https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11983

Gitau v Republic (Criminal Appeal E018 of 2023) [2026] KEHC 11983 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11983 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E018 of 2023 SC Chirchir, J July 23, 2026 Between Paul Kimani Gitau Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. J. Irura (PM) in Kigumo Sexual Offence Case No. E003 of 2021, delivered on the 27th day of July, 2022) Judgment 1.The Appellant was charged before the trial court, with 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(The Act). The particulars of the charge were that on the 30th day of December 2020 at around 1430hrs at [Particulars Withheld] area in Muranga-South Sub County within Murang’a County, the accused person intentionally attempted to cause his penis to penetrate the vagina of NNN, a child aged 13 years. 2.He faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Act with the particulars being that at the same time and place, he intentionally touched the vagina of NNN with his penis. 3.Following a full trial, the Appellant was convicted of the main charge and sentenced to serve ten (10) years in prison. 4.Aggrieved by the conviction and sentence, the Appellant moved this court by way of Petition of Appeal. Amended Petition of Appeal 5.The Appellant, through his amended petition, raised the following grounds:1)That, the learned trial magistrate erred in law and fact by convicting the appellant when the elements of the offense of attempted defilement were not proved beyond reasonable doubt.2)That, the learned trial magistrate erred in law and fact by failing to note that the prosecution's evidence was riddled with material contradictions and inconsistencies, which were uncorroborated and thus incapable of sustaining a safe conviction.3)That, the learned trial magistrate erred in both law and fact by failing to note that the key crucial prosecution witnesses were not availed to tender their evidence.4)That, the learned trail magistrate erred in both fact and law by failing to find that PW1 was not a credible witness worth of belief. 6.The Appeal was heard by way of written submissions. Appellant’s submissions 7.It is the Appellant’s submission that the prosecution failed to discharge the duty of proving its case beyond reasonable doubt as required in criminal cases. It is submitted that the offense of attempted defilement requires the prosecution to prove a deliberate act aimed at defiling the complainant that fell short of penetration. 8.The Appellant argues that the evidence adduced by PW1 did not conclusively establish such an attempt, as she only testified that the Appellant allegedly tried to pull down her trousers. 9.To buttress this submission, in this regard, he has relied on the case of Daniel Ombasa Omwoyo v Republic [2016] eKLR where the court observed:“…The mere action of attempting to remove clothes by the appellant in my humble view does not qualify to be attempted defilement and neither does the same even qualify to be deemed as indecent assault...” 10.He further cited the decision in David Aketch Ochieng v R, [2015] eKLR where it was held that a successful prosecution for attempted defilement must adduce sufficient evidence of attempted penetration, such as bruises, lacerations, or the finding of male discharge. The Appellant points out that the medical evidence from PW3 confirmed an absence of any such physical or biological findings. 11.The Appellant further argues that the conviction was unsafe as the prosecution’s evidence was riddled with material contradictions that remained unresolved by the trial court. Specifically, it is pointed out that while PW1 testified that the Appellant followed her into a toilet, her mother (PW2) and the Investigating Officer (PW4) stated that the Appellant emerged from a different toilet several minutes after the girl had already come out. 12.In this regard, the Appellant cited Richard Munene v Republic (2018) eKLR, in which it was held that:“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable... they must be resolved in favour of the accused”. 13.The Appellant has further relied on the finding of the court in Philip Nzaka Watu vs. Republic (2016) eKLR, where the court held that evidence which is a mere amalgam of inconsistent versions cannot satisfy the court beyond reasonable doubt. 14.The Appellant faults the prosecution for failing to summon crucial eyewitnesses mentioned during the trial, namely the bar attendant who allegedly heard the commotion and came to the minor’s rescue, and the other tenants or an “old man” mentioned by PW2. 15.It is further submitted that PW1 was not a truthful witness. The Appellant points out that she had known him for years without any prior inappropriate conduct, making the alleged incident implausible. Further, he highlights the testimony of PW2, who admitted that when she first interrogated her daughter immediately after the incident, the minor stated that “nothing had happened”. 16.The Appellant has cited the decision in Ndung’u Kimani vs. Republic (1979) KLR 282, submitting that a witness who raises a suspicion about their trustworthiness or integrity is an unreliable witness whose evidence is unsafe to accept. 17.Finally, the Appellant maintained that the charges herein were a fabrication following a disagreement with PW2 over money. He submits that this version of events was not effectively rebutted and relies on the principle in Sekitoliko vs. Uganda (1967) EA 53: where the court stated that “The prosecution has a duty to prove all the elements of the offence beyond reasonable doubt and that the conviction of the accused is depended upon the strength of the prosecution case and not the weakness of the defence case”. Respondent’s Submissions 18.The Respondent submits that the occurrence of events as presented by the prosecution witnesses was chronological, consistent, and neither was uncorroborated nor contradictory. 19.On the identity of the perpetrator, the respondent submits that this was a case of identification through recognition, as the Appellant was a neighbour of and well known to the victim. The respondent has relied on the decision in the case of Anjononi & Others vs. Republic (1980) KLR 59, where the Court of Appeal held: “...recognition of an assailant is more satisfactory, more reassuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another”. 20.The Respondent argues that the victim’s age was proven beyond doubt through the production of a birth certificate and the oral testimony of PW1 and PW2. In this regard the finding in the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR, which settled that age can be proved by documents or the credible oral evidence of the child or parents, was relied on. 21.On the degree of proof required, the Respondent cites the Lord Denning in Miller v Ministry of Pensions (1947) 2 All ER 372, where he held : “That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt... The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice”. 22.The Respondent argues that the prosecution's evidence was strong enough to leave only a remote possibility in the Appellant’s favour and therefore the threshold of proof as set out in Miller’s case ( supra) was met. 23.It is the respondent’s final submission that the 10-year imprisonment term is proper and within the law. They cited the principles in Bernard Kimani Gacheru vs. Republic (2002) eKLR, which established that sentencing is a matter of judicial discretion and an appellate court should not easily interfere unless the sentence is manifestly excessive or based on a wrong principle. Summary of the Evidence The Prosecution’s Case 24.PW1 was the complainant. She testified that she was a student at [Particulars Withheld] Primary School and resided at [Particulars Withheld] area. That on 30th December 2020, which was a Saturday, at around 9:00 a.m., she was washing clothes alone on the ground floor of their premises when the Appellant approached her. She stated that he emerged from the bathroom and began caressing her shoulders. She brushed him off and smeared soap on his face. The Appellant washed his face with the water from the tap. 25.She further told the court that she then went into the toilet and the Appellant followed her tiptoeing. He started pulling down her trousers and panty. She struggled to free herself and managed to pull her panty up. She stated that during the ordeal the Appellant told her that he loved her to which she retorted: “wacha ujinga”, but the Appellant kept on caressing and attempting to undress her. 26.She further testified that a Bar Attendant heard the commotion and came to her rescue, calling the Appellant out of the toilet and subsequently informing the complainant's mother. PW1 stated that she later reported the matter at Makuyu Police Station and was referred to Makuyu Health Centre for a medical examination where a P3 form was filled. She identified the Appellant as “Baba Joel alias Kim” 27.On cross-examination, she admitted that she did not scream during the incident, and that the Appellant had locked the toilet from the inside. She reiterated that a Bar attendant informed the complainant’s mother about the incident She denied that they were ever friends, or that the Appellant had tried to befriend her before. She admitted that the Appellant had never made any inappropriate advances towards her, in the past. 28.PW2 was the complainant’s mother. She testified that at the material time, she resided at [Particulars Withheld] and worked as a casual labourer. It was her evidence that on the morning of 30thDecember 2020, she was in her second-floor house preparing lunch while her daughter, (PW1), was on the ground floor washing clothes. She further testified that a lady who stayed at the same premises informed her that the Appellant had been seen inside the toilet with her daughter; that upon rushing from the second floor to the ground floor, she indeed found the Appellant inside the toilet with her daughter. When she confronted him, the Appellant told her to report the matter to the police. She further stated that although her daughter initially claimed that nothing had happened when first interrogated, they later proceeded to Makuyu Police Station to record statements and were referred to Makuyu Health Centre. She produced a birth certificate (marked as PMFI 1) confirming that her daughter was 13 years old at the time. It was her evidence that her daughter eventually informed her that the Appellant had attempted to pull down her short trousers with the intention of defiling her. 29.On cross-examination, she insisted that she found her daughter the Appellant inside the toilet and added that there was also an old man who saw them. She denied the Appellant's suggestion that they were friends; that she had had drinks with the Appellant or that she was using her daughter to settle personal scores. 30.She further told the court that the Appellant had rushed to the police station ahead of them to report that his name was being tarnished. she told the court that the independent witnesses who saw the incident had declined to record a statement with the police. 31.PW3 was Beatrice Wanjiru Giati, a clinical officer attached to Makuyu Health Centre. She testified that on 31st December 2020, the complainant, was brought to the facility under police escort with a complaint of attempted defilement by the Appellant. she conducted a medical examination on the minor and found no physical injuries on her head, neck, thorax, abdomen, or limbs. Regarding the genitalia, PW3 noted that while the hymen was penetrated, the perforation was not fresh. She further observed a whitish discharge, although there were no injuries to the labia majora, labia minora, or the vagina. High Vaginal Swabs (HVS) test did not reveal the presence of spermatozoa. Urinalysis revealed pus cells and motile bacteria, leading to a diagnosis of a urinary tract infection (UTI). 32.On cross-examination, she clarified that the infection could have been caused by contamination during defecation or the use of a toilet. 33.PW4 was the investigating officer attached to Makuyu Police Station. She testified that on 30th December 2020, while on duty, the complainant and her mother (PW2) came to the station to report an incident of attempted defilement. she recorded statements, took custody of the minor, and subsequently arrested the Appellant. 34.DW1, the Appellant herein, told the court that he is a businessman residing in Kenol. It was his evidence that the charges levelled against him were fabricated following a disagreement with the complainant’s mother (PW2) about money. 35.He further stated that he had voluntarily presented himself to the police station, only to be arrested and charged with the offence. Analysis and Determination 36.This being a first appeal, this Court is enjoined to subject the entire evidence tendered before the trial court to a fresh and exhaustive evaluation and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. In Okeno v Republic [1972] EA 32, the predecessor of the Court of Appeal stated that the duty of a first appellate court is to reconsider the evidence, evaluate it and draw its own conclusions while making allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses 37.I have considered the Trial record, the grounds of appeal and the submissions by both parties. The issues that arise for determination are as follows:a)Whether the prosecution proved the offence of attempted defilement beyond reasonable doubt;b)Whether the prosecution evidence was riddled with material contradictions and inconsistencies;c)Whether the failure to call the alleged independent witnesses was fatal to the prosecution's case;d)Whether the sentence imposed was lawful and proper. Whether the prosecution proved the offence of attempted defilement beyond reasonable doubt. 38.The Appellant was convicted under Section 9(1) as read together with Section 9(2) of the Sexual Offences Act. For the prosecution to sustain a conviction under that provision, it had to establish beyond reasonable doubt that the complainant was a child, and that the Appellant intentionally committed overt acts which were immediately connected with the intended act of penetration, but which fell short of actual penetration. 39.There is no contest regarding the age of the complainant. PW2 produced the complainant's Birth Certificate which established that she was aged thirteen (13) years at the time of the alleged offence. The Court of Appeal in Kaingu Elias Kasomo v Republic [2014] eKLR held that age is an essential ingredient of sexual offences involving children and may be proved by documentary evidence, medical evidence or credible oral testimony. In the present case, the Birth Certificate sufficiently proved that ingredient. 40.The contest revolves around whether the prosecution proved an attempt to penetrate the complainant. The complainant (PW1) testified that while washing clothes, the Appellant approached her, later followed her into the toilet, pulled down her short and panty down and told her that he loved her. She resisted by pulling up her underwear and telling him “ wacha uchinga” but he kept on caressing her. Another tenant responded to the commotion and intervened. Her evidence was that no penetration occurred. 41.PW2 testified that upon being informed by another tenant, she rushed downstairs and found the Appellant together with the complainant inside the toilet. PW4, however, testified that after the complainant had emerged from the toilet, the Appellant later emerged from another toilet and denied having been with the complainant. 42.The medical evidence by PW3 revealed no injuries to the complainant's genitalia, no bruises, no lacerations, no fresh hymenal tears and no spermatozoa. The Clinical Officer stated that although the hymen was perforated, the perforation was old and not recent. 43.The Court appreciates that medical evidence is not an indispensable requirement in every sexual offence and that by virtue of the proviso to Section 124 of the Evidence Act, a court may convict on the sole evidence of a child victim if it believes the witness and records reasons for that belief. Nevertheless, where the charge is one of attempted defilement, there must still be evidence demonstrating acts that unequivocally point towards the intended penetration. 44.In Abdi Ali Bare v Republic [2015] KECA 794 (KLR) the Court of Appeal explained that criminal attempt consists of acts which go beyond mere preparation and are immediately connected with the commission of the intended offence. The acts must unequivocally demonstrate an intention to complete the offence unless interrupted. Similarly, in Moses Kabue Karuoya v Republic [2016] KEHC 2729 (KLR) the high court observed that an attempt is established where the accused has embarked upon the execution of the offence through overt acts which would ordinarily result in the commission of the offence but for interruption or some intervening circumstance. 45.From the evidence on record, the prosecution established that the Appellant followed the complainant into the toilet and pulled down her trouser and panty. The complainant further testified that the Appellant locked the toilet door from inside. He caressed her even upon her telling him to stop (wacha ujinga”) The Court is alive to the distinction between preparation and execution. Whereas the conduct of the Appellant following the complainant to the toilet, may be considered a preparation, the act of pulling down the complainant’s panty demonstrated an attempt at defilement. The Appellant did not just pull down the complainant’s trouser but the panty too. As a matter of common knowledge, the panty, or briefs for Men, is the protective cloth around the genital Area. The instructive question is why did the Appellant want to remove the panty, if not to defile the complainant? What stopped him from completing the act is the complainant’s Act of pulling up her panty. 46.I have considered the decision of the high court in David Aketch Ochieng v R, (supra) cited by the Appellant. while the cited decision may be persuasive, it is not binding on this court. I take the view, based on many past decisions by various superior courts, on the element of penetration, (as defined under section 2 of the sexual offences Act) , that lacerations and bruises are around the vaginal Area is taken to constitute penetration or at least partial penetration and not attempted defilement . 47.Upon evaluation of the evidence, this Court is persuaded that the prosecution established that ingredient beyond reasonable doubt. Whether the prosecution’s case was marred by contradictions and inconsistencies 48.The Appellant submitted that the prosecution case was riddled with contradictions. The Court has examined the evidence. PW1 testified that the Appellant entered the toilet where she had gone and was interrupted by a bar attendant. PW2 stated that she personally found both the Appellant and the complainant inside the toilet. These are discrepancies and not contradiction. There was no suggestion that by the time the complainant’s mother got down, the complainant and the Appellant had gotten out from the toilet. 49.Granted, the court has taken note of the contradictory evidence given by the investigation’s officer. However, the investigations officer was not an eye- witness to the incident. In as far as the events that were taking place at or immediately after the incident went, her evidence was hearsay, and hence inadmissible. Am not persuaded that the minor discrepancies caused any major dent to the prosecution’s case. Whether vital witnesses were left out 50.PW1 testified that a bar attendant rescued her after hearing the commotion. PW2 equally referred to an elderly man. Who witnessed the incident. 51.Section 143 of the Evidence Act, provides that no particular number of witnesses is required to prove a fact. The prosecution is only required to call such number of witnesses as are required to prove their case beyond reasonable doubt. Am satisfied that the evidence of PW2 and PW1 were sufficient to prove the attempt to defile PW1, notwithstanding the fact that the named Bar attendant and “ the old man” did not testify. The Appellant’s defence 52.The Court has also considered the Appellant's defence;- that the complaint arose from an existing disagreement with PW2. The disagreement was allegedly over money. However when he cross- examined PW2 , there was no suggestion of money owed or borrowed . The Appellant instead referred to a friendship. A portion of PW2’s testimony in response to the Appellant’s questions went: “it is not true that we are friends. I have never had drinks with you. It is not true that am using my daughter to settle personal scores” 53.The change of apparent motive at the time he was defending himself cast doubts on the credibility as a witness. I also find the rush to the station, ahead of the complainant purportedly to complain about the tarnishing of his name to have been a calculated attempt to deflect anticipated investigation to his own conduct. 54.In the end, am satisfied , that the prosecution proved the subject offence beyond reasonable doubt. Sentence 55.There was no Appeal against the sentence. However it suffices to state that the sentence of 10 years was within the law. 56.Final orders:a)The conviction of the Appellant is hereby upheld and consequently, the Appeal is dismissed. DATED, SIGNED AND DELIVERED AT ISIOLO,VIA MICROSOFT TEAMS , THIS 23RD JULY 2026.S. CHIRCHIRJUDGEIn the presence of :Roba Katelo- Court AssistantMr. Majale for the RespondentThe Appellant- In person.