[2007] KEHC 1270 (KLR)
The court found that the evidence of the complainant, corroborated by two other witnesses, established beyond reasonable doubt that the appellant attempted to rape the complainant. The identification of the appellant was positive and credible, and the circumstances described by the witnesses were consistent and...
Source-derived case information.
- Citation
- [2007] KEHC 1270 (KLR)
- Parties
- Appellant: Paul Njambuya Wanjiru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 190 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- MM Kasango
- Legal Topics
- Attempted Rape, Indecent Assault, Theft, Possession of Traditional Liquor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Paul Njambuya Wanjiru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the evidence adduced proved the offence of attempted rape beyond reasonable doubt.
- 2 Whether the conviction and sentence for attempted rape were proper in law.
- 3 Whether the appellant was properly acquitted of the charge of theft of spectacles.
Ratio Decidendi
The court found that the evidence of the complainant, corroborated by two other witnesses, established beyond reasonable doubt that the appellant attempted to rape the complainant. The identification of the appellant was positive and credible, and the circumstances described by the witnesses were consistent and detailed. The appellant's denial was not sufficient to displace the prosecution's case. There was no evidence to support the charge of theft of spectacles, and the trial court was correct in acquitting the appellant on that count. The sentence of seven years' imprisonment for attempted rape was not excessive given the circumstances of the offence. Accordingly, the appeal against...
Court Disposition
appeal dismissed
Orders
- The appeal against conviction is dismissed.
- The appeal against sentence is dismissed.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Criminal Appeal 190 of 2005
PAUL NJAMBUYA WANJIRU………………………..….……...……….APPELLANT
Versus
REPUBLIC…………………………………….……….……………….RESPONDENT
[Being an appeal filed against the conviction and sentence of T.W. Murigi, Senior Principal Magistrate in Criminal Case No. 1794 of 2004 at Murang’a.]
JUDGMENT
The appellant was charged with attempted rape contrary to Section 141 of The Penal Code. In the alternative he was charged in indecent assault of a female contrary to Section 144 (1) of the Penal Code. In count 2 the appellant was charged with theft of spectacles contrary to Section 279 (a) of the Penal Code. In count 3 he was charged with being in possession of traditional liquor contrary to section 25 (1) of cap 122. He pleaded guilty to count 3 and was sentenced to a fine of Ksh. 5000/= and in default 4 months imprisonment. The learned magistrate after the trial convicted the appellant of attempted rape but found him not guilty of stealing. In respect of count 1 the appellant was sentenced to 7 years imprisonment. He now seeks to appeal against conviction and sentence. The evidence of pw1 was that on 12th December 2004 at about 3. 00 pm she was on her way from church. She passed by a bushy and lonely road. The appellant was behind her and on realizing his presence she made way for him to pass. He told her that he did not wish to pass but wanted to make love to her. The complainant began to run but was tripped by the appellant and she fell down. Her spectacles also fell down. She was then involved in a struggle with the appellant for 30 minutes. She fell with her face facing downwards to the ground. The appellant came on top of her and began to remove her clothes. He pulled her skirt upwards and was trying to remove her inner clothes. He had also pulled down his trousers. The complainant could feel his body on her back. As the struggle was going down pw2 passed by and the complainant asked her for help. She ran to get assistance. Pw2 came back with complainant mother. On the mother arriving and screaming the appellant run holding his trousers. Pw2 was able to confirm that she found the complainant struggling with the appellant when the appellant was trying to remove her clothes. She confirmed that she could no assist the complainant but that she went for assistance. They returned to the scene with the mother. Pw3 the mother also confirmed that she was called by pw2 and they went to the scene and that as they approached they found the appellant on top of the complainant and the appellant was holding the complainant by the throat while the other hand was trying to remove her clothes. She began to call out for assistance and that is when the appellant run away. Pw1, pw2 and pw3 confirmed that they could positively identify the appellant indeed they identified him at the dock. The complainant also noted his deformity which description she gave to the police. In his defence the appellant denied the charge and denied being at the scene. I have re-examined the evidence and I find that am in the agreement with finding of the guilty of the 1st count of the lower court. There was no evidence to support the charge of theft of spectacles as correctly found by the trial court therefore I dismiss the appeal against the conviction.
The sentence of 7 years is not excessive and I do also dismiss the appeal against sentence.
Dated and delivered at Nyeri this 28th day of September, 2007.
MARY KASANGO
JUDGE