https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12127

Ngumbi v Republic (Criminal Appeal E034 of 2025) [2026] KEHC 12127 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12127 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E034 of 2025 MW Mutuku, J July 30, 2026 Between Alex Kimanthi Ngumbi Appellant and Republic Respondent (Being an appeal from the Judgment of the trial court, Hon. Jalang’o (SPM) in Tawa MCSO No. E007 of 2024) Judgment 1.The appellant was charged with the offence of attempted defilement of child contrary to Section 9(1) as read with Section 4 of the Sexual Offences Act. 2.The particulars of the offence were that the appellant, on the 13th May 2024 at [Particulars Withhheld] village, [Particulars Withhheld] location in [Particulars Withhheld] East Sub County within Makueni County, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of Y.M.M, child aged 17 years old. 3.The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that the appellant, on the 13th May 2024 at [Particulars Withhheld] village , [Particulars Withhheld] location in [Particulars Withhheld] East Sub County within Makueni County, intentionally and unlawfully did an indecent act with ac child of Y.M.M, child aged 17 years old, by touching her private parts namely breasts with his hand. 4.The appellant was convicted of the offence committing an indecent act with a child contrary to Section 11(1) of the Sexual offences Act No. 3 of 2006 and sentenced serve 10 years imprisonment.. 5.The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:a)That the learned trial magistrate erred in law and facts by failing to find that the key ingredients of the offence were not established against the appellant herein.b)That the learned trial magistrate erred in law and facts by failing to consider the material contradictions and inconsistencies in the evidence which rendered the prosecution witnesses incredible and worthless of belief but also impugned the whole of the prosecution case.c).That the trial court erred in both law and facts by failing to find that the critical witnesses needed to substantiate the prosecution case were not availed and this contravened Article 50(2) (c) and (j) of the Kenyan Constitution 2010.d).That the appellant be furnished with law proceedings to enable him lodge more amended grounds of appeal. Evidence. 6.PW 1 Nicholas Mutua is clinical officer based at Kisasi Sub County. He examined the complainant on 15th May 2024. That the victim gave a history of attempted defilement and her allegation was that the assailant had attempted to defile her. The history given to the medical officer was that the assailant had undressed her to the knee level, but ran away when he saw people approaching. Upon examination, the victim had bruises on her neck. He assessed the degree of injury as harm. He did examine her genitalia. 7.The court carried out voir dire for the minor and found her to be intelligent enough to give sworn testimony and to understand the meaning of an oath. She testified as PW2 and recalled that on 13th May 2024 at around midday, she had gone to fetch water. She met the accused at the water kiosk and they spoke. Later, she fetched water and stared walking home. The accused walked ahead of her, and he suddenly entered his home. He later emerged and touched her breasts. When the complainant told him to stop, he told that she was proud. 9.The accused then held her by the neck and fell her down. He undressed her, and removed her clothes. That is when two children emerged and the appellant ran away. The complainant reported the incident to her mother and the case reported to Mbumbuni Police Station, and the victim treated at Mbumbuni Hospital. The minor testfied that her date of birth is 13th January 2007. 10.In cross examination, the victim maintained that the offence had taken place at midday. That there were children who had witnessed the offence, and that Moses responded to her screams only to find that the appellant had fled the scene. 11.FM is the mother to the victim. She confirmed that she had sent the complainant to fetch water. That later, the victim managed to fetch water, and that the victim’s mother who had since left her house to attend a meeting was called by her mother in law and informed that he victim had been defiled. She went home when she met the complainant, and after interrogating her, they reported the matter to the police, and escorted the victim who had visible scratch marks on the neck to hospital. She stated that the appellant is a cousin to the complainant. She did witness the incident nor did she visit the scene. 12.No. 107467 P.C Everline Njoki was the investigating officer in this case. She confirmed that on 13th May 2024, the complainant and her mother reported a case of attempted defilement. She met the victim who narrated what had happened to her, and that the Investigating Officer was able to see bruises on her neck. The report was booked, and the victim referred to hospital and, the accused upon arrest by members of public on 26th June 2007 was charged with the offence before court. The officer produced a birth certificate in respect of the victim showing that the victim was born on 13th January 2007. She also visited the scene and established that the offence took place along a path, approximately 100 metres from Mukuku Market. 13 .Upon the closure of the prosecution's case, the court gave a ruling on whether there was a case to answer. Section 211 of the Criminal Procedure Code was complied with. The appellant opted to give sworn testimony. 14.DW1 was the Appellant. He testified that he on the 23rd June 2024, he had gone to visit his wife. That on the 24th June 2024, as he returned, while at [Particulars Withhheld] area, he was confronted by two met on a motor bike. That the two men attacked him and took away his mobile phone. The assistant chief visited the scene and the appellant was arrested and later escorted to the police station. 15.He denied the charges, and further told the court that the complainant is his cousin, and that they stay together. He told the court that he had met the victim by the road, and she jokingly removed his cap from his head. As he tried to grab back his cap from her head, he accidentally hurt her on the neck. That he did not have any ill intentions and that he had called her later to seek for forgiveness, but he was later arrested and charged with the offence before court. 16.In cross examined, he stated that he did not have any grudges with the complainant. He also admitted that he had caused the injuries to the complainant’s neck, and that it was by accident. Submissions. 17.In his submissions, the appellant stated that the trial court had failed to consider the fact that actus reus and mens rea ought to be considered to form the basis of a crime in criminal law. Further that the prosecution evidence was riddled with contradictions and inconsistencies, and particularly took issue with the evidence of PW 4, the investigating officer who stated that the complainant had told her that when the appellant heard noises, he ran away from the scene with her phone. The appellant also took issue with the fact that the complainant mentioned two children who approached the scene and Moses who had responded to the alarm raised by the complainant, yet they did not record their statement with the police. 18.The prosecution filed their submissions dated 6th May 2026, and maintained that the prosecution case had been proved to the required standards, and that there was no legal requirement imposed on the prosecution to call a particular number of witnesses. Analysis 20.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different finding” 21.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic, the East Africa Court of Appeal stated on the duty of the court on a first appeal:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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, see Peters v. Sunday Post, [1958] E. A. 424.” 22.The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 23.Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 24.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. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:“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. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 25.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:“Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.” 26.It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only two issues, that is:a.Whether the trial court failed to comply with the provision of Article 50(2)(c) and(j) of the Kenyan Constitution 2010.b.Whether the offence was proved to the required standards. 27.The court will thus address the appeal on each of the two issues raised. The first issue is that there was a mistrial due to non-compliance with article 50(2) (c) and (j) of the Constitution. The said article provides as follows:(2)Every accused person has the right to a fair trial, which includes the right—(c)to have adequate time and facilities to prepare a defence;(j)to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence; 28.The appellant was duly informed of the two rights at the very onset. The court record indicates that the prosecution was ordered to supply the appellant with witness statements, and on 19th September 2024, the learned state prosecutor told the court that he was going to supply the same to the appellant. There is no evidence to suggest that the appellant was denied adequate time and facilities to prepare for his defence. The rights were thus not breached 29 .The next issue is the question of proof of the offence of attempted defilement. 30 .The ingredients of the offence of attempted defilement were set out in the case of Benson Musumbi V Republic [2019] eKLR where the court held that:““ 21.The prosecution in an offence of attempted defilement must prove the other ingredients of the offence of defilement except penetration; it must prove the age of the complainant, positive identification of the assailant, and then prove steps taken by the assailant to execute the defilement which did not succeed. Attempted defilement is as if it were a failed defilement, because there was no penetration.” 31.This position was reiterated by the court in John Gatheru Wanyoike v Republic [2019] eKLR where the court held that:“It is clear that the elements of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the child was a minor, that there was an act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.” 32.Thus, in determining this Appeal, the court has to establish the following:a.Whether the age of the complainant was proved.b.Whether the appellant was positivity identified by the minor as her assailant.c.Whether there was an act to cause penetration, which was not successful. 33.The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016)eKLR stated as follows in respect of proving the age of a victim in cases of defilement:...“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.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 35.The victim stated that she was born on 13th January 2007, and her oral evidence is supported by the Certificate of birth. The court thus finds that the age of the complainant has been proved to be 17 years at the time of the alleged offence. 36.The court is satisfied that the appellant was recognized by the minor , who knew him. The offence took place during the day, and the appellant is a cousin to the complainant. Consequently it was provided that the appellant was the perpetrator. 37.The last issue is attempted penetrationSection 388 of the Penal Code defines “ attempt” as:-388 (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. 38.The above section brings out the two main ingredients of an attempt offence. One is the intention (mens rea) and the other is the execution of the intention (actus reus). The prosecution must among others prove the steps taken by the accused to execute the defilement which did not succeed. 39 .In David Aketch Ochieng [2015] eKLR Makau J. observed as follows on attempted defilement:“The appellant was charged and convicted with an attempted defilement contrary to Section 9 (1) of Sexual Offences Act No. 3 of 2006. What is attempted defilement? It can safely be stated to be the unsuccessful defilement. For a successful prosecution of an offence of attempted defilement, the prosecution must adduce sufficient evidence to the required standard to prove an attempted penetration. This may in my view include bruises or lacerations from complainant’s vagina and/or bruises or lacerations of culprits genital organ and finding male discharge such as semen or spermatozoa outside the complainant’s vagina or innerwear without there being penetration. There was absence of penetration or evidence linking the culprit with the offence of attempted defilement.” 40.I find that the trial magistrate was right not find and hold that the offence of attempted defilement did not take place. 41 .On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows:(1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. 42.The complainant told the court that the appellant, besides pushing her to the ground also touched her breast. When she requested him to stop, his response to her was that she was proud. He then went on to hold her by the neck and fell her down. As a result, she sustained bruises to her neck, a fact that was confirmed by the medical officer. 43.The appellant on the other hand did not deny the fact that he had met the compliant on the date of the offence. He also admitted having caused bruises to her neck, but his explanation was that he was at that time trying to take back his cap from her. The defence by the appellant is an afterthought. He did mention the issue of the cap to the complainant, nor did he cross examine on this issue. In his own words, he stated that he had no grudges with the complainant, and thus, she had no reason to frame him up. 44.The failure by the prosecution to call the children who are said to have approached the scene and distracted the appellant, as well as Moses who responded to the screams by the complainant were not fatal to the prosecution case, as none is said to have witnessed the actual offence. 45.I thus find that the conviction on the alternative charge was sound, as the prosecution case was proved to the required standard of proof beyond reasonable doubt. 46.I note that the court meted out a sentence of 10 years from the date of plea. The sentence meted out is the mandatory minimum sentence. Therefore, I find that the sentence is legal. I have said enough to demonstrate that the impugned judgment is for upholding. Determination 47.In the circumstances, I make the following orders: -a.The Appeal on conviction lacks merit and is accordingly dismissed.b.The sentence meted out is lawfulc.Right of appeal 14 days.d.The file is closed. DELIVERED, DATED AND SIGNED ON 30TH DAY OF JULY, 2026. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.MARTHA MUTUKU.JUDGE.In the presence of: -Miss Omol for the StateAppellant in personCourt Assistant – Mr. Kibet.