Gamaiyo s/o Melau v. R., Crim. App. 36-A-68, 19/4/68, Platt J.

Gamaiyo s/o Melau v. R., Crim. App. 36-A-68, 19/4/68, Platt J.

Accused was convicted of attempted rape. There was evidence that accused threw complainant to the ground, threatened her with a knife, and tore off her underpants, She then caught hold of his private parts and prevented him from unbuttoning his pants. At this point an alarm was raised and accused ran away.

            Held: [Quoting from Adamu s/o Mulira v. R., (1953) 20 E.A.C.A. 223]: “(T)o constitute an attempt to rape there must be evidence of an attempt to have sexual connection with the woman not with standing her resistance … (I)n the instant case, we feel some doubt whether the learned trial judge fully appreciated the necessity of finding an intention to have intercourse at all costs not with standing any resistance on the part of the woman, plus an attempt to put this intention into effect.” Under this test accused ‘s actions did not constitute attempted rape. Conviction of indecent assault [P. C. s. 135] substituted.