https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11366

Malika v Republic (Criminal Appeal E043 of 2025) [2026] KEHC 11366 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 11366 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E043 of 2025 JK Biomdo, J July 15, 2026 Between Peter Mwongela Malika Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. F.Makoyo (PM) in Kilungu PMC (SO) Case No. E034 of 2023) Judgment 1.The appellant herein, Peter Mwongela Malika, was convicted and sentenced to 30 years imprisonment by the Principal Magistrates’ Court at Kilungu for 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. 2.The particulars of the offence are that on 23 December 2020 at [Particulars Withheld] village Nathiri Sub-location in Mukaa Sub-County within Makueni County intentionally and unlawfully attempted to cause his penis to penetrate into the vagina of AMM, a child aged 11 months. He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act with particulars stating that on 23 December 2020 at [Particulars Withheld] village Nathiri Sub-location in Mukaa Sub-County within Makueni County intentionally and unlawfully touched the vagina of AMM, a child aged 11 months. 3.He denied the allegations prompting the trial where the prosecution called four (4) witnesses to prove its case. PW1 GNM the mother of AMM the victim testified that on 23 December 2020 the appellant who had been employed to work in the farm, went to work in the farm with her husband G who was also accompanied by Gift her daughter. She remained at home with AMM. She left the victim outside the house and the appellant was outside the kitchen door. Suddenly she heard the victim crying in pain, rushed outside towards the tank behind the house where the screams were coming from and found the appellant seated at the veranda near the tank, while holding the victim in her lap. His trouser was lowered and he was holding the victim’s mouth as she cried. She stated that the victim had a dress but did not have a panty. He slapped the appellant who immediately got up, pulled his trouser and ran away. She called her husband, mother-in-law and village elder who checked the victim’s private parts where they found a lot of petroleum jelly and what she believed to be sperms, though she was not bleeding. They took her to hospital and reported the matter to the police. She produced a child health card that showed that the victim was born on 6 January 2020. 4.PW2 Gideon Makau testified that he was the headman of [Particulars Withheld] village on the material time. On 23 December 2023 at about 4.30pm he received a call from PW1 who informed him that she had found the appellant had defiled the victim. He saw something like petroleum jelly on the victim and directed them to the hospital and police. 5.PW4 Jackson Nzivo a clinical officer at Kathonzweni Health Centre examined the victim on 23 December 2020 and established that her hymen was intact but her vagina was swollen and red in colour. He concluded that there was evidence of attempted defilement and produced the P3 form (exhibit 3), Post Rape Care form (exhibit 4) and treatment notes (exhibit 2). 6.PW3 PC Viola Jeremo the investigating officer stationed at Sultan Hamud police station testified that on 28 December 2020, the appellant was transferred from Magala Police post to the station. He conducted investigations which revealed that the appellant had attempted to defile the victim. He produced the victim’s birth certificate (exhibit 5) which showed that she was born on 6 January 2020. 7.At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence. 8.In defence, the appellant denied committing the offence, stating that he was casual laborer and was working for PW1 in her farm. He testified that on the material day, he was working in PW1’s farm until 1pm when he left for the market and did not return to the said house again. 9.At the close of the trial, the appellant was found guilty of attempted defilement and sentenced to 30 years imprisonment. Aggrieved, he filed the present appeal where he raised the following grounds of appeal:i.The trial court erred in law and fact by convicting the appellant on evidence that did not meet the minimum threshold of proof beyond reasonable doubt as per Section 107 of the Evidence Act.ii.The trial court erred in law and fact by relying on hearsay and fabricated stories from PW1.iii.The trial court erred in law and fact by failing consider that the prosecutions case was full of contradictions and inconsistencies.iv.The trial court erred in law and fact by not granting the appellant herein pro bone counsel in violation of Article 50 (2) (h) of the Constitution.v.The trial court erred in law and fact by finding the burden of proof was discharged to the required standards.vi.The trial court erred in law and fact by failing to consider the appellant’s defence of alibi thereby breaching Section 169 (1) of the Criminal Procedure Code.vii.The trial court erred in law and fact by not drawing adverse inference on the prosecution’s case for not calling crucial witnesses.viii.The trial court erred in law and fact by conducting proceedings in camera in violation of Article 50 (1) of the Constitution.ix.The trial court erred in law and fact by meting out a sentence that was harsh and excessive without considering his mitigation, age and the sentencing policy. 10.The appeal was canvassed by written submissions. Both parties filed their written submissions which they relied on at the hearing of the appeal. 11.On allegation of violation of article 50 (2) (h) of the Constitution, the appellant submitted that whereas the trial court informed him of the right to legal representation, he was nevertheless not provided with one at state expense. He submitted that he was unable to pay for legal presentation having spent five years in pre - trial detention and that he was not able to effectively participate in the proceedings before the trial court which caused him substantial injustice. 12.On the issue that the burden of proof was not discharged, the appellant submitted that the conviction primarily rested on the evidence of PW1, a single witness without corroboration. He contended that PW2 was not a witness to the event while PW4 did not find any petroleum jelly on the victim thereby contradicting PW1’s evidence. He contended that the swelling observed by PW4 could have resulted from an infection and not necessarily attempted penetration. 13.On the allegation of breach of fair trial, he submitted that the proceedings were conducted in camera away from the public eye in contravention of Article 50 (1) of the Constitution. He averred that PW1 was not the actual victim and there was no justification for exclusion the public. He further argued that he defence was not considered which breached the right to fair trial. 14.On the issue of excessive sentence, he submitted that the trial court condemned the appellant a 24-year-old to a cumulative term of 30 years considering that the minimum was 10 years. He termed the sentence harsh and excessive and urged the court to review it. 15.The respondent opposed the appeal and submitted that the prosecution had proved all ingredients of the offence; being, proof of age of the complainant, proof of identification of the assailant and proof that the overt act (attempted penetration) was committed. 16.It was contended that PW1 had proved the age of the victim through testimony as well as the child health card. It was further argued that attempted penetration was proved by PW1 and corroborated by PW2 and PW3 as well as medical evidence. On identification, it was submitted that the offence occurred during the day and the appellant was caught red handed in the act. 17.On allegation of violation of Article 50 (2) (h) and (i) of the Constitution, it was contended that the grounds were baseless, the appellant was informed of his right to legal representation, he was able to follow proceedings and cross-examined witnesses and there was no indication that he suffered substantial injustice. 18.On the issue that the sentence was harsh and excessive, it was submitted that the minimum sentence was 10 years imprisonment and that the court exercised its discretion lawfully in awarding the 30 years considering that the victim was 11 years old. The court was urged to dismiss the appeal and uphold the conviction and sentence. Analysis and determination 19.This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32. 20.The court of appeal, in Kiilu & Another v Republic [2005]1 KLR 174, stated thus;“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings 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.” 21.Having considered the grounds of appeal, the evidence adduced in the lower court, and the rival submissions of parties, I find the main issues for determination to be;i.Whether the appellant’s right to a fair trial under article 50 (1) and (2)(h) of the Constitution was violated.ii.Whether the prosecution proved its case beyond reasonable doubt.iii.Whether the appellant’s defense was considered.iv.Whether the sentence was manifestly harsh and excessive. Whether the appellant’s constitutional rights to fair trial under Article 50 (1) and (2) (h) of the Constitution were violated 22.The appellant submitted that whereas the trial court informed him of the right to legal representation, he was nevertheless not provided with one at state expense. He submitted that he was unable to pay for legal presentation having spent five years in pre - trial detention and that he was not able to effectively participate in the proceedings before the trial court which caused him substantial injustice in violation of article 50 (2) (h) of the Constitution. 23.Concerning alleged breach of fair trial, the appellant submitted that the proceedings were conducted in camera away from the public eye in contravention of Article 50 (1) of the Constitution. He averred that PW1 was not the actual victim and there was no justification for excluding the public. 24.Article 50 of the Constitution guarantees fair hearing and fair trial a violation of which will lead to the various remedies that include quashing of convictions, invalidation of proceedings, or exclusion tainted evidence, acquittal where the breach is severe enough to compromise the entire trial process, or in limited cases, an order for a retrial. See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR). 25.Article 50(2)(h) the Constitution provides that: -“50.Fair hearing(2)Every accused person has the right to a fair trial, which includes the right—…………………(h)“….to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” 26.The appellant was informed of his right to legal representation, a fact he has admitted in his defence. His claim relates to failure to be assigned an advocate at state expense which he avers has caused him substantial injustice. 27.The right to state funded legal representation guaranteed under Article 50(2)(h) of the Constitution and operationalized by the Legal Aid Act 2016, would arise where substantial injustice would otherwise result. To the courts mind, the right is not automatic but dependent on whether substantial injustice would otherwise if an accused is not represented. The issue for determination therefore is, what is the meaning of substantial injustice? 28.The Supreme Court, in Republic vs Chengo & 2 others (2017) KESC 15 (KLR) held that in determining whether substantial injustice would be suffered in criminal matters, the court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include the seriousness of the offence, severity of the sentence, the ability of the accused person to pay his own legal representation, whether the accused is a minor, the literacy of the accused and complexity of the charge against the accused. The list is not exhaustive and each case is to be determined based on its own peculiar circumstances. 29.In this case, in determining the question of whether the appellant is likely to have suffered substantial injustice due to lack of state funded representation, the court has considered the complexity of the case and whether the appellant was able to follow the proceeding before the trial court and defend himself. 30.Whereas the sentence is severe in view of the nature of the offence, the case was not complex at all. It was mainly based on issues of fact which were directly within the appellant’s knowledge. The witnesses testified on questions of facts and the documents were voluminous or not complex at all. A perusal of the record of the trial court showed that the appellant actively participated in the trial and cross- examined the witnesses where he deemed fit and defended himself when placed on his defence. It was therefore not evident or apparent that he suffered any substantial injustice that would merit interference by this court. 31.On the second limb, the appellant alleged that the holding of the trial in camara violated his rights to fair trial. However, no material or evidence was placed before the court to substantiate how the appellant was prejudiced by the said trial. Nevertheless, Article 50 (8) of the Constitution allows exclusion of the public from any proceedings in order to, inter alia, protect witnesses or vulnerable persons. The victim was a vulnerable person on account of her tender age and needed protection. The court finds that the exclusion of the public was lawful and necessary under these circumstances and did not in any way cause any prejudice or injustice upon the appellant. The court finds no evidence to support the allegations of violation of constitutional rights and this ground fails. Whether the prosecution proved its case beyond reasonable doubt 32.The appellant was charged with the offence of attempted defilement contrary to section 9 (1) & (2) of the Sexual Offences Act which provides as follows;“9(1)A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.(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.” 33.The specific elements of the offence of attempted defilement that the prosecution must prove beyond doubt are;i.That the victim was a child within the meaning of the Children’s Act; (under the age of 18 years).ii.That the appellant was positively identified as the assailant, andiii.The overt acts or steps taken by the appellant towards the commission of the offence of defilement that was not completed Proof of age of the victim 34.The age of a victim may be proved in various ways. In Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR, the court stated:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 35.The PW1 the mother of the victim testified that the victim was born on 6 January 2020 meaning that she was 11 months at the time of commission of the offence. This was corroborated by her birth certificate produced by PW3 as exhibit 5. The appellant did not challenge the authenticity of the birth certificate and the court finds no reason to doubt it. The court finds that age of the complainant was proved beyond any reasonable doubt. Positive identification of the appellant as the assailant 36.PW1 testified that he caught the appellant attempting to commit the offence during the day. The evidence of identification was, therefore, by a single witness. Such evidence must be treated carefully and cautiously. 37.In Republic vs Turnbull & Others (1973) 3 ALL ER 549 the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court said:....“The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made….” 38.The evidence by the single witness ordinarily calls for corroboration as provided under Section 124 of the Evidence Act save for the evidence of a victim in sexual offences as long the court believes the victim. 39.In the case of Anjononi & Others vs. Republic [1980] KLR 59, the court of appeal stated as follows: -“...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.” 40.PW1 had employed the appellant as a casual laborer to work in her farm. The appellant confirmed this in evidence in defence and stated that he had worked in PW1’s farm for two weeks. They knew each other well hence no case of mistaken identity.PW1 described in detail how on the material day at around lunch hour, she saw the appellant standing next to the kitchen door while the victim was playing outside before he caught him red handed with the victim. The appellant did not challenge these facts and the court is satisfied that there was positive identification through recognition. The overt acts or steps taken by the appellant towards the commission of the offence of defilement that was not completed 41.An attempt to commit an offence is defined under Section 388 of the Penal Code as follows:“(1)When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.(2)It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfillment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.(3)It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence. 42.Attempted defilement is therefore a complete offence with mens rea and actus reus. The intention to commit the offence is the mens rea, and the overt acts towards execution of the offence is the actus reus. See Michael Lokomar vs Republic (2016) eKLR where the court observed as follows:“In proof of an attempted commission of an offence the prosecution must prove mens rea which is the intention and actus reus which is [the act which constitutes] the overt act which is geared to the execution of the intention. The actus reus must be more than the mere preparation to commit the act as there is a difference between preparations to commit an offence.” 43.A key aspect of attempted defilement is the commencement of execution of the intended crime. This entails steps taken towards the accomplishment of the desired result or intended to consummation of the intended offence. In Rex vs Sharpe [1903] TS 868, the Court describes these as the beginning of the final series of acts which complete the crime. But, the beginning of the acts of the final series depends on the circumstances of each case. It also involves a value Judgment by the court. 44.The appellant submitted that the conviction primarily rested on the evidence of PW1, a single witness without corroboration. He contended that PW2 was not a witness to the event while PW4 did not find any petroleum jelly on the victim thereby contradicting PW1’s evidence. He argued that the swelling observed by PW4 could have resulted from an infection and not necessarily attempted penetration. The respondent affirmed that attempted penetration was proved by PW1 and corroborated by PW2 and PW3 as well as medical evidence 45.PW1’s evidence was that on the material day, she heard the victim crying in pain and when she followed the cry, she found the appellant seated at the veranda near the tank, while holding the victim in her lap. His trouser was lowered and he was holding the victim’s mouth as she cried. She stated that the victim had a dress but did not have a panty. He slapped the appellant who immediately got up, pulled his trouser and ran away. She checked the victim and found that she had petroleum jelly on her private parts and what she thought was sperms. She called PW2, among other people. 46.PW2 the village elder testified that on 23 December 2023 at about 4.30pm, he received a call from PW1 who informed him that she had found the appellant had defiled the victim. He saw something like petroleum jelly on the victim and directed them to the hospital and police. 47.PW4 Jackson Nzivo a clinical officer at Kathonzweni Health Centre examined the victim on 23 December 2020 and established that her hymen was intact but her vagina was swollen and red in colour. He concluded that there was evidence of attempted defilement and produced the P3 form (exhibit 3), Post Rape Care form (exhibit 4) and treatment notes (exhibit 2) as evidence thereof. 48.The appellant is his defence admitted that on the material day, he had gone to work at PW1’s farm thereby corroborating PW1’s evidence which placed him at the crime scene. PW1 evidence shows that the appellant removed his trouser, placed the baby on his lap and prepared to defile her. This is evidence that demonstrates that the appellant put his intention to defile the victim into execution. These are clear overt acts towards execution of defilement that went beyond mere preparation to commit an offence. 49.The appellant submitted that his defence was not considered which breached the right to fair trial. Specifically, he raised the defence of alibi contending that on the material day, he was at the farm until 1pm when he went to the market and did not return. 50.The court of appeal in Erick Otieno Meda vs Republic (2019) eKLR had this to say on the defence of alibi raised by the accused persons;i.An alibi needs to be corroborated by the other witnesses and not just a mere regurgitation of the events from the accused point of view.ii.An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination in trial.iii.The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she has presented in court.iv.The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond reasonable doubt so as to allow the alibi to fail. 51.The appellant did not raise the defence of alibi during prosecution hearing to allow it to be tested, particularly when PW1 testified or provide any witnesses or other evidence to corroborate his allegations. The court has weighed his evidence against the prosecutions and finds that the prosecution provided cogent, consistent and corroborative evidence that proved the ingredients of the offence. This ground fails. Whether the sentence was manifestly harsh and excessive 52.The appellant submitted that the trial court condemned him a 24-year-old to a cumulative term of 30 years considering that the minimum was 10 years. He termed the sentence harsh and excessive and urged the court to review it. The respondent took the opposite view submitting that the minimum sentence was 10 years imprisonment and that the court exercised its discretion lawfully in awarding the 30 years considering that the victim was 11 years old. 53.Sentencing is an exercise of discretion by the trial court and the High Court would not interfere with the sentence imposed unless it finds that it was illegal, unlawful or founded on a wrong principle of law. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” 54.Further, mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR. 55.The law sets a minimum mandatory sentence of 10 years for an offence of attempted defilement contrary to Section 9 (2) of the Sexual Offences Act. 56.In order to determine this matter, the court deems it necessary to draw parallels with the Penal Code on punishments for attempts to commit offences. Section 389 of the Penal Code provides thus as regards punishment for attempts to commit offences;“Any person who attempts to commit a felony or a misdemeanour is guilty of an offence and is liable, if no other punishment is provided, to one-half of such punishment as may be provided for the offence attempted, but so that if that offence is one punishable by death or life imprisonment he shall not be liable to imprisonment for a term exceeding seven years.” 57.To the courts mind, an attempt to commit an offence remains that and the sentence awarded must be proportionate. Section 389 provides guidance on punishment and emphasizes the need to distinguish punishment for actual commission of the offences and attempts. In this case, the court did not find any aggravating circumstances that would warrant a sentence above the mandatory minimum of 10 years set by law. 58.Pursuant to Section 354 (3) (a) (ii) of the Criminal Procedure Code, the court deems it fit to interfere with the trial court’s sentence. It is further noted that the appellant has been in custody since his arrest on 29 December 2020 and pursuant to Section 333 (2) of the Criminal Procedure Code, the period spent in custody pending trial shall be taken into account. Final Orders 59.In view of the above, the court makes the following orders:i.The appeal against conviction lacks merit and is accordingly dismissed.ii.The sentence of 30 years imprisonment is set aside and substituted with a sentence of 10 years imprisonment.iii.The sentence shall run from 29 December 2020. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE