https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11385

Mramba alias Rogo v Republic (Criminal Appeal E050 of 2025) [2026] KEHC 11385 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11385 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E050 of 2025 JK Biomdo, J July 23, 2026 Between Julius Mramba alias Rogo Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. D. Wasike (PM) in Kilifi CMC (SO) Case No. E024 of 2024) Judgment 1.The appellant herein,Julius Mramba alias Rogo, was convicted and sentenced to 10 years imprisonment by the chief Magistrates’ Court at Kilifi 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 6 February 2024 at around 1930 hrs in [Particulars Withheld] village in Kilifi North sub county within Kilifi county intentionally attempted to penetrate the vagina of BW a child aged 7 years. 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 6 February 2024 at around 1930hrs in [Particulars Withheld] village in Kilifi North sub county within Kilifi county intentionally buttocks, breasts and vagina of BW a child aged 7 years with his penis. 3.He denied the allegations prompting the trial where the prosecution called five (5) witnesses to prove its case. PW1 the complainant aged 7 years testified that on on 6 February 2024 at about 7pm, she was sent by her mother, PW2 to accompanied the appellant to the bushes to collect coconuts. On reaching the bush the appellant removed her clothes, panty and inserted his penis into her vagina, cautioned her from reporting and they went back together. On reaching home, she reported to her mother who then slapped the appellant which caused a commotion that attracted a large crowd. Later in the evening,she together with PW2 reported the incident to the police station and were referred to Matsangoni hospital where they were not examined but asked to go back the following day. The next day, she accompanied by PW2 went to the hospital where she was examined by PW 4. 4.PW2’s SVA evidence the complainant’s mother testified that on 6 February 2024 at about 6pm, the appellant went to her premises where she was cooking beans, inquired if she needed coconuts to cook with the beans. He asked her to give the complainant a bag and allow the complainant accompany him to collect the coconut which she agreed. The complainant took long to return and at about 8pm she asked her other daughter to go check for her at the appellant's house but she didn’t find them. Moments later, the complainant went back looking sad and told her the appellant had defiled her. She got furious and slapped the appellant which attracted a crowd that turned on her. She accompanied by the complainant and PW3 reported the matter to the police where they found the appellant and his family already there and were referred to Matsangoni hospital where the complainant was examined the following day. 5.PW Zuleka Osman, a friend of PW3, testified that on the material day at about 7pm, she heard a commotion and upon inquiry, she was informed that PW2 had assaulted the appellant after learning that he had defiled the complainant. She spoke with the complainant who repeated the incident to her. She advised and assisted PW2 and the complainant get to the police station where they found the appellant and his family already there. 6.PW4 a medical officer at Matsangoni health center examined the complainant and established that the hymen was intact but there were bruises on the labia minora extending from 7 o'clock to 10 o’clock, reddening bruises and smelling greyish discharge from the same area leading to a conclusion that there was an attempted penetration. He produced the P3 form, Post Rape Care Form, treatment notes and complainant’s panty as exhibits. 7.PW5 the investigating officer based at Matsangoni police station stated that the incident was reported on 6 February 2024 at 8.44pm and was booked in the O.B. The complainant was medically examined by PW4 on 7 February 2024 and upon completion of investigations, on 8 February 2024 he charged the appellant with the offence. It was his evidence that he compliant was born on 10 May 2016 as per her birth certificate produced as exhibit 4 meaning she was 7 years at the time of commission of the offence. 8.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. 9.In defence, the appellant gave unsworn testimony where denied committing the offense and called 4 other witnesses in defence. It was is testimony that on the material day, he went to PW2 and asked if she required coconut from him. PW2 asked the complainant to accompany him to their farm to collect the coconut which she did. That she left her playing with a rope at his friend’s (Tidai) house, went prepared the coconut and came back. That he went back with the complainant who on reaching home, told PW2 her mother that the appellant had defiled her which made PW2 slap him. He challenged PW2 to take the complainant to the police station and he went ahead and reported that PW2 had assaulted him. Later on PW2 arrived and he was subsequently arrested. 10.DW2 Alfonse Kitsao Mwalimu testified that on the material day at about 6.15 pm, he was at sleeping at his home and was waken up to eat by his child at 7.15pm when he saw the complainant playing outside his house on a swing with other children. He testified that he saw the appellant preparing the coconut he had gotten from the adjacent land. After eating, he had a commotion on the road side and upon inquiry, he was informed that the appellant had defiled the complainant. 11.PW3 did not witness the incident but responded to the commotion that occurred between PW2 and the appellant. PW4’s evidence was that he was informed by DW3 about the fighting and accompanied the appellant to the police station and the hospital thereafter. 12.At the close of the trial, the appellant was found guilty of attempted defilement and sentenced to 10 years imprisonment. Aggrieved, he filed the present appeal where he raised the following grounds:i.The trial court erred in law and fact by failing to comply with Section 200 (1), (2) and (3) of the Criminal Procedure Code.ii.The trial court erred in law and fact by convicting the appellant on evidence that did not support the particulars of the charges.iii.The trial court erred in law and fact by completely misapprehending evidence by the defence witnesses.iv.The trial court erred in law and fact by denying the appellant’s advocate and opportunity to mitigate.v.The trial court erred in law and fact by considering unproved extraneous factors in convicting and sentencing the appellant.vi.The trial court erred in law and fact by condemning the appellant on the basis of the conduct of his family members.vii.The trial court erred in law and fact by implying facts which ought to have been proved beyond reasonable doubt.viii.The trial court erred in law and fact by misapprehending the evidence adduced by the parties thereby arriving at a wrong decision.ix.The trial court erred in law and fact by entering judgement against the weight of evidence on record.x.The trial court erred in law and fact by harsh and biased. 13.The appeal was canvassed by written submissions where the appellant was represented by Mr. Denis Kinaro learned Counsel while the respondent was represented by Miss Alice Ochola learned Counsel. Both parties filed their written submissions which they relied on at the hearing of the appeal. 14.On the allegation of none compliance with Section 200 of the Criminal Procedure Code,the appellant submitted that Hon. Ivy Wekesa learned magistrate erred by proceeding with the case after taking over from Hon. J.N Mwaniki learned magistrate without informing the appellant of his right to recall the witnesses who had testified to either testify afresh or be cross examined. He relied on ODPP vs Peter Onyango Ondongo & 2 others (2015) eKLR in urging that the appellants to fair trial under Article 50 of the Constitution were violated by the said failure which vitiated the entire trial. 15.The respondent submitted that the ingredients of the offence of attempted defilement, as set out in Muchomba vs DPP (2025) KEHC 1735 (KLR), being age of the victim, positive identification of the perpetrator and proof of steps taken towards committing the offence which was not completed were proved beyond reasonable doubt. 16.On the allegation of contravention of section 200 of the Criminal Procedure Code, the respondent submitted that the case was fully heard by the previous magistrate where all prosecution and defence witnesses had testified. That the succeeding magistrate did not take any evidence but only reserved the case for judgement after the defence closed its case. It argued that the trial court complied with section 200 (1) (b) of the CPC and placed reliance on the case of Joseph Kamau Gichuku vs Republic (2013) eKLR in support of its submission that a re-trial contemplated under Section 200 (4) of the Act was unnecessary in this case. 17.It was further submitted that the trial court properly dismissed the defence which was mainly comprised on DW2 and DW3 testimonies which constitutes an account of aftermaths of the event that did not challenge the prosecution evidence. As regards mitigation, it was contended that the trial court heard mitigation from the appellant and duly considered it in arriving at the sentence and that no extraneous factors were considered or influenced the outcome of the case. This court was urged to dismiss the appeal and uphold the conviction and sentence. Analysis and determination 18.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. 19.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.” 20.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 was subjected to an unfair trial by virtue of none compliance with section 200 of the Criminal Procedure Codeii.Whether the prosecution proved its case beyond reasonable doubt.iii.Whether the sentence was manifestly harsh and excessive. Whether the appellant was subjected to an unfair trial by virtue of none compliance with section 200 of the Criminal Procedure Code 21.The appellant submitted that the learned trial magistrate erred by taking over the case from the previous magistrate and proceeding with the hearing without affording the appellant an opportunity to decide whether he desired to start a fresh or recall witnesses for cross examination as required under Section 200 of the Criminal Procedure Code (CPC) thereby violating his right to fair trial as guaranteed under Article 50 of the Constitution. He faulted the honourable magistrate for failing to appreciate the mandatory nature of section 200 (3) of the CPC and its import on the trial arguing that on 12 March 2025, the case was fixed for further hearing and not judgement as contended by the respondent thereby rendering Section 200 (1) (b) of the Act inapplicable. While relying on DPP vs Peter Onyango odongo & 2 others (supra), he submitted that the omission was fatal and rendered the entire proceedings a nullity. 22.The respondent maintained that the appellant’s the case was fully heard by the previous magistrate where all prosecution and defence witnesses had testified. That the succeeding magistrate did not take any evidence but only reserved the case for judgement after the defence closed its case. It was argued that the trial court complied with section 200 (1) (b) of the CPC and placed reliance on the case of Joseph Kamau Gichuku vs Republic (2013) eKLR in support of its submission that a re-trial contemplated under Section 200 (4) of the Act was unnecessary in this case. 23.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). 24.The contention relates to the applicability of section 200 of the CPC in this scenario and its import on the case. Section 200 of the CPC provides thus;“200.(1)Subject to subsection (3), where a magistrate, after having heard and recorded the whole or part of the evidence in a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and exercises that jurisdiction, the succeeding magistrate may—(a)deliver a judgment that has been written and signed but not delivered by his predecessor; or(b)where judgment has not been written and signed by his predecessor, act on the evidence recorded by that predecessor, or re-summon the witnesses and recommence the trial.(2)Where a magistrate who has delivered judgment in a case but has not passed sentence, ceases to exercise jurisdiction therein and is succeeded by a magistrate who has and exercises that jurisdiction, the succeeding magistrate may pass sentence or make any order that he could have made if he had delivered judgment.(3)Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right.(4)Where an accused person is convicted upon evidence that was not wholly recorded by the convicting magistrate, the High Court may, if it is of the opinion that the accused person was materially prejudiced thereby, set aside the conviction and may order a new trial.” 25.The record shows that Hon S.D Sitati (SRM) heard all prosecution witnesses and five defence witnesses. On 27 August 2024, DW5 testified and the appellant sought for an adjournment to call more witnesses. The trial magistrate allowed the application, fixed the case for further defence hearing and informed the parties that he was on transfer and the case would be reallocated to another judicial officer. On 12 March 2025, the case was placed before Hon Ivy Wasike PM for further defence hearing. However, Mr Kinaro, learned counsel for the appellant informed the court that he has closed the defence case and the case was later reserved for judgement on 2 May 2025. 26.From the facts of the case, it is apparent that even though the case was initially scheduled for further defence hearing, the defence closed its case without calling any other witness and the succeeding magistrate did not commence hearing of the proceedings within the context of Section 200 (3) of the CPC. Instead she proceeded to write the judgement purely on the basis on evidence taken down by the preceding magistrate. Section 200 (1) (b) of the CPC grants the trial court in such a case, a discretion of either writing the judgement on the basis of evidence recorded by the preceding magistrate or re-summoning the witnesses and recommencing the trial. 27.To this court’s mind, Section 200 (1) (b) grants the trial court discretion to determine how to proceed in a case where all evidence was taken down by the previous magistrate. The court had discretion to either write a judgement on the basis of the evidence so recorded or order for a retrial. Having acted in one of the two ways allowed by law, trial court cannot be faulted for exercising its discretion in the manner that it did. 28.Even if the case was to fall under Section 200 (3) of the CPC, it is not automatic that a trial starts de novo. In such a case, the accused has discretion to decide either to recall the witnesses or have the case proceed from where it had stopped. However, as stated earlier, this was not the case herein. 29.Under Section 200 (4) of the CPC, the High Court can only set aside a conviction and sentence and order a retrial where it finds that the accused was materially prejudiced by the failure to recall the witnesses. In this case, the appellant who was represented by counsel, has not demonstrated any material prejudice suffered that would warrant a retrial. Such a course, in my view, would run afoul Articles 50 (2) (e ) and 159 (2) (a), (b) and (d) of the Constitution. 30.The court finds that the trial court’s action was lawful and within the provisions of Section 200 (1) (b) of the CPC and that there is no evidence to support the allegations of violation of constitutional rights or the law. Whether the prosecution proved its case beyond reasonable doubt 31.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.” 32.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 i. Proof of age of the victim 33.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.” 34.The PW1 the complainant testified that she 7 years old. Her testimony was corroborated by PW2 her mother who testified that PW1 was born on 10 May 2016 and PW5 the investigating officer who produced PW1’s birth certificate as exhibit 4. 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. ii. Positive identification of the appellant as the assailant 35.PW1 testified that she knew the appellant who was her neighbour and went with him on the material day to collect coconut’s as per her mother PW2 ‘s instructions. She testified that the appellant defiled her in the bushes at about 7pm and though it was getting dark, she identified him since he was the only person with her. Her evidence was corroborated by PW2 who confirmed that she indeed asked the appellant to bring for her coconuts where the appellant asked PW1 to accompany him so that she could bring it. DW2 also confirmed seeing the appellant and the complainant together on the material day and time. 36.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….” 37.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. In this case, as stated above, PW1’s evidence was duly corroborated by PW2 and DW2. 38.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.” 39.The court is satisfied that there was positive identification through recognition. iii. The overt acts or steps taken by the appellant towards the commission of the offence of defilement that was not completed 40.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.” 41.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.” 42.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. 43.PW1’s evidence was that on 6 February 2024 at around 7pm, she was alone with the appellant in the bush where he had gone to pick coconuts when the appellant undressed her, removed her panty and defiled her. He told her not to tell anyone and they left together but when they got home, she informed PW2 in the presence of the appellant.PW2 slapped the appellant which caused a commotion. PW1 ‘s evidence was corroborated by medical evidence adduced by PW4 who examined her the following day and established that her hymen was intact but there were bruises on the labia minora extending from 7 o'clock to 10 o’clock, reddening bruises and smelling greyish discharge from the same area leading to a conclusion that there was an attempted penetration. He produced the P3 form, Post Rape Care Form, treatment notes and the complainant’s panty as exhibits to support his findings. His evidence remained unchallenged. 44.It is apparent that the only eye witnesses were the complainant and the appellant. However, the complainant’s testimony was corroborated by medical evidence adduced by PW4. Additionally, PW1’s testimony was duly corroborated by PW2 and DW2 who confirmed that the PW1 and the appellant were seen together near the scene of crime on the material day. 45.The evidence above demonstrates that the appellant put his intention to defile the victim into execution, undertook overt acts towards execution of the offence by attempting to penetrate the complainant which went beyond mere preparation to commit an offence. He actually committed the offence save that there was no complete or partial penetration into the vagina or anus of the complainant as defined in Section 2 of the Sexual Offences Act. The court finds that all ingredients of the offence of attempted rape were proved beyond reasonable doubt. Consequently, the conviction by the trial court is upheld. Whether the sentence was manifestly harsh and excessive 46.The appellant submitted that the sentence by the trial court was harsh, excessive and that the appellant’s counsel was denied an opportunity to mitigate. The record of proceedings showed that the appellant duly mitigated on 30 May 2025 before sentencing and there is no evidence that his mitigation was not taken into account. 47.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.” 48.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. 49.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. The appellant was sentenced to the minimum sentence possible and the court finds that it was not harsh or excessive as submitted. Final Orders 50.In view of the above, the court makes the following orders:i.The appeal against conviction and sentence lacks merit and is accordingly dismissed.ii.The sentence imposed by the trial court is upheld. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 23RD DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE