[2022] KEHC 16568 (KLR)

Ogodo v Republic (Criminal Appeal E033 of 2021) [2022] KEHC 16568 (KLR) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16568 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E033 of 2021

AN Ongeri, J

December 16, 2022

Between

Vincent Oluoch Ogodo

Appellant

and

Republic

Respondent

((Being an appeal against the conviction and sentence of Hon. E.W. Karani(RM) in Kericho Cr. Case No. 1 of 2019 delivered on 10/3/2020))

Judgment

1. The appellant was sentenced to 15 years imprisonment for the offence of attempted rape contrary to section 4 of the sexual Offences Act No 3 of 2006.

2. The evidence by the prosecution in summary was that on 2/1/2019 at about 0300 hours in Kaplelartet the Appellant attempted to rape the complainant at Makuti Incus Bar in Sondu Township.

3. The complainant who testified as PW1 said she went to the toilet at the material time to answer a call of nature.

4. While at the toilet, the complainant who was working at the bar as an attendant said that the Appellant forced his way into the women toilet and attempted to rape her.

5. She said the Appellant who had a knife attempted to strangle her and he injured her on the neck, face and left side of the cheek.

6. The complainant managed to escape and the Appellant was arrested and taken to the police station and charged.

7. PW3 Hillary Cheruiyot a medical officer at Sigowet Sub-County hospital examined the complainant. He said she had injuries on the neck due to strangulation. She also had injuries on her thighs and bruises on her upper limbs and on the neck.

8. The Appellant said in his defence that he was at Makuti bar and he went to the toilet and as he left the toilet, he found a crowd of people who arrested him. He said there was a watchman who had a knife with which he tried to stab him. He was tied with ropes and taken to the police station.

9. The trial court found him guilty and convicted him with the offence of attempted rape and sentenced him to 15 years imprisonment.

10. The Appellant has appealed to this court on the following grounds: -i.That he pleaded not guilty and he still maintains the same;ii.That it was unlawful for the trial magistrate to violate the appellant’s fundamental rights and further denied the appellant fair trial;iii.That the learned trial magistrate failed to consider that the prosecution did not demonstrate that the complainant’s clothes were torn or in any way there was a struggle between the complainant and the appellant;iv.That the learned trial magistrate erred gravely by not allowing the DNA test to be conducted on the appellant;v.That the trial court erred in dismissing the appellant’s defence.

11. Both parties filed written submissions as follows: -The appellant submitted that the evidence from the prosecution was full of contradictions, especially the evidence by PW1 and also that although the crucial eye witnesses claim that they witnessed the whole event, arrested the appellant and took him to the police station, they did not record statements.

12. The appellant submitted that the act of attempted rape attracts a punishment of not less than 5 years imprisonment, but the decision by the trial court was harsh and thus the trial court failed to exercise discretion as the evidence in this matter was not watertight.

13. The appellant submitted that the trial court failed to consider his defence despite the fact that it was strong; and further that the court should disregard the evidence from the prosecution side since it has a lot of loopholes and it cannot sustain the conviction.

14. The respondent on the other and submitted that the appellant has not demonstrated how his fundamental rights and fair trial have been breached by the trial court, and that his trial was fair and none of his fundamental rights were breached.

15. The respondent submitted that although the complainant’s torn clothes were not produced as exhibits, this did not affect the credibility of the respondent’s case in that PW1’s testimony was corroborated by PW2 who saw and locked the appellant in the toilet pending his arrest, as well as PW3 who filled the P3 form and treated PW1.

16. The respondent submitted that DNA test on the appellant was unnecessary as it would be of no probative value to the respondent’s case, and further that the trial court considered the defence by the appellant which was unsworn and found it to be mere denial and incredible in light of the water tight case by the respondent.

17. This being a first appeal the duty of the court is to re-evaluate the evidence adduced before the trial court and to arrive at my own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the advantage of seeing the witnesses.

18. The issues for determination in the appeal were as follows;i.Whether the prosecution proved its case to the required standard.ii.Whether the trial court took into account the defence of the Appellant.

19. On the issue as to whether the prosecution proved the guilt of the appellant to the required standard, the ingredients of the offence of attempted rape are as follows: Section 4 of the Sexual Offences Act, defines attempted rape as“Any person who attempts to unlawfully and intentionally commit an act which causes penetration with his or her genital organs is guilty of the offence of attempted rape and is liable upon conviction for imprisonment for a term which shall not be less than five years but which may be enhanced to imprisonment for life.”

20. The high court in Abraham Otieno v Republic [2011] eKLR, defined the ingredients of attempted rape as follows: -“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.”

21. In Moses Kabue Karuoya v Republic [2016] eKLR, Mativo, J (as he then was), stated as follows regarding the ingredients of attempted rape:“…I reiterate that the key ingredients of the offence before me can be summarized as follows, namely, (a) Intend to commit the offence; From the evidence tendered, I find that intent was established. The second requirement is (b) the accused must begin to put his intention to commit the offence into execution by means which are adapted to its fulfilment. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve. Evidence tendered is that the appellant knocked her down, lied on her, lowered her panty & forcefully opened her legs. Lastly the accused must (c) Do some overt act which manifests his intention; that is, the accused performs an act which is capable of being observed by another (although it may not have been) and which in itself makes clear his intention to commit the offence.”

22. I find that there is evidence that the appellant attempted to rape the complainant.

23. On the issue as to whether the defence evidence was taken into account, the record is clear on page 28 that the same was considered in detail.

24. I find that the offence of rape is prevalent and a deterrent sentence deserved.

25. I accordingly find that the conviction herein is secure and the sentence lawful.

26. I dismiss the appeal and uphold the conviction and sentence.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 16TH DAY OF DECEMBER, 2022. AN ONGERIJUDGE