Walela v Republic (Criminal Appeal E045 of 2025) [2026] KEHC 4644 (KLR) (10 April 2026) (Judgment)

Walela v Republic (Criminal Appeal E045 of 2025) [2026] KEHC 4644 (KLR) (10 April 2026) (Judgment) Neutral citation: [2026] KEHC 4644 (KLR) Republic of Kenya In the High Court at Busia Criminal Appeal E045 of 2025 WM Musyoka, J April 10, 2026 Between Judi Wetonye Walela Appellant and Republic Respondent (Appeal from conviction and sentence, by Hon. S. Makila, Senior Principal Magistrate, SPM, in Busia MCSOC No. E093 of 2024, of 25th June 2025) Judgment 1.The appellant was convicted of attempted defilement, contrary to section 9(1)(2) of the Sexual Offences Act, Cap 63A, Laws of Kenya, of a minor of 3 years, on 3rd November 2024, at Particulars Withheld], of Samia Sub-County, Busia County. It was alleged that he attempted to cause his penis to penetrate the vagina of that child, BA. I shall, hereafter, invariably refer to BA as the complainant and PW1. 2.The appellant denied the charge. A trial was conducted. 4 witnesses were presented by the prosecution. 3.PW1, BA, was the complainant. She testified through an intermediary, being her mother, JA, on account of the disability of PW1, being of extreme tender age. JA testified in her own right, as PW2. PW1 is reflected, in the trial record, as having testified that the appellant put his hand on her private parts, and that he put his dudu on her private parts. She pointed at a location, on a sketch of a human being, on the crotch, to indicate the situation of the dudu on a human body. 4.PW2, JA, was the mother of PW1. She stated that she was with PW1 at home, on the material day, while the appellant was herding cattle nearby. PW1 ran to the appellant. After a while, she heard PW1 screaming, and saw her running from a bush, with sperms on her thighs, and her panties down to her knees. PW2 saw the appellant coming out of a thicket, and asked him what was wrong. He did not respond. PW2 screamed. PW1 told her that the appellant had put his dudu on her dudu mucus. PW2 rushed PW1 to a dispensary and to the police. The appellant was thereafter arrested. She said that the child was born on 30th November 2021, and produced her certificate of birth. 5.PW3, Eugene Juma, was a medical doctor. He attended to the complainant, on 5th November 2024, who came escorted by PW1. There was a history of having been sexually molested on 3rd November 2024. The examination revealed that the hymen was intact. All the tests done came out negative. A diagnosis of attempted defilement was made, based on the history given by the mother. 6.PW4, No. 10XXXX9 Police Constable Mary Kipkemboi, was the investigating officer. She testified that the police had received a report, on 3rd November 2024, that a boy had been found defiling a baby. She went to the scene, and found that the appellant had been locked in a room, and she re-arrested him. She detailed, to the trial court, the steps that were taken in the course of the investigations. 7.It was ruled, on 14th May 2025, that a prima facie case had been made out, and the appellant was put on his defence. He gave a sworn statement, on 23rd April 2025. He denied the charge. he said that the case was contrived, for PW2 had made sexual overtures to him, which he rebuffed. 8.The appellant was convicted, on 25th June 2025, of the attempted defilement charged, and was sentenced to serve 20 years imprisonment, on the same date. 9.The appellant was aggrieved, hence the appeal. The grounds revolve around the investigations being shoddy; fair trial rights not being observed; the medical evidence not linking the appellant to the crime; the case being riddled by mild contradictions; and the alibi defence not being considered. 10.The appellant has canvassed the appeal by written submissions, that he has lodged in the record. The respondent did not file submissions. I have read through the written submissions, by the appellant, and noted the arguments made. 11.I will start with discussing the elements of the offence. An attempted offence is an inchoate or incomplete offence. It is about the accused setting out to commit an offence, but falling short of committing it in full, by stopping before the complete offence is committed. The failure or omission to complete commission of the intended offence could be on account of being interrupted, or losing the nerve to complete the full commission, or upon facing fierce resistance from the complainant. For there to be a criminally actionable attempt, the accused must have commenced or initiated the process towards commission of the offence. There is more to attempt than mere preparation, for the steps taken, towards commission of the intended offence, must be close to execution or proximate to actual commission. 12.The principal elements for attempted defilement are the same as those for defilement, save for the penetration. It must be established that the complainant was a minor at the material time, the assailant must be positively identified, and the steps taken towards fulfilment or completion of the intended defilement must be proved. 13.I will start with the minor complainant. The charge identified her as BA, whose age was put at 3 years, at the material time of the commission of the offence, on 3rd November 2024. BA testified, as PW1, through an intermediary, who was her own mother, who also testified as PW2. PW2 said that PW1 was 3, having been born on 30th May 2010. She produced her certificate of birth, serial number BO 37XXXX20. According to that document, PW1 was born on 30th November 2021. The offence was allegedly committed on 3rd November 2024. On 3rd November 2024, PW1 was exactly 3 years and 27 days old. She was, therefore, still 3 years old, and a minor, and the offence of attempted defilement could be committed against her. 14.With regard to the attempted penetration of her gentalia, by that of the perpetrator, the medical forensics are crucial. The medical forensics did not bring out any abnormality, and all the tests were negative. Medically, therefore, there was no evidence of an attempt to defile her. 15.As the medical evidence was totally negative, the only other available evidence would be that of the victim, PW1, and her mother, PW2. PW1 was only 3 years old. Her age was so tender that not much could be gotten from her, by way of any useful evidence. The material, that was allegedly collected from her, by the trial court, ought to have been taken with a lot of caution and circumspection. 16.The mother, PW2, did not witness the appellant do anything to PW1. Her testimony was a little dramatic. She talked of sperms that were on the thighs of PW1, who walked with legs apart. She also said that she saw sperms pouring from the thighs of the child. In her own words, she said, “The sperms were on her thighs and she walked with legs apart. The panty was on her knees. I saw sperm pouring from her thighs.” 17.The child was taken to hospital for treatment and examination, on 5th November 2024, which was 2 days after the alleged attempt to defile her, on 3rd November 2024. Why was she not rushed to hospital sooner, given that there had been abundant deoxyribonucleic acid, DNA, material, if the testimony of her mother, PW2, was to be believed, which would have incriminated the appellant. The appellant was arrested on 3rd November 2024. That should also have been the opportune time, to have PW1 subjected to medical forensics, before that material was lost. 18.Even then, as the semen was literary pouring, in the words of PW2, there must have been a lot of it, and some of it must have landed on the panties that PW1 was wearing, when PW2 allegedly saw her walking away from the appellant. Why were her panties not availed for medical forensics. PW2 described PW1 as walking with legs apart, suggesting that she had been injured, or harmed in some way. Yet, when PW4 examined her, nothing abnormal was detected. 19.The evidence of the alleged attempted defilement was shaky. The dramatics, from PW2, were not supported or corroborated by the medical evidence. The corroboration was necessary. PW1 was too tender, to provide any useful testimony, on what had befallen her. The embellished account by PW2 was of little help, for it was a rendition, of a narrative from PW1, whose age was too tender to be useful, in terms of getting a coherent account of what happened. The appellant should have been given the benefit of the doubt, with the trial court finding that there was insufficient proof of the alleged attempted defilement. 20.The last element of defilement is the identity of the perpetrator. The charge alleged that that perpetrator was the appellant herein. That it was him who attempted to penetrate the vagina of the minor BA, with his penis. In view of what I have discussed above, there was insufficient proof of an attempted defilement, and, therefore, the exercise of identification of a perpetrator would be futile. 21.I do not think that I should expend time discussing the other grounds raised by the appellant, in his appeal. The material placed on record did not support the attempted defilement. The evidence did not reach the threshold of proof beyond reasonable doubt. The appellant should not even have been put on his defence. He should have been acquitted. 22.Overall, I have found merit, in the appeal herein. I, accordingly, allow it. Consequently, I quash the conviction of the appellant, and set aside the sentence imposed on him. He shall be set free, from prison custody, unless he is otherwise lawfully held on a separate warrant. Orders accordingly. DELIVERED, VIA MICROSOFT TEAMS, DATED AND SIGNED AT MILIMANI, NAIROBI, ON THIS 10TH DAY OF APRIL 2026.W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Judi Wetonye Walela, the appellant, in person.AdvocatesMr. Onanda, instructed by the Director of Public Prosecutions, for the respondent.