merely whether there is an irregularity in the particulars, but whether the alleged defect is of such a nature as to occasion prejudice to the accused in understanding and responding to the charge.
9. In Benard Ombuna v Republic [2019] eKLR, the Court of Appeal emphasised that whether a charge is fatally defective is a substantive question rather than one of form. The court must consider whether the defect occasioned prejudice to the accused by leaving him unaware of the nature of the accusation or otherwise preventing him from mounting an appropriate defence.
10. In the present case, the charge identified the offence as attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act, identified the complainant, stated the date and place of the alleged offence and set out the conduct alleged against the Appellant.
11. The discrepancy relied upon by the Appellant concerns the time of the offence. The charge states that the offence was committed at about 7.30 p.m., whereas the evidence of PW1 placed the occurrence during the daytime. The discrepancy ought not to be disregarded merely because time was not an ingredient of the offence. It was a matter for the trial court to evaluate in determining the reliability of the prosecution case. The material question for purposes of the charge, nevertheless, is whether the difference in time deprived the Appellant of reasonable information concerning the accusation he was required to meet. There is nothing on the record to suggest that it did. The Appellant understood the nature of the allegation, participated in the trial and advanced a defence directed at the prosecution case.
12. I therefore find that the discrepancy in time did not render the charge defective or occasion prejudice to the Appellant.
13. The second issue is whether the prosecution proved beyond reasonable doubt the offence of attempted defilement. The burden of proof remained throughout upon the prosecution and never shifted to the Appellant. In Woolmington v Director of Public Prosecutions [1935] AC 462, the principle was stated that the prosecution bears the burden of establishing the guilt of an accused person. The same principle is reflected in Miller v Minister of Pensions [1947] 2 All ER 372, where the court explained the standard of proof beyond reasonable doubt, and in Gerald Ndoho Munjuna v Republic [2016] eKLR. The Appellant was therefore under no obligation to prove his innocence, and his conviction could only properly stand if the prosecution evidence established every essential element of the offence to the required standard.
14. Section 9(1) of the Sexual Offences Act creates the offence of attempted defilement by criminalising an attempt to commit an act which would cause penetration with a child. Section 388 of the Penal Code provides the general statutory framework on attempts and requires an intention to commit an offence accompanied by an act towards its commission which falls short of its completion. The distinction between preparation and an attempt is therefore material. The prosecution was required to establish not merely that the Appellant had an opportunity or intention to commit the offence, but that he had embarked upon its execution and had performed an overt act towards penetration which fell short of completed penetration.
15. The Appellant relied on GOO v Republic [2019] eKLR, where the Court considered the distinction between preparation and attempt and found that the evidence before it did not establish that the appellant had commenced the execution of the intended act of penetration. That decision is distinguishable on the evidence before this Court. In the present case, PW1 testified that the Appellant did “bad manners” to her vagina, causing her to make noise and attract the attention of neighbours. PW2 found the complainant without her pants and observed that her genitalia appeared dirty and had some fluid. PW3 subsequently examined the complainant and recorded lacerations on the labia majora and labia minora and fresh blood on the vaginal wall. The hymen was intact and no spermatozoa were detected.
16. The medical evidence requires closer consideration because, although PW3 found lacerations on the labia majora and labia minora and fresh blood on the vaginal wall, the hymen was intact and no spermatozoa were detected. The absence of an intact hymen or spermatozoa is not, by itself, determinative of whether penetration occurred, since penetration under the Sexual Offences Act does not require complete penetration. On the evidence before the Court, the genital injuries were consistent with partial penetration and, had the Appellant been charged with completed defilement, that evidence would have been capable of supporting such a charge. The evidence therefore goes beyond a mere attempt in the ordinary sense and points to conduct which may amount to completed defilement through partial penetration.
17. The difficulty for the prosecution is that the Appellant was not charged with completed defilement but with attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act. He was tried on that charge and throughout the proceedings was called upon to answer an allegation of attempted rather than completed defilement. Although the evidence may have disclosed partial penetration, the prosecution did not seek to amend the charge so as to expose the Appellant to the more serious allegation and the attendant consequences of such an amendment, including the opportunity to respond to the altered charge. It would therefore be unsafe for this Court, on appeal, to substitute a conviction for completed defilement when that was not the charge upon which the Appellant was tried and when the prosecution did not take the necessary procedural steps to put that allegation before the trial court.
18. In the circumstances, the Appellant is fortunate that the prosecution elected to charge him with attempted defilement, because the evidence went further than was necessary to establish an overt act towards penetration. What is material for present purposes is that the evidence unquestionably established conduct directed towards penetration and, even on the more favourable view to the Appellant, proved the offence with which he was charged beyond reasonable doubt. The Court will therefore retain the conviction for attempted defilement rather than substitute a conviction for completed defilement on the basis of evidence which, although capable of supporting the latter offence, was not the subject of the charge upon which the Appellant was tried.
19. The age of the complainant was equally an essential component of the prosecution case. PW3 produced the Age Assessment Report dated 17th January 2022 as P. Exhibit 3, which assessed the complainant's age at seven years, and there was no evidence adduced by the Appellant capable of displacing that assessment. I therefore find that the prosecution established beyond reasonable doubt that the complainant was a child for purposes of the Sexual Offences Act and, taken together with the evidence concerning the acts directed towards penetration, proved the essential ingredients of the charge of attempted defilement beyond reasonable doubt.
20. The third issue is whether the Appellant was positively identified as the perpetrator and whether the evidence of PW1 was credible and reliable. The Appellant relied on Kyiafi v Woro (1967) GLR 463 and Ndungu Kimanyi v Republic [1979] KLR 283 in challenging the reliability of the prosecution evidence. The authorities underscore the need for a court to subject identification and credibility evidence to careful scrutiny before relying upon it as the basis of a conviction.
21. PW1 was not identifying a stranger. Her evidence was that she knew the Appellant and that he lived near her. She further stated that she could hear his mother calling him by name. Her evidence was therefore one of recognition by a person already known to her. The Appellant himself acknowledged that he knew the complainant and that they lived in the same compound. The circumstances were consequently materially different from those in which a witness is required to identify a stranger seen only briefly or under difficult conditions.
22. The Appellant also challenged the name appearing in the charge, contending that he was Samuel Maithya rather than Simon Mwenda Maithya. That contention, standing alone, did not establish that the person recognised by PW1 was someone other than the Appellant. There was no evidence before the trial court that the person arraigned, tried and convicted was a different person from the person known to PW1. I therefore find that the challenge to the name did not displace the evidence of recognition.
23. The credibility of PW1 must also be considered in light of Section 124 of the Evidence Act, which permits a court, in a sexual offence case, to convict on the evidence of the victim alone where the court is satisfied that the victim is telling the truth and records the reasons for that belief. The Appellant relied on Jacob Odhiambo Omumbo v Republic [2008] eKLR in urging the Court to scrutinise the complainant's evidence with particular care.
24. I have undertaken that scrutiny. In this case, the conviction does not rest solely upon the testimony of PW1. Her account concerning the assault upon her genitalia received material support from the evidence of PW2 and the medical findings of PW3.
25. The evidence of PW2 was relevant to the condition in which the complainant was found shortly after the incident, while the evidence of PW3 provided independent medical evidence of genital injury. The significance of the medical evidence lies in its consistency with the complainant's account that an assault had occurred. Considered together with the recognition evidence of PW1, I find that the prosecution evidence was sufficiently coherent and reliable.
26. The Appellant also relied on the four-day delay before the matter was reported and cited Tekerali son of Korongozi & Others v R (1952) 19 EACA 259 concerning the importance of the first report in testing the truth and accuracy of subsequent evidence.
27. I have considered the delay and the circumstances in which the report was made. A delay in reporting is a matter that may properly be taken into account when assessing credibility, but it does not, without more, render otherwise credible evidence unreliable. There is no evidence that the delay resulted in fabrication or material embellishment of the complainant's account. In the circumstances of this case, I find that the delay did not create a reasonable doubt as to the reliability of PW1.
28. The fourth issue is whether the alleged discrepancy concerning the time of the offence and the evidence relating to the neighbour rendered the conviction unsafe. The charge states that the offence occurred at about 7.30 p.m., but PW1 did not give any contradictory account of the time of the incident. There is therefore no inconsistency on that aspect of the evidence. As regards the neighbour, the evidence does not show that the neighbour witnessed the offence; the neighbour merely made a report. That evidence does not affect PW1's direct account of what happened to her. I therefore find no material inconsistency arising from the matters raised under this ground sufficient to render the conviction unsafe.
29. The fifth issue is whether the trial court properly considered the Appellant's defence and whether the remarks made by the trial magistrate occasioned a miscarriage of justice. The Appellant's defence was principally a denial of the offence together with a challenge to the name appearing in the charge. The burden remained upon the prosecution throughout. The Appellant's failure to call a witness could not relieve the prosecution of that burden and could not properly be treated as evidence of guilt.
30. I have considered the remarks made by the trial magistrate concerning the Appellant, particularly the description of him as “the proverbial monkey who never knew his days have come.” Such language was inappropriate and had no place in a judicial determination of guilt. A judicial officer is required to determine a criminal case on the evidence and the applicable law, bearing in mind throughout that an accused person is presumed innocent until proved guilty.
31. The question for this Court is whether the improper language demonstrates that the Appellant's conviction was based upon his failure to prove his innocence or otherwise occasioned a miscarriage of justice. Having independently reconsidered the evidence, I am satisfied that the conviction was not founded upon the Appellant's failure to call witnesses. The prosecution evidence, considered independently of the Appellant's failure to adduce evidence, established the charge beyond reasonable doubt. The improper remark is therefore deprecated, but it does not, in the circumstances of this case, render the conviction unsafe.
32. The sixth issue is whether the sentence of 12 years' imprisonment was lawful and whether the period spent in custody before sentence was taken into account in accordance with Section 333(2) of the Criminal Procedure Code. Section 9(2) of the Sexual Offences Act provides for imprisonment for a term of not less than ten years for the offence of attempted defilement. The sentence imposed by the trial court was therefore within the statutory range.
33. The Appellant contended that the sentence was harsh and excessive, particularly having regard to his status as a first offender. The Respondent submitted that the trial court properly considered the applicable law, the Appellant's mitigation, his status as a first offender, the age of the complainant and the circumstances of the offence.
34. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal restated the principles governing appellate interference with sentence and emphasised the requirement to take into account the period spent in custody before sentence. I have considered the sentencing proceedings and find no improper principle in the manner in which the trial court arrived at the term of 12 years. The sentence was lawful and is not manifestly excessive in the circumstances.
35. The remaining question is whether the period spent in custody before sentence was taken into account.
36. The record shows that the Appellant was arrested on 5th January 2022 and was convicted and sentenced on 18th May 2022. Section 333(2) of the Criminal Procedure Code requires a sentencing court to take into account the period during which an accused person was held in custody prior to being sentenced. In Bethwel Wilson Kibor v Republic [2009] eKLR the Court of Appeal affirmed that statutory requirement.
37. The sentencing proceedings do not demonstrate that the period from 5th January 2022 to 18th May 2022 was taken into account in determining the commencement of the sentence. take effect from 5th January 2022.
38. Having reconsidered the evidence as a whole, I find that the prosecution proved beyond reasonable doubt. Consequently, the appeal against conviction is dismissed.
39. The 12 years' imprisonment imposed on the Appellant for attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act is upheld.
40. Pursuant to Section 333(2) of the Criminal Procedure Code, the sentence shall take effect from 5th January 2022, being the date of the Appellant's arrest.
2. The prosecution called four witnesses in support of its case. PW1 was SM, the complainant testified that the Appellant did “bad manners” to her vagina. The incident caused her to make noise, attracting the attention of neighbours. She knew the Appellant as a person who was their neighbour and stated that she could hear his mother calling him by name.
3. PW2, Alice Mwikali, was the complainant’s mother testified that she left complainant alone in the house and upon return found without her pants. Her NEIGHBOUR Upon checking her, she observed that the vagina was dirty, with some fluid and injuries. She reported the matter to the police and the child was taken to hospital.
4. PW3, Robinson Katana, a clinical officer at Kitui County Referral Hospital, examined the complainant and produced a P3 Form dated 6th December 2021 P. Exhibit 1 showing lacerations on the labia majora and labia minora and fresh blood on the vaginal wall but the hymen was intact. PW3 also produced the PRC Form as P. Exhibit 2, and the Age Assessment Report dated 17th January 2022 showing complainant to be 7 years as P. Exhibit 3.
5. PW4, No. 110389 Police Constable Joel Leyangu, upon receiving complainant’s report and medical evidence caused Appellant to be arrested and charged.
6. Aggrieved by the conviction and sentence, the Appellant lodged this appeal challenging both the conviction and the sentence. He subsequently amended his grounds of appeal on 1st September 2026, raising the following grounds:
1) THAT, the learned trial magistrate erred in both law and facts on whereby the prosecution case was not proved beyond reasonable doubt.
2) THAT, there was no sufficient evidence to link the appellant to the offence of Attempted Defilement against complainant.
3) THAT, the learned trial magistrate erred in both law and facts on failing to observe that the complainant was not truthful witness.
4) THAT, the evidence on record was inconsistent, hearsay and a fabrication against appellant.
5) THAT, the learned trial magistrate erred in both law and facts by convicting the Appellant on a defective charge sheet.
6) THAT, the learned trial magistrate erred in both law and facts on failing to adhere to the provisions of Section 333(2) of the CPC.
7. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence adduced before the trial court and draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify. In Okeno v Republic [1972] EA 32, the Court of Appeal for East Africa stated that a first appellate court has a duty to subject the evidence to a fresh and exhaustive examination and to make its own findings and draw its own conclusions.
8. The first issue for determination is whether the charge sheet was defective in a manner that rendered the conviction unsafe. The Appellant challenged the charge principally on account of the discrepancy concerning the time of the alleged offence. Section 134 of the Criminal Procedure Code requires a charge to contain such particulars as are necessary to give an accused person reasonable information as to the nature of the offence with which he is charged. The question is not merely whether there is an irregularity in the particulars, but whether the alleged defect is of such a nature as to occasion prejudice to the accused in understanding and responding to the charge.
9. In Benard Ombuna v Republic [2019] eKLR, the Court of Appeal emphasised that whether a charge is fatally defective is a substantive question rather than one of form. The court must consider whether the defect occasioned prejudice to the accused by leaving him unaware of the nature of the accusation or otherwise preventing him from mounting an appropriate defence.
10. In the present case, the charge identified the offence as attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act, identified the complainant, stated the date and place of the alleged offence and set out the conduct alleged against the Appellant.
11. The discrepancy relied upon by the Appellant concerns the time of the offence. The charge states that the offence was committed at about 7.30 p.m., whereas the evidence of PW1 placed the occurrence during the daytime. The discrepancy ought not to be disregarded merely because time was not an ingredient of the offence. It was a matter for the trial court to evaluate in determining the reliability of the prosecution case. The material question for purposes of the charge, nevertheless, is whether the difference in time deprived the Appellant of reasonable information concerning the accusation he was required to meet. There is nothing on the record to suggest that it did. The Appellant understood the nature of the allegation, participated in the trial and advanced a defence directed at the prosecution case.
12. I therefore find that the discrepancy in time did not render the charge defective or occasion prejudice to the Appellant.
13. The second issue is whether the prosecution proved beyond reasonable doubt the offence of attempted defilement. The burden of proof remained throughout upon the prosecution and never shifted to the Appellant. In Woolmington v Director of Public Prosecutions [1935] AC 462, the principle was stated that the prosecution bears the burden of establishing the guilt of an accused person. The same principle is reflected in Miller v Minister of Pensions [1947] 2 All ER 372, where the court explained the standard of proof beyond reasonable doubt, and in Gerald Ndoho Munjuna v Republic [2016] eKLR. The Appellant was therefore under no obligation to prove his innocence, and his conviction could only properly stand if the prosecution evidence established every essential element of the offence to the required standard.
14. Section 9(1) of the Sexual Offences Act creates the offence of attempted defilement by criminalising an attempt to commit an act which would cause penetration with a child. Section 388 of the Penal Code provides the general statutory framework on attempts and requires an intention to commit an offence accompanied by an act towards its commission which falls short of its completion. The distinction between preparation and an attempt is therefore material. The prosecution was required to establish not merely that the Appellant had an opportunity or intention to commit the offence, but that he had embarked upon its execution and had performed an overt act towards penetration which fell short of completed penetration.
15. The Appellant relied on GOO v Republic [2019] eKLR, where the Court considered the distinction between preparation and attempt and found that the evidence before it did not establish that the appellant had commenced the execution of the intended act of penetration. That decision is distinguishable on the evidence before this Court. In the present case, PW1 testified that the Appellant did “bad manners” to her vagina, causing her to make noise and attract the attention of neighbours. PW2 found the complainant without her pants and observed that her genitalia appeared dirty and had some fluid. PW3 subsequently examined the complainant and recorded lacerations on the labia majora and labia minora and fresh blood on the vaginal wall. The hymen was intact and no spermatozoa were detected.
16. The medical evidence requires closer consideration because, although PW3 found lacerations on the labia majora and labia minora and fresh blood on the vaginal wall, the hymen was intact and no spermatozoa were detected. The absence of an intact hymen or spermatozoa is not, by itself, determinative of whether penetration occurred, since penetration under the Sexual Offences Act does not require complete penetration. On the evidence before the Court, the genital injuries were consistent with partial penetration and, had the Appellant been charged with completed defilement, that evidence would have been capable of supporting such a charge. The evidence therefore goes beyond a mere attempt in the ordinary sense and points to conduct which may amount to completed defilement through partial penetration.
17. The difficulty for the prosecution is that the Appellant was not charged with completed defilement but with attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act. He was tried on that charge and throughout the proceedings was called upon to answer an allegation of attempted rather than completed defilement. Although the evidence may have disclosed partial penetration, the prosecution did not seek to amend the charge so as to expose the Appellant to the more serious allegation and the attendant consequences of such an amendment, including the opportunity to respond to the altered charge. It would therefore be unsafe for this Court, on appeal, to substitute a conviction for completed defilement when that was not the charge upon which the Appellant was tried and when the prosecution did not take the necessary procedural steps to put that allegation before the trial court.
18. In the circumstances, the Appellant is fortunate that the prosecution elected to charge him with attempted defilement, because the evidence went further than was necessary to establish an overt act towards penetration. What is material for present purposes is that the evidence unquestionably established conduct directed towards penetration and, even on the more favourable view to the Appellant, proved the offence with which he was charged beyond reasonable doubt. The Court will therefore retain the conviction for attempted defilement rather than substitute a conviction for completed defilement on the basis of evidence which, although capable of supporting the latter offence, was not the subject of the charge upon which the Appellant was tried.
19. The age of the complainant was equally an essential component of the prosecution case. PW3 produced the Age Assessment Report dated 17th January 2022 as P. Exhibit 3, which assessed the complainant's age at seven years, and there was no evidence adduced by the Appellant capable of displacing that assessment. I therefore find that the prosecution established beyond reasonable doubt that the complainant was a child for purposes of the Sexual Offences Act and, taken together with the evidence concerning the acts directed towards penetration, proved the essential ingredients of the charge of attempted defilement beyond reasonable doubt.
20. The third issue is whether the Appellant was positively identified as the perpetrator and whether the evidence of PW1 was credible and reliable. The Appellant relied on Kyiafi v Woro (1967) GLR 463 and Ndungu Kimanyi v Republic [1979] KLR 283 in challenging the reliability of the prosecution evidence. The authorities underscore the need for a court to subject identification and credibility evidence to careful scrutiny before relying upon it as the basis of a conviction.
21. PW1 was not identifying a stranger. Her evidence was that she knew the Appellant and that he lived near her. She further stated that she could hear his mother calling him by name. Her evidence was therefore one of recognition by a person already known to her. The Appellant himself acknowledged that he knew the complainant and that they lived in the same compound. The circumstances were consequently materially different from those in which a witness is required to identify a stranger seen only briefly or under difficult conditions.
22. The Appellant also challenged the name appearing in the charge, contending that he was Samuel Maithya rather than Simon Mwenda Maithya. That contention, standing alone, did not establish that the person recognised by PW1 was someone other than the Appellant. There was no evidence before the trial court that the person arraigned, tried and convicted was a different person from the person known to PW1. I therefore find that the challenge to the name did not displace the evidence of recognition.
23. The credibility of PW1 must also be considered in light of Section 124 of the Evidence Act, which permits a court, in a sexual offence case, to convict on the evidence of the victim alone where the court is satisfied that the victim is telling the truth and records the reasons for that belief. The Appellant relied on Jacob Odhiambo Omumbo v Republic [2008] eKLR in urging the Court to scrutinise the complainant's evidence with particular care.
24. I have undertaken that scrutiny. In this case, the conviction does not rest solely upon the testimony of PW1. Her account concerning the assault upon her genitalia received material support from the evidence of PW2 and the medical findings of PW3.
25. The evidence of PW2 was relevant to the condition in which the complainant was found shortly after the incident, while the evidence of PW3 provided independent medical evidence of genital injury. The significance of the medical evidence lies in its consistency with the complainant's account that an assault had occurred. Considered together with the recognition evidence of PW1, I find that the prosecution evidence was sufficiently coherent and reliable.
26. The Appellant also relied on the four-day delay before the matter was reported and cited Tekerali son of Korongozi & Others v R (1952) 19 EACA 259 concerning the importance of the first report in testing the truth and accuracy of subsequent evidence.
27. I have considered the delay and the circumstances in which the report was made. A delay in reporting is a matter that may properly be taken into account when assessing credibility, but it does not, without more, render otherwise credible evidence unreliable. There is no evidence that the delay resulted in fabrication or material embellishment of the complainant's account. In the circumstances of this case, I find that the delay did not create a reasonable doubt as to the reliability of PW1.
28. The fourth issue is whether the alleged discrepancy concerning the time of the offence and the evidence relating to the neighbour rendered the conviction unsafe. The charge states that the offence occurred at about 7.30 p.m., but PW1 did not give any contradictory account of the time of the incident. There is therefore no inconsistency on that aspect of the evidence. As regards the neighbour, the evidence does not show that the neighbour witnessed the offence; the neighbour merely made a report. That evidence does not affect PW1's direct account of what happened to her. I therefore find no material inconsistency arising from the matters raised under this ground sufficient to render the conviction unsafe.
29. The fifth issue is whether the trial court properly considered the Appellant's defence and whether the remarks made by the trial magistrate occasioned a miscarriage of justice. The Appellant's defence was principally a denial of the offence together with a challenge to the name appearing in the charge. The burden remained upon the prosecution throughout. The Appellant's failure to call a witness could not relieve the prosecution of that burden and could not properly be treated as evidence of guilt.
30. I have considered the remarks made by the trial magistrate concerning the Appellant, particularly the description of him as “the proverbial monkey who never knew his days have come.” Such language was inappropriate and had no place in a judicial determination of guilt. A judicial officer is required to determine a criminal case on the evidence and the applicable law, bearing in mind throughout that an accused person is presumed innocent until proved guilty.
31. The question for this Court is whether the improper language demonstrates that the Appellant's conviction was based upon his failure to prove his innocence or otherwise occasioned a miscarriage of justice. Having independently reconsidered the evidence, I am satisfied that the conviction was not founded upon the Appellant's failure to call witnesses. The prosecution evidence, considered independently of the Appellant's failure to adduce evidence, established the charge beyond reasonable doubt. The improper remark is therefore deprecated, but it does not, in the circumstances of this case, render the conviction unsafe.
32. The sixth issue is whether the sentence of 12 years' imprisonment was lawful and whether the period spent in custody before sentence was taken into account in accordance with Section 333(2) of the Criminal Procedure Code. Section 9(2) of the Sexual Offences Act provides for imprisonment for a term of not less than ten years for the offence of attempted defilement. The sentence imposed by the trial court was therefore within the statutory range.
33. The Appellant contended that the sentence was harsh and excessive, particularly having regard to his status as a first offender. The Respondent submitted that the trial court properly considered the applicable law, the Appellant's mitigation, his status as a first offender, the age of the complainant and the circumstances of the offence.
34. In Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR, the Court of Appeal restated the principles governing appellate interference with sentence and emphasised the requirement to take into account the period spent in custody before sentence. I have considered the sentencing proceedings and find no improper principle in the manner in which the trial court arrived at the term of 12 years. The sentence was lawful and is not manifestly excessive in the circumstances.
35. The remaining question is whether the period spent in custody before sentence was taken into account.
36. The record shows that the Appellant was arrested on 5th January 2022 and was convicted and sentenced on 18th May 2022. Section 333(2) of the Criminal Procedure Code requires a sentencing court to take into account the period during which an accused person was held in custody prior to being sentenced. In Bethwel Wilson Kibor v Republic [2009] eKLR the Court of Appeal affirmed that statutory requirement.
37. The sentencing proceedings do not demonstrate that the period from 5th January 2022 to 18th May 2022 was taken into account in determining the commencement of the sentence. take effect from 5th January 2022.
38. Having reconsidered the evidence as a whole, I find that the prosecution proved beyond reasonable doubt. Consequently, the appeal against conviction is dismissed.
39. The 12 years' imprisonment imposed on the Appellant for attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act is upheld.
40. Pursuant to Section 333(2) of the Criminal Procedure Code, the sentence shall take effect from 5th January 2022, being the date of the Appellant's arrest.