https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11448

Sila v Republic (Criminal Appeal E080 of 2024) [2026] KEHC 11448 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEHC 11448 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E080 of 2024 JK Biomdo, J July 22, 2026 Between Onesmus Sila Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. F.Makoyo (PM) in Kilungu PMC (SO) Case No. E021 of 2023) Judgment 1.The appellant herein, Onesmus Sila, was convicted and sentenced to 10 years imprisonment by the Principal Magistrates’ Court at Kilungu for the offence of attempted rape contrary to section 4 of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that on 2 May 2023 at around 1930 hours at [Particulars Withheld] in Mukaa sub-county within Makueni County, intentionally and unlawfully attempted to cause his penis to penetrate the vagina of F K (a person with disability) without her consent. 2.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 2 May 2023 at around 1930 hours at [Particulars Withheld] in Mukaa sub-county within Makueni County, intentionally the breasts of F K (a person with disability) against her will. Trial court Case 3.The appellant denied the allegations prompting the trial where the prosecution called five (5) witnesses to prove its case. PW1 the complainant FM testified that on 2 May 2023 in the evening, she was headed home from the market when the appellant forcefully pulled her to a nearby kiosk, pinned her against the perimeter wall, pushed her to the ground and tried to remove her clothes including her panty. She resisted for a considerable period of time and briefly got away but the appellant ran after her, tripped her legs which made her fall down, kept on trying to remove her clothes while chocking her and covering her mouth until her brother, PW2 appeared and pulled the appellant from her. She ran home and informed her other brother PW3 who together with PW2 apprehended the appellant and took him to the police station. She testified that she sustained injuries on her neck, hands and ribs as a result of the struggle. She denied that the appellant was her boyfriend. 4.PW2 MM testified that on the material day a few minutes after 7.00 pm, her mother asked him to check on PW1 as she had taken too long at the market. Along the road to the market, he saw a man and woman at a distance but did not recognize them since it was dark. He saw the man tripping the woman and she fell. She made noise and he recognized it was PW1. He ran there and found the appellant touching PW1 all over while blocking her mouth with his hand. He pulled him off and apprehended him with the assistance of PW3 before handing him over to the police. 5.PW3’s evidence was that on the material day at around 7pm, PW1 arrived home crying and shortly thereafter, he heard PW2 calling him, rushed there and found PW2 had apprehended the appellant and after being informed what had happened, they took the appellant to the police. 6.PW4 a clinical officer at Kilungu sub-county hospital examined PW1 on the material day but did not find any visible injuries. He gave her pain killers for the pain and discharged her. He produced treatment notes and the P3 form as exhibits. 7.PW5 the investigating officer testified that on 2 May 2023 at 8.20pm, the appellant was taken to Kilombe police station by members of the public on allegations of attempted rape. He carried out investigations and visited the scene which is next to a deserted kiosk and found it disturbed with signs of a struggle. He drew a sketch of the scene which he produced as evidence (exhibit 3). He also produced a certificate showing the complainant was deaf and her national identity card showing she was an adult. 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 denied committing the offence, stating that on the material day, he met PW1 on her way from the market and escorted her home as it was the norm. That the two were talking outside PW1’s gate when PW2 appeared and without provocation slapped PW1. This prompted him to struggle with PW2 in defence of PW1 where shortly thereafter PW3 joined the fight. The two overpowered him, tied him and took him to the police station. He stated that the signs of a struggle at the scene referred to by PW5 was as a result of the fight and not attempted rape. 10.At the close of the trial, the appellant was found guilty of attempted rape 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 delivering judgement which was not reflective of the facts presented by the parties.ii.The trial court erred in law and fact by failing to appreciate the law as it relates to the burden of proof required in criminal cases.iii.The trial court erred in law and fact by failing by failing to find doubt in favour of the appellant on the face of glaring contradictions by prosecution witnesses.iv.The trial court erred in law and fact by not giving the accused an opportunity to cross examine prosecution witnesses.v.The trial court erred in law and fact by failing to appreciate that insufficient evidence was tendered against the appellant.vi.The trial court erred in law and fact by failing to find that the offences of attempted rape and indecent act had not been proved against the appellant.vii.The trial court erred in law and fact by shifting the burden of proof to the appellant.viii.The trial court erred in law and fact by convicting the appellant on insufficient evidence. 11.The appeal was canvassed by written submissions as well as oral submissions which were highlighted by Mr Nzioki learned counsel for the appellant and Mr Musyoki learned counsel for the respondent. The appellant filed written submissions dated 10 February 2026. 12.The appellant submitted that the offence of attempted rape as prescribed in Section 4 of the Sexual Offence Act requires proof of the intention to unlawfully and intentionally commit rape, an overt act sufficiently proximate to penetration and absence of consent. He contended that these aspects were not proved beyond reasonable doubt. He argued that the respondent failed top prove intention to rape. That the appellant consistently maintained that PW1 was his girlfriend, a fact that was not rebutted. He went to state that no evidence of prior complaints, threats, coercive conduct or hostility was adduced to suggest intention to forcibly rape the complainant. 13.He further submitted that the prosecution did not establish an overt act towards penetration inform of removal of undergarments, exposure of genitalia, positioning for penetration, attempted insertion or other such conducted connected to penetration. He cited Mussa s/o Mohammed vs Republic in support thereof. 14.It was further submitted that there was no medical evidence to corroborate as aspect of forceful physical struggle which weakened the prosecution’s case. He argued that the trial court failed to consider the appellant’s defence which was not a mere denial but directly challenged the prosecution narrative regarding absence of consent and criminal intent. 15.It was contended that the absence of injuries despite the struggle, lack of evidence of attempted penetration and failure to adequately interrogate the alleged relationship between the appellant and PW1 created substantial doubt on the prosecutions case that should be resolved in the appellant’s favour. It was further argued that by convicting the appellant on the basis of assumptions and conjecture, the trial court effectively shifted the burden of proof to the appellant thereby violating the constitution. The court was urged to set aside the judgement and acquit the appellant. 16.The respondent opposed the appeal and submitted that the prosecution proved beyond reasonable doubt that the appellant attempted to rape PW1. He pointed out that the prosecution evidence was consistent and demonstrated that the complaint was a 31 year old female living with disabilities. He submitted that evidence before trial court was that the appellant accosted PW1 on her way home, grabbed her arm, and tried to remove her clothes. That this evidence proved that the appellant had the intention to commit the offence of rape. It was further argued that evidence by PW1 was corroborated by PW2 who witnessed what happened. That PW1 denied that she was the appellant's girlfriend. He urged the court to uphold the trial court's finding and dismiss the appeal. Analysis and determination 17.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 and Kiilu & Another v Republic [2005]1 KLR 174. 18.Having considered the grounds of appeal, the evidence adduced in the lower court, the trial court’s judgement, the record of proceedings and the rival submissions of parties, I find the main issues for determination to be;i.Whether the appellant’s constitutional rights were violated.ii.Whether the prosecution proved its case beyond reasonable doubt. Whether the appellant’s constitutional rights were violated 19.The appellant in his petition of appeal averred that he was not given an opportunity to cross examine prosecution witnesses. However, no submissions were advanced on this point. Further, in his submissions the appellant contended that he was convicted on the basis of assumptions and conjecture rather than proof beyond reasonable doubt which violated his constitutional rights under Article 50 (2). 20.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). 21.This court is enjoined to interrogate and resolve any allegations of constitutional rights by dint of Article 165 of the Constitution. If established, such violations can alter the course of proceedings. On the first allegation, Article 50 (1) and (2) (k) of the Constitution guarantees an accused person right to fair hearing which include the right to adduce and challenge evidence. Cross examination of witnesses is a critical step in any trial that allows an accused to challenge evidence. Sections 145, 146, 149, 154 and 161 of the Evidence Act outlines and sets the mandatory order of the stages of examination of witnesses; ie examination in chief, cross -examination and re-examination. It provides a wide latitude in cross examination which need not be confined to facts raised during examination in chief. See also Section 150 of the Criminal Procedure Code. 22.The trial court record on the matter is as follows; PW1 testified on 4 September 2023 and was duly cross examined by the appellant. PW2 and PW3 testified on 25 September 2023 and were duly cross examined by the appellant. PW4 testified on 24 April 2024 and the appellant stated that he did not have any question for the witness during cross examination. PW5 testified on 17 July 2024 and was duly cross examined by the appellant. 23.The record is clear that the appellant was given an opportunity to cross examine all witnesses who testified on oath which he did. The allegation thus fails. 24.As regards the contention that the burden of proof was shifted, the court has not found any evidence to support it and none was provided. The trial court weighed evidence by the prosecution against the defence by appellant where it found in favour of the prosecution. This cannot amount to shifting of the burden of proof. The court finds no evidence support the allegation of violation of the Constitution. Whether the prosecution proved its case beyond reasonable doubt 25.The appellant was charged with the offence of attempted rape contrary to section 4 of the Sexual Offences Act. The said section provides as follows;“Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence of attempted rape and is liable upon conviction for imprisonment for a term which shall not be less than five years but which may be enhanced to imprisonment for life.” 26.The specific elements of the offence of attempted rape that the prosecution must prove beyond doubt are;a.Intend to commit the offence;b.Begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve;c.Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence;d.Proof of lack of consent. 27.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. 28.29. Attempted rape 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.” 30.A key aspect of attempted rape 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. 31.In order to prove intention to commit the offence, the prosecution must establish that the appellant had the intention to commit the offence. To do so, it must be shown that the appellant had put in motion his intention by making preparations to commit the offence. The question for determination is whether or not the conduct of the appellant constituted an overt act sufficiently proximate to constitute preparation to commit an offence. 32.In Mussa s/o Saidi vs Republic (1962) E.A 454 the court stated;“The principles of law involved are very simple but it is their application that is difficult.......................The intention will, in the majority of cases, only be capable of proof by inference and it follows in such cases that an act must be of such a character as to be incompatible with another reasonable explanation. Secondly, if the intention is established, the act itself must not be too remote from the alleged intended offence” 33.PW1 testified that on the material day as she was heading home from the market, the appellant accosted her by the road, took her next to her kiosk, pushed her to the ground and struggled to remove her clothes including her panty with a view to rape her. That after lengthy struggle, she managed to briefly ran away, but the appellant chased her, tripped her and she fell down. The appellant ckept on trying to remove her clothes while she was on the ground, chocked her and held her mouth. PW2 corroborated her testimony and provided direct evidence that he found the appellant on top of PW1 touching her all over. He intervened and with the help of PW3 apprehended the appellant at the scene. PW5 provided further corroboration when he visited the scene and found evidence of a struggle. The appellant in his defence admitted being with PW1 save for the fact that he claimed to have fought PW2 in the course of defending PW1. 34.The appellant contended that lack of medical evidence to corroborate PW1 severely weakened the prosecution’s case. However, while medical evidence is important, it is not mandatory to prove rape or attempted rape. The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR). 35.The absence of medical evidence does not mean there was no attempt to commit the offence. The court finds that the evidence of PW1 was duly corroborated by PW2, PW3 and PW5 that established all the ingredients of offence. It was clear from the evidence that PW1 did not consent and actually resisted the appellant’s advances which led to the struggle. This evidence demonstrates that the appellant put his intention to rape PW1 into execution. The evidence clearly shows overt acts by the appellant towards execution of the offence that went beyond mere preparation to commit an offence. 36.The appellant submitted that his defence was not considered. However, this court finds that the evidence by prosecution witnesses was cogent, consistent and outweighed the defence by the appellant. That does not amount to disregarding the said evidence. The court finds that the conviction by the trial court was safe and is upheld. 37.The sentence was not challenged by either party and the court finds no reason to intervene. Final Orders 38.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 10 years imprisonment by the trial court is upheld. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 22ND DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE