Godfrey Ochieng Oduor v Republic

3. PW2, TK, was a minor son of PW1, and a younger brother of the complainant; while PW3, LK, was a minor daughter of PW1, and a younger sister of the complainant. They were the ones who had reported to PW1, about the incident. They explained that they and the complainant lived with their grandmother, while their father, PW1, lived elsewhere, in another home, with another family. On the material day, the appellant arrived, and insisted on sleeping in their house. They let him do so, and switched off the lights. They later heard sounds from the complainant, which they interpreted to mean that she was in distress. They switched on the light, whereupon the found the appellant sleeping next to the complainant, having removed his trousers and underwear, and pulled the clothing of the complainant above her waist. They confronted him, asking why he wanted to defile the complainant, but he denied it. They chased him out. He said he had left behind his underwear, on the complainant’s mattress, and they handed the underwear over to him over a window. He tried the same shenanigans on another date. 4. PW4, Edwin Imoo, was a clinician. He attended to the complainant on 23rd August 2024, who came escorted by PW1. There was a history of having been sexually molested on 14th August 2024. The examination revealed that there were no bruises or tears on the labia, and the hymen was intact. The area around the hymen was hyperaemic, and there was a cream-like discharge on the labia minora. He concluded that there was attempted vaginal penetration, hence a diagnosis of attempted defilement. He stated that no penetration occurred. The complainant was put on antibiotics. 5. PW5, No. xxxxxx Police Corporal Peris Kurui, was the investigating officer. She detailed the steps that were taken in the course of the investigations. 6. It was ruled, on 19th February 2025, that a prima facie case had been made out, and the appellant was put on his defence. He gave a sworn statement, on 23rd April 2025. He denied the charge. 7. He was convicted, on 28th May 2025, of attempted defilement, and was sentenced to serve 20 years imprisonment, on 11th June 2025. 8. The appellant was aggrieved, hence the appeal. The grounds revolve around the court violating his fair trial rights, as set out in Articles 25(c) and 50(2) of the Constitution; the medical evidence not linking him to the offence; the circumstances prevailing on the date of the alleged offence not conducing to proper identification; the investigations being shoddy; the alibi defence not being considered; and there being contradictions in the evidence. 9. The appellant has canvassed the appeal by written submissions, that he has lodged in the record. The respondent did not file submissions. I have read through the written submissions, by the appellant, and noted the arguments made. 10. I will start with discussing the elements of the offence. An attempted offence is an inchoate or incomplete offence. It is about the accused setting out to commit an offence, but falling short of committing it in full, by stopping before the complete offence is committed. The failure or omission to complete commission of the intended offence could be on account of being interrupted, or losing the nerve to complete the full commission, or upon facing fierce resistance from the complainant. For there to be a criminally actionable attempt, the accused must have commenced or initiated the process towards commission of the offence. There is more to attempt than mere preparation, for the steps taken, towards commission of the intended offence, must be close to execution or proximate to actual commission. 11. The principal elements for attempted defilement are the same as those for defilement, save for the penetration. It must be established that the complainant was a minor at the material time, the assailant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4645/eng@2026-04-10 2

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must be positively identified, and the steps taken towards fulfilment or completion of the intended defilement must be proved. 12. I will start with the minor complainant. The charge identified her as MMK, whose age was put at 14 years, at the material time of the commission of the offence, on 18th August 2024. MMK did not testify in person, for she was dumb, and mentally challenged. Her father, PW1, acted as her intermediary. He said that she was 13, having been born on 30th May 2010. He produced her certificate of birth, serial number BO 373020. According to that document, she was born on 30th May 2010. The offence was allegedly committed on 18th August 2024. On 18th August 2024, she was exactly 14 years, 2 months and 19 days old. She was, therefore, still 14 years old, and a minor, and the offence of attempted defilement could be committed against her. 13. With regard to attempted penetration of her gentalia, by that of the perpetrator, the medical forensics are crucial. The treatment notes indicated that the hymen area was hyperaemic, a medical term meaning reddened, due to increased blood flow. It was also indicated that there was a creamlike discharge on the labia minora. The diagnosis made was that there had been an attempt to defile the patient. In the P3 form, it was noted that the posterior rim of the vagina was reddened, but there was no vaginal penetration. 14. The narratives, from PW2 and PW3, and the supporting documentary or forensic evidence, clearly established that there was an attempt to penetrate the vagina of the complainant, hence proof of the second element of the offence of attempted defilement. The critical evidence was that the area around the hymen or rim of the vagina was reddened, meaning that it had been touched, or pressure had been put on it. That pressure must have come from the events that were described by PW2 and PW3. 15. The last element of defilement is the identity of the perpetrator. The charge alleged that that perpetrator was the appellant herein. That it was him who attempted to penetrate the vagina of the minor MMK, with his penis. 16. PW1, in her testimony, described the appellant as a neighbour, who lived next to a slaughterhouse, in their neighbourhood. PW2 and PW3 said that the appellant was a person who had made a habit of visiting them in the evening, and they used to see him in the neighbourhood. He had at one time offered them sugarcane. He was a person the children were familiar with. On the material day, he came to their house in the evening. He sat at their house, and pretended to fall asleep, on a seat. There was a light, for the children talked of switching them off and on. When they heard noise or a sound from the complainant, indicating that she was in distress, PW2 switched on that light, so that he could attend to her, and that was when he saw the appellant and the complainant were both half-naked. The conditions were conducive to positive identification. The perpetrator of the attempted defilement was positively identified, and it was the appellant. 17. Were the constitutional fair trial rights observed by the trial court? I note, from the trial record, that the appellant was arraigned in court on 5th November 2024. The trial court was using the 2 national languages, English and Kiswahili. After the charge was read to him, he responded in Kiswahili, suggesting that that was the language that he was familiar with. I have seen a record of his profile or bio, in the pre-bail report dated 14th November 2024 and the pre-sentence report dated 11th June 2025. He went to school, and received an education, for 8 years, and held a KCPE certificate, which he sat for in 2000. Judicial notice could be taken of the fact that Kiswahili was, and still is, a compulsory subject in primary school. His 8 years of schooling must have equipped him with a working knowledge of and proficiency in Kiswahili, adequate to enable him handle situations, such as the trial that he faced herein. I am not persuaded that there was any need for an interpretation for the benefit of the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4645/eng@2026-04-10 3

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18. On the date of the arraignment, 5th November 2024, he was supplied with the evidence, in advance of the actual trial, being copies of the charge sheet, 5 witness statements, P3 form and the treatment notes. There was no trial by ambush. He had the evidence before the oral hearing on 8th January 2025. That gave him adequate time, of 2 months, to study the documentary evidence, in preparation for the hearings. 19. I note that on the same date, 5th November 2024, he asked to be admitted to bond/bail. The trial court directed that a pre-bail report be filed within 14 days. A report was filed, dated 14th November 2024. The court considered it, and found that it did not favour him, for it gave the impression that he was a flight risk, and bond/bail was denied, at that stage. That left the door open for consideration of renewal of the bail application. The appellant renewed his bail application, on 19th February 2025, and he was admitted to a bond of Kshs. 100,000.00, with a surety. That was done after the civilian witnesses had testified. The trial court did address his constitutional right to be admitted to bond. The issue of violation, with respect to that, cannot arise. 20. The other constitutional issue, that was addressed at arraignment, on 5th November 2024, was about legal representation. The Constitution tasks the trial court with informing an accused person of that right, so that he can consider engaging an Advocate of his own choice, and if he is unable to instruct one, on grounds of financial distress, to apply to have one assigned to him, to be paid for by the State. The trial record reflects that the appellant herein was reminded, by the trial court, of those constitutional rights, to legal representation. 21. I am satisfied, from the material that I have discussed above, that the trial court observed the constitutional fair trial principles, and went out of its way to comply with what was required of it by the Constitution, with respect to them. 22. On the matter of the medical evidence not linking the appellant to the offence, I agree, the medical forensics were done on the complainant, and no deoxyribonucleic acid, DNA, material was collected from her, which connected the appellant to the attempted defilement. However, it is trite that proof of defilement and rape, and of attempts to commit those offences, is not dependent solely on medical forensics. Absence of such forensics is not fatal to the case. Defilement can be established from other evidence, including that of the complainant and the other witnesses. As discussed above, the testimonies of PW1, PW2 and PW3, and the medical evidence presented by PW4, established all the key elements of the offence charged. The medical forensics might not have yielded any material which directly connected the appellant to the offence, but it was adequate to establish that there was an attempted defilement. Whether the appellant was privy to it, could be, and was, established from the testimonies of PW2 and PW3. 23. On whether the investigations were shoddy, I would start by asking the question, what does an investigation entail? Does it not involve reaching out to witnesses, being the persons privy to information about the matter, and recording statements from them; going out of the way to obtain relevant documentation, such as certificates of birth, and medical records? 24. A report was made to the police, by the father of the complainant, that was PW1. Witness statements were recorded from him, that is PW1, and the other principal witnesses, PW2 and PW3. Documents were collected or gathered, to support the case, being a certificate of birth and the medical documentation. All that was demonstration of investigation. In any event, the issue before the court was not about whether the investigations, into the matter, were properly done or were adequate, but rather whether there was evidence, presented to the court, upon which the court could convict. There was such evidence, from what I have discussed above. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4645/eng@2026-04-10 4

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25. Were there contradictions in the evidence? I have gone through the evidence, and noted minor inconsistencies in the narratives from the witnesses. That is to be expected. It would be unusual to have the witnesses render narratives of the same events which are word for word a replica of each other. The witnesses were of different ages and had different levels of maturity, and their capacities and abilities to recollect and narrate the events could differ. At the time the events unfolded, the witnesses did not anticipate that they would end up in court, giving evidence, and, therefore, there was no time for them to be careful to observe and taken in every detail. Even if that were so, each individual would still have perceived the events in their own way, and, when time came for them to make a rendition, the perspectives ought not to be expected to be replicated in exact terms. Contradictions and inconsistencies are material, if they go to the core of the matter, or where there is demonstration that the witnesses were being deliberately untruthful. I have not come across any that go to the core, or an incidence where any of the witnesses were being deliberately untruthful. 26. It is trite that contradictions and inconsistences would be material if they go to the core, and the core here was about whether PW1 was a minor, whether there was an attempt to penetrate her vagina, and whether the attempted penetration was by the appellant. The inconsistencies, pointed out by the appellant, had nothing to do with these core issues. Secondly, the same would matter where there was evidence that the witness, to whom the contradiction or consistency is attributed, was being deliberately untruthful. I am not persuaded that it has been demonstrated, by the appellant, that either of the witnesses was being deliberately untruthful. 27. The last issue is about the alibi defence of the appellant not being considered. An alibi defence is one where the accused pleads that he was not at the scene where the alleged offence was committed, but at another location, way away or far from the scene of the crime. The argument would be that he would not have committed the offence charged, as he would not have been at the place or location where it allegedly happened. 28. The appellant gave his sworn defence statement on 23rd April 2025. He talked about when the complainant came to live in their village, and generally about her family. He made reference to a fight which involved the father of the complainant, and other family members, and how he, the appellant, was implicated in an alleged assault on the father of the complainant. He said that that matter was settled. He then went on to say that it was after that settlement that the issue of the attempted defilement of the complainant was raised. He then denied committing the act. 29. In that defence statement, the appellant did not advert to the events of 18th August 2024. He did not state where he was on that day. He did not allege that he was at another location, far from Nangosia Location, on 18th August 2024. He did not raise an alibi defence. There was no alibi defence, therefore, for the trial court to consider or take into account. 30. Overall, I have not found merit, in the appeal herein. I, accordingly, dismiss the same. I affirm the conviction. Orders accordingly. DELIVERED, VIA MICROSOFT TEAMS, DATED AND SIGNED AT MILIMANI, NAIROBI, ON THIS 10TH DAY OF APRIL 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Mr. Godfrey Ochieng Oduor, the appellant, in person. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4645/eng@2026-04-10 5

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Mr. Onanda, instructed by the Director of Public Prosecutions, for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4645/eng@2026-04-10 6

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