10.This being a first appeal, it’s the duty of this Court to re-consider and to re-evaluate the evidence adduced before the trial Court with a view to arriving at its own independent conclusions and findings (See Okono vs. Republic  EA 74). In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses as they testified before the trial Court and, therefore, it ought to give due regard in that respect as so held in Ajode v. Republic  KLR 81.
11.Having carefully perused the record, this Court is now called upon to determine whether the offences of attempted defilement and assault were committed, and if so, whether by the Appellant.
12.It is established by law and settled judicial precedents that the offence of attempted defilement carries three components. They are the age of the victim, whether there was an attempt to penetrate the victim and identification of the assailant. The offence of assault calls for proof that an assailant intentionally inflicted injuries on a victim without any legal justification.
13.Before dealing with the said aspects of the offences, this Court will tender a brief summary of the evidence at trial.
14.The prosecution’s case was as follows: The complainant, B.C. (testified as PW2) was a 7-year old Class 2 student living in Kapkoris. PW1 was one JK, the complainant’s father. He confirmed that his daughter was 7 years old at the time of the offence. He relied on her Birth Certificate which he tendered in evidence.
15.According to PW2, she was in a field with a child when the Appellant found them on 2nd December, 2020. He threw the child to the ground, grabbed PW2 and took him behind the complainant’s home. He then removed her clothes, removed his penis, put on a condom and inserted it in her vagina. He then closed her mouth. She recalled that she felt pain in her vagina. Later on, the Appellant threw Kshs. 20/= that was collected by PW2’s brother L and left the scene.
16.PW1 was on that very day called by his neighbours and informed what had happened. The complainant was seen on 3rd December, 2020 by Clement Kibet, PW3, a Clinical officer working at Kapenguria County Referral Hospital. He was informed by PW2 that she was rescued by another minor.
17.PW3 observed that her clothes were normal. Her face had bruises and her neck had tenderness. The injuries sustained were 1-day old. They were caused by a blunt object. They were classified as harm. When observing her genitalia, PW3 found that it had no bruises or stains. PW3 found that there was an attempt to defile, but there was no proof of penetration.
18.He treated the patient. He then filled the P3 Form. He produced both the treatment notes and P3 form in evidence.
19.The Appellant was found by members of the public who threatened to lynch him. He was, however, rescued by police officers.
20.The investigating officer, PW4, No. 92386 Eunice Achieng, conducted investigations. When the complainant was presented at the Police Station, PW4 discovered that she had a fresh bruise on the cheek and neck. She recorded statements and collected evidence. She formed the opinion, and, charged the Appellant with the present offences.
21.After close of the prosecution’s case, the trial Court found that the Appellant had a case to answer and was placed on his defence.
22.His unsworn testimony was that he was accused of defilement, assaulted and taken to the Police Station. He suffered serious injuries occasioned from the assault. While denying that he committed the offences, the Appellant asked the trial Court for forgiveness and leniency.
23.On the basis of the above evidence, the Appellant was convicted as charged and sentenced accordingly.
24.This Court will now consider whether the offences were proved.Attempted Defilement:
25.The age of the complainant was properly settled in this matter by way of a Certificate of Birth No. xxxx. The complainant was born on 21st February, 2013. The production of the Certificate was not challenged.
26.As the offences were allegedly committed on 2nd December, 2020, then the complainant was then aged about 7 years and 10 months old.
27.Accordingly, the complainant was a child of tender age within the meaning ascribed to the term under Section 2 of the Children’s Act.
28.Was the Appellant positively identified?
29.The prosecution relied on the evidence of PW2 as the sole identifying witness.
30.By dint of the proviso to Section 124 of the Evidence Act, Cap. 80 of the Laws of Kenya, such evidence is admissible without any corroboration as long as the Court is satisfied that the victim is telling the truth.
31.In the present case, the complainant gave an evocative account on what transpired on that day. She was not hesitant. She narrated that the Appellant found her with a child in a field on that fateful day. He then grabbed her, removed her clothes, removed his penis and inserted it in her vagina. He then threw a Kshs. 20/= as if to buy her silence.
32.Looking at the evidence in totality, this Court finds no reason to depart from the finding of the trial Court that the complainant was deliberate in telling the truth.
33.It is, therefore, the finding of this Court that the Appellant was properly identified as the culprit.
- Was there an attempt to defile?
34.Section 388 of the Penal Code defines “attempt” as follows: -
35.The above section brings out the two main ingredients of an attempted offence; the mens rea which constitutes the intention and the actus reus which constitutes the overt act towards the execution of the intention.
36.In R vs. Whybrow (1951) 35 CR App. Rep, 141, Lord Goddard C.J., had the following to say on mens rea when the Court dealt with the offence of attempted murder: -
37.Eminent learned authors in criminal law, J. C. Smith and Brian Hogan in their book Criminal Law, Butterworths, 1998 (6th Edition) at page 288 while discussing the aspect of mens rea in an attempted murder had this to say: -.... Nothing less than an intention to kill will do.
38.And in Cheruiyot v Republic (1976 - 1985) EA 47 Madan, JA, as he then was, while approving the holding in R v. Gwempazi s/o Mukhonzo (1943) 10 EACA 101, R v. Luseru Wandera (1948) EACA 105 and Mustafa Daga s/o Andu vs. R (1950) EACA 140, stated as follows on mens rea in an attempted murder charge: -
39.The Court of Appeal had yet another occasion to look at the aspect of the actus reus in attempted offences. In Abdi Ali Bare vs. Republic (2015) eKLR, Learned Honourable Justices Githinji, Mwilu and M'Inoti, had the following to say as they considered the offence of attempted murder: -
40.From the foregoing, it is easily deducible that when a Court is faced with any charge of an attempted nature, care must be taken to ensure that the attempt, as opposed to mere acts of preparation, is proved. Regardless of how strong the evidence is, if it only relates to acts in preparation to commit a certain crime, that evidence cannot justify a conviction on an attempted charge.
41.For clarity purposes, evidence must be led which goes beyond the preparatory stages and right to the doorstep of possible commission of the offence. It ought to be demonstrated that the accused had committed the last act to the actual commission of the specific offence attempted.
42.With the above exposition of the applicable legal principles in relation to commission of attempted offences, this Court will now apply the said principles to this case.
43.According to the complainant, the Appellant removed his penis, wore a condom and inserted it into her vagina. She felt pain. PW3 a Clinical officer observed the complainant’s genitalia and established that there was no penetration but there were bruises on the vulva.
44.Therefore, the evidence of the complainant and PW3 were at variance. The complainant poised that there was penetration whereas PW3 hinted that there was no such penetration. As such, to be able to deal with this aspect appropriately, there is need to ascertain whether there was penetration in law.
45.Section 2(1) of the Sexual Offences Act defines “penetration” to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
46.This position was fortified in Mark Oiruri Mose vs R (2013) eKLR when the Court of Appeal stated thus: -
47.Later, the Court of Appeal, then differently constituted, in Erick Onyango Ondeng v. Republic (2014) eKLR held as such on the aspect of penetration: -
48.From the definition of penetration and the guidance by the Court of Appeal, it is the position that penetration may only be ‘slightest and to the surface’ to suffice in law. It, therefore, means that there may be instances where the slight penetration, depending on other factors including passage of time, may not be possible to be ascertained by way of medical evidence. Therefore, the failure to prove penetration by medical evidence does not ipsa facto mean that there was no penetration. It all depends on the peculiar circumstances of a case and the extent to which the trial Court believes the victim. However, in such instances, the Court must exercise extreme caution as to weed out miscarriage of justice including instances where a victim is framed up for ulterior motives.
49.This Court has, with care and caution, reviewed the evidence on record. To this Court, penetration was proved. There is evidence that indeed the Appellant’s penis got into contact with and indeed cause bruises on the complainant’s vaginal vulva. That is penetration in law.
50.The Appellant was, hence, charged with a lesser offence whereas there was ample evidence that the Appellant had committed the offence of defilement.
51.Be that as it may, since the Appellant was not charged with the offence of defilement, which is obviously a more serious offence than the attempt, an appellate Court cannot find the appellant guilty of such a more serious offence. However, the converse is always the correct legal position.
52.To find an Appellant guilty of a more serious offence on appeal where the prosecution did not give notice of intention to seek such a finding, is tantamount to a flagrant breach of the constitutional right to a fair trial as enshrined in Article 50 of the Constitution.
53.In this case, therefore, this Court will not disturb the conviction on the attempted defilement. The Court finds that the Appellant was correctly convicted.
54.From the record, it appears that the injuries on the face were inflicted during the ordeal that led to the defilement.
55.In such instances, there is really no need of finding the Appellant guilty of attempted defilement and assault at the same time. The assault was part of the acts of preparation that led to the eventual commission of the offence. Therefore, the conviction on the offence of assault and the sentence cannot stand.
56.Before I come to the end of this issue, I will address the issue of sentence. The Appellant was sentenced to 15 years’ imprisonment on attempted defilement. The Court did not call for a Pre-sentence Report.
57.It is imperative for parties to know that sentencing is a crucial part in the criminal process and the administration of justice and since sentencing Courts are called upon to exercise discretion, then parties are at liberty to even adduce evidence that may aid Courts reach most appropriate sentences (See the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic  eKLR).
58.In exercising its discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic  eKLR.
59.This Court is well abreast of the principles on sentencing and the 2016 Judiciary of Kenya Sentencing Policy Guidelines. As stated by the Supreme Court of Kenya in Francis Karioko Muruatetu & another case (supra), despite their importance, the guidelines do not replace judicial discretion. This is what the Apex Court stated: -
60.The purpose of sentencing is expounded in page 15, paragraph 4.1 of the Sentencing Policy Guidelines as follows: -Sentences are imposed to meet the following objectives:1.Retribution: To punish the offender for his/her criminal conduct in a just manner.2.Deterrence: To deter the offender from committing a similar offence subsequently as well as to discourage other people from committing similar offences.3.Rehabilitation: To enable the offender reform from his criminal disposition and become a law-abiding person.4.Restorative justice: To address the needs arising from the criminal conduct such as loss and damages. Criminal conduct ordinarily occasions victims’, communities’ and offenders’ needs and justice demand that these are met. Further, to promote a sense of responsibility through the offender’s contribution towards meeting the victims’ needs.5.Community protection: To protect the community by incapacitating the offender.6.Denunciation: To communicate the community’s condemnation of the criminal conduct.
61.In sentencing, the Court considers various mitigating factors. Some include: -(a)age of the offender;(b)being a first offender;(c)whether the offender pleaded guilty;(d)character and record of the offender;(e)commission of the offence in response to gender-based violence;(f)remorsefulness of the offender;(g)the possibility of reform and social re-adaptation of the offender;(h)any other factor that the Court considers relevant.
62.In this matter, the Court would have greatly benefitted from a Pre-sentence Report. Be that as it may, the sentence of 15 years’ imprisonment for a conviction of attempted defilement seems to be too harsh. Respectfully, this Court will interfere with the sentence and is hereby set-aside.
63.By considering the nature of the offence and the circumstances herein, this Court sentences the Appellant to a prison term of 10 years.