JUDGMENT OF THE COURT
Daniel Nyareru Achoki , the appellant, was charged and tried on one main count of attempted rape contrary to Section 141 as read with section 388 (1) and an alternative count of indecent assault on a female contrary to Section 1 44 (1) both under the Penal Code. In actual fact, the correct charge should have been under Section 141 by itself, but if an additional section was felt to be necessary, it should have been under Section 389 , not 388 (1) of the Penal Code . At the end of trial, the Senior Resident Magistrate at Kisii found the appellant guilty on the charge of attempted rape, convicted him thereon and sentenced the appellant to life imprisonment with hard labour and three strokes of the cane. Having thus convicted the appellant on the main charge of attempted rape, the learned trial magistrate correctly made no findings on the alternative charge of indecent assault.
The appellant appealed to the superior court at Kisii, (Waweru, J.), who after hearing the …