3.The appeal was canvassed by way of written submissions. The appellant submitted that the complainant stated in her testimony that he had sex with her by inserting his penis into her vagina. However, that medical evidence adduced in the case did not support the said evidence in that the doctor who examined her found that the cervix and hymen were intact.
4.The appellant submitted that the evidence of the complainant that he defiled her was contradicted by the evidence of her step mother PW3 that she saw the complainant in the company of the appellant and that when she saw them they were conversing. That PW3 did not see him defiling the complainant.
5.The appellant submitted that the complainant stated that the incident took place at noon. That her step mother PW3 stated in her evidence that she saw the complainant in the company of the appellant at 5pm while she was fetching firewood. That the complainant’s father PW2 stated in his evidence that his wife PW3 informed him of the defilement at 3pm. That these contradictions mean that the witnesses are not reliable and that the evidence was a fabrication.
6.The appellant submitted that the ingredients for the offence of attempted defilement are as was stated in the case of Benson Musumbi –v- Republic (2019) that –
8.The appellant submitted that there was no sufficient evidence to convict him of the offence. He urged the court to allow the appeal, quash the conviction and set aside the sentence.
9.The state opposed the appeal through the submissions of the Senior Principal Prosecution Counsel, Mr. W.P Ochieng who submitted that the evidence adduced against the appellant was sufficient to sustain the conviction in this case. That in this case the prosecution only needed to prove that the victim was below the age of 18 years as was observed in the case of Daniel Ombasa Omwoyo –v- Republic (2016) eKLR.
10.Counsel submitted that the evidence of the complainant that the appellant defiled her was corroborated by the evidence of her step mother, PW3, who spotted the complainant talking to the appellant.
11.It was further submitted that the evidence of the complainant was cogent and credible. That it was buttressed by her clothes, PExh 1 that were torn. That attempt to defile was proved beyond reasonable doubt.
12.It was submitted that the ingredients of the offence of attempted defilement were as held by Mrima J. in the case of John Gatheru Wanyoike –v- Republic (2019) eKLR that:-
13.It was submitted that the alleged inconsistencies in the evidence of the prosecution witnesses were not material. That PW1 and PW3 gave the estimated time when the offence took place and not the actual time. That the alibi of the appellant was untested as no notice was given to the prosecution nor did the appellant call any witness to support it. Further that the sentence meted out by the trial court was commensurate with the crime committed by the appellant.
Analysis and Determination-
14.This being a first appeal, the duty of the court is to analyse and re-evaluate afresh the evidence adduced at the lower court and draw its only independent conclusions while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify – see Okeno – v- Republic (1972) EA 32.
15.The appellant challenged the decision of the trial court on the ground that the evidence adduced by the prosecution witnesses was contradictory in that the evidence of the complainant that the appellant defiled her by inserting his penis into her vagina was not supported by medical evidence as the clinical officer who examined her PW4 found the hymen intact and there were no injuries in her genitalia. That the witnesses gave contradictory evidence on the time that the offence took place with the complainant saying that it happened at mid-day while her step mother PW3 alluded that it took place at 5pm. The complainant’s father PW2 on his part testified that his wife PW3 informed him of the defilement at 3pm.
16.The way to treat contradictions and inconsistencies in a case was stated in the case of Philip Nzaka Watu v Republic (2016) CR. App. No. 29 of 2015 that:
18.In this case I am of the considered view that the contradictions went to the core of the prosecution case. The complainant stated that the appellant defiled her at mid-day. Her step-mother PW3 alluded that the offence took place at 5pm which was the time that she saw the complainant engaged in a conversation with the appellant at the place where the two were grazing their animals. That she learnt of the offence at 6pm after the complainant returned home from the grazing fields. The complaint’s father on the other hand stated that he was informed of the offence by his wife PW3 at 3pm on the material day. There is no doubt that these are varying versions of the same incident. The question then is whether the alleged offence was committed at mid-day or 5pm.
19.It was the evidence of the complainant that the appellant defiled her at mid-day and fled away. Her step-mother (PW3) on the other hand said that the appellant took off after he realized that she had seen him in the company of the complainant at 5pm. If then the court were to go by the evidence of the complainant that the appellant defiled her at mid-day and fled, how comes that her step-mother saw her in the company of the appellant at 5pm? Does it mean that the two thereafter came together and engaged themselves in a conversation during which time the step-mother saw them together? How comes that the complainant could have engaged herself in a friendly conversation with a person who had defiled her? This evidence does not add up and sounds suspicious.
20.The complainant’s step-mother said that she called her husband at 5pm when she saw the appellant and the complainant together. That she only reported to him that she had seen the appellant and the complainant together. That she did not make another call to him after the complainant returned home. If the above is what PW3 reported to her husband, the question is why her husband stated that she informed him of the defilement when she called him at 3pm? This is yet another piece of the evidence that shows that the evidence of the witnesses was not credible.
21.Whereas the complainant said that the appellant defiled her by having a full sexual intercourse with her, medical examination discounted her evidence that she had been defiled as the hymen was intact and there were no injuries in her genitalia. The medical evidence therefore discredits the evidence of the complainant that the appellant had a complete sexual intercourse with her. The appellant cannot have done so and left the hymen intact. The medical finding means that the complainant lied on the act of penetration.
22.The fact that the complainant lied that the appellant had a full penetration on her portrays her as an unreliable witness. The charge that ought to have been laid out against the appellant as per the evidence of the complainant is defilement. The appellant cannot have been convicted for the offence of attempted defilement based on the same discredited evidence that could not sustain a charge of defilement. In Ndung’u Kimani vs. Republic (1979) KLR 282, the Court of Appeal held the following on credibility of witnesses:In this case it was clear that the witnesses were not credible. It was unsafe to rely on their evidence as the basis of a conviction.
23.The appellant stated in his defence that he was in Nairobi on the day that the offence was committed. That he came back on the 10/3/2019 and he was arrested on 12/3/2019. The appellant thus raised a defence of alibi. It is trite law that an accused person who raises the defence of alibi does not thereby assume the burden of proving it and that it is sufficient if the alibi establishes reasonable doubt as to whether or not the accused was at the scene of the crime, (see Kiarie vs. Republic (1984) KLR 739) - as cited by the Court of Appeal in Godfrey Ochieng Songa v Republic (2008)eKLR. The duty to prove a criminal case lies on the prosecution throughout the trial. The appellant herein did not have a duty to prove his alibi.
24.On my own analysis, I find no sufficient evidence to prove the charge of attempted defilement. The prosecution evidence was so contradictory to the extent that it created doubt whether the offence had actually taken place. The trial magistrate in the case made no attempt to consider the contradictions in the evidence of the prosecution witnesses and failed to consider the credibility of the witnesses before believing their evidence. In Meshack Mutisya Muasya v Republic  eKLR Odunga J. held the following on demeanor of witnesses:
25.The reasons given by the trial magistrate in this case for believing the evidence of the prosecution witnesses were not plausible in face of the contradictions exhibited in the case. In the whole there was no credible evidence that the appellant attempted to defile the complainant. The appellant was wrongly convicted of the offence. I thereby allow the appeal, quash the conviction entered against the appellant and set aside the sentence of 10 years imprisonment. The appellant is thus set at liberty forthwith unless otherwise lawfully held.