IN THE HIGH COURT OF KENYA

AT KISII

CRIMINAL APPEAL NO. 53 OF 2009

-VERSUS-

JUDGMENT

(Being an appeal from the original Conviction and Sentence of the Senior Principal Magistrate’s Court

at Migori Hon. Ezra O. Awino in Criminal Case No. 340 of 2008 delivered on 6^th March, 2009)

The two entered a plea of not guilty and they were tried for the offence. In brief the prosecution case was that the complainant, E.A. (PW1) was on 20^th July, 2008 at 8.00p.m in the hotel where she worked and stayed. The appellant, co-accused in the company of other two people whom she did not know came to the hotel. She knew the appellant and the co-accused though. Though the door to the hotel was closed, the appellant, co-accused and those two other people forced it open and entered. They caught hold of her and pulled her towards the door intending to rape her outside in the bush. She screamed and people who heard her screams came to her rescue and arrested the two while the other two made good their escape. She had lights on in the house and besides her, there were two other girls in the room, Q., H. and some other children.

Surprisingly, the learned magistrate on that scant and incredible evidence found for the prosecution on a case to answer and put the appellant and the co-accused on their defence. I cannot fathom how on such evidence, the learned magistrate could have reached such decision. Be that as it may, the appellant in his unsworn statement stated that he was arrested and taken to bond and thence to Migori where he was charged and ordered to keep peace. Then later he was charged with the instant offence. He wanted the court to make inquiries into the matter. He was so arrested by the chairman of the shopping centre.

There is no doubt at all that any right thinking person, leave alone the appellant would have been disgusted by such conviction and sentence as it had no basis at all in law and fact. If anything it was a total miscarriage of justice. One is left wondering whether truly the learned magistrate was alive to the tenets of law and the oath of his office when he convicted the appellant as aforesaid. Or did he do so upon extraneous considerations. Was he the grand master who was approached by external forces in order that he may invoke our criminal justice system unfairly to settle scores. From what is on record I have no doubt at all in my mind that the learned magistrate had no conviction at all in the judgment he crafted and eventually delivered as aforesaid. He must have been dancing to the tune of external forces. The magistrate was a senior judicial officer, of the rank of Ag Senior Principal Magistrate. There can be no justification for such scrappy and injudicious decision.

“1. The learned trial magistrate erred in law and fact in failing to find that the prosecution had not proved its case beyond any reasonable doubt as required by the law in respect of the evidence on record.

3. The learned trial magistrate erred in law and fact in convicting the appellant against uncorroborated evidence of a single witness in the name of the complainant.

5. The learned trial magistrate erred in law and fact in failing to consider the fact that the appellant had been earlier made to bond to keep peace for lack of evidence.

When the appeal came up for hearing, counsel for the appellant failed to turn up. As he did not wish to have the appeal adjourned, the appellant opted to prosecute the same in person, the absence of his counsel notwithstanding. He made a wise decision for when Mr. Gitonga, learned state counsel, rose to address the court, he conceded to the appeal. He submitted that the ingredients for the offence of attempted rape had not been proved by the prosecution as set out under section 4 of Sexual Offences Act. As such the conviction was illegal.

It must be clear from what I have so far in this judgment that the learned state counsel was right in conceding to the appeal. The appellant was charged under section 4 of the Sexual Offences Act. That section provides interlia:-

For an offence of attempted rape to be deemed to have been committed under the section, the prosecution must prove that the culprit acted in such manner that there was no doubt at all as to what his intention was. The intention must be to rape. It must be shown that he was about to rape the victim but was stopped in tracks and or in the nick of time. The intention to rape must be manifest. Such intention can be manifested for instance by word of mouth or conduct of the culprit. If the culprit proclaims his intention to rape and directs his efforts towards that goal for instance, by holding the victim or pushing her to the ground, undressing her, removing her pants if at all and also unleashing his male genital organ in preparation thereof but does not go the whole hog because of factus interveniens, that would be good evidence of attempted rape. Alternatively, if the culprit without expressing his intentions verbally gets hold of the victim, fondles her, removes her clothes including her pants and also undresses himself in preparation thereof but for one reason or another something happens which compels him stop, again that would be good evidence of attempted rape.

The appellant advanced a solid and plausible defence. On the evidence on record and the casual manner the prosecution handled the case, there can be no doubt at all that this case was framed against the appellant for reasons which are not quite apparent on record. The appellant alluded, to being arrested by the chairman of the shopping centre and was bonded to keep peace. Is it possible that this case was a perpetuation of the previous misunderstanding between the two?

Judgment dated, signed and delivered at Kisii this 30^th day of May, 2011.

ASIKE-MAKHANDIA

JUDGE