The Appellant Ali Owiti Okumu was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006.
The particulars of the offence are that on the nights of 19th and 20th June 2021 at unknown hours at Silanga village, Arambe Sub-Location, East Kanyamkago Location, Uriri Sub-County in Migori County within Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of E. A. O. a child aged 12 years who was to his knowledge his daughter.
In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars are that on the nights of 19th and 20th June 2021 at unknown hours at Silanga village, Arambe Sub-Location, East Kanyamkago Location, Uriri Sub-County in Migori County within Republic of Kenya intentionally and unlawfully caused contact with his hands, penis to the breast and vagina of E. A. O. a child aged 12 years who was to his knowledge his daughter.
Upon consideration of the evidence of 5 prosecution witnesses and the unsworn testimony of the accused person the Trial Magistrate found the prosecution had proved the charge of incest beyond all reasonable doubt and the accused person was found guilty and was convicted accordingly.
The Appellant was aggrieved by the whole judgement and lodged his undated Petition of Appeal on 11th October, 2022 on the following grounds:
1. That he pleaded not guilty to the charge herein
2. That the Trial Magistrate erred in both law and facts by not complying with Article 50(2)(g) & (h) of the Constitution 2010
3. That the Trial Court erred in both law and facts by not observing that the ingredients of the offence herein were not proved as required in law.
Reasons wherefore the Appellant prayed that conviction be quashed and sentence set aside and that leave be granted for him to file supplementary / amended grounds of appeal after receiving the lower court proceedings.
PW1 the minor was examined voire dire to establish her level of intelligence and whether she understood the meaning of an oath and the Trial Magistrate found she could take oath.
In her testimony under oath PW1 said that the Appellant was her biological father and she identified him in the dock. PW1 said they are 9 children in total and that at home she sleeps with the other children in the kitchen while her parents sleep in the main house. PW1 recalled that on 19/06/2021 she was unwell and at 7:00pm, her father went to drink alcohol. That the father asked her to go and sleep in the main house. She said her mother had gone to a funeral at their maternal grandmother's home. That she had left home for the funeral on 16/06/2021. There were other siblings at home. She said she was the only one who went to sleep in the main house leaving others sleeping in the kitchen.
PW1 said that when her father returned from drinking at 8pm she opened the door for him and when she tried to serve him food, he asked her to go back to sleep. That she went to sleep in a bed in a separate room from her parents’ bedroom. The house had 3 rooms her parents’ bedroom, the bedroom where she was sleeping and the living room. That when she went to the bed where she had been sleeping, the accused went to where she was and said he wanted to give her medicine but she did not see the medicine. The accused then asked her to hold him after he went and lay on the same bed where she was. That she declined to hold him and she fell asleep as he was still on her bed. He appeared drunk and was still on his clothes. PW1 said she had a skirt, blouse and under pant. That she was woken up by pain in her vagina and she found her father was lying behind me without his trouser. That she found her pant had been removed and the skirt pushed to the upper part of her back. She said her father had inserted his penis into her private parts through the back. Later that night at around 4am her father went to his bedroom. That her elder brother who is in form 2 heard me crying after he woke up at 4am and when he asked aloud why she was crying, her father respondent that she was having night mares. PW1 said that her brother walked into the main house as the door was not locked. She said that the father did bad things to her 3 times. That when she cried, he could stop and he slept. That he again inserted his ‘thing’ I mean his penis into her vagina and she cried. That he again stopped and later did it again.
That in the morning his brother left for school where he is a boarder as he had been sent home for school fees. She said her father told her not to tell anybody what had happened and he promised to give her Kshs. 50/=.
PW1 said she told her brothers Francis Okumu and Joshua Owino who were in Class 7 and 6 respectively3q. That when her mother returned from the funeral after a few days she told her what had happened and the next morning and she escorted her to hospital. PW1 said she was treated at Oyani hospital and later escorted to Oyani Police Post and a report was booked. That at the hospital, she was given drugs. She identified the treatment notes, P3 and PRC forms as exhibits. PW1 said she was also taken for age assessment. She said it was the first time her father did the bad things to her.
The Appellant cross examined the Complainant and she said that she did not talk to her brother who was going to school it is the Appellant who responded that she was having night mares. She said she cried during the incident and one of her sisters in law (wife to her brother) asked why she had been crying at night and she told her what had happened.
She also said that initially the Appellant came and said he wanted to give her medicine and when she declined to take the medicine which she did not see the Appellant slept on her bed. She said she was woken up by pains in her vagina. She said she did not see blood on her clothes. She denied having harvested beans with her other siblings the morning after the incident.
PW1 also told the Appellant that when she told Owuor what happened, he did not tell her anything. She said that when her brother woke up at 4am and asked why she had been crying, it is the Appellant who responded that she had been having night mares. She admitted that she is epileptic and there is a drug she usually takes and she had already taken it by the time the Appellant returned that night. She said it is true that sometimes she cries when she hits her head after falling but she had not fallen down that night and she did not have an epileptic attack at night. PW1 said that normally, she sleeps in the main house only when she is sick and on the material night, she was sick.
In re-examination PW1 said that sometimes she can sense when she is about to have an epileptic attack. She said that on the 19/06/2021 she had an epileptic attack during the day but not at night. She said that when she does not have an epileptic attack, she can tell everything that happens to her. She said she had no reason to lie against her father (the accused).
PW-2 Meresa Akoth Owiti testified that she came from Harambee in Uriri Sub County. She said she was a farmer and that Ali Owiti Okumu was her husband and E. A. O. PW-1 was her daughter. She said the Complainant was born in March in the year 2009 was 12 years. PW2 said the Complainant goes to school but she was epileptic. She said the accused was the father to the Complainant.
PW2 recalled that on 25/06/2021 she had come from attending a funeral of her mother. She said she left her home on 16/06/2021 and came back on 25/06/2021. She said she had let her children and the accused at my home. That immediately she arrived on 25/06/2021 the Complainant told her that her father had asked her to sleep in their main house in a bed reserved for our last born. That when the father later arrived home from a drinking spree, he went to the bed where she was and defiled her.
As it was late on 25/06/2021 when the Complainant Esther told her about the incident, on 26/06/2021. She escorted her Oyani Hospital where she was examined by a medic who told her that the Complainant had indeed been defiled. She was referred to the police. That before going to the hospital, she examined the Complainant and found her genitalia reddish and looking bruised. A P3 form was issued at Uriri Police Station, statements were recorded and the accused was arrested. The accused drinks alcohol but she had never heard him being accused of defilement or rape before.
PW2 said she had no problems with the accused before the incident giving rise to this case. She said she still stays at their home. She said she did not ask her husband about the incident after the Complainant briefed her as she knew him to be hostile and easily aroused to anger and would have killed her and the Complainant if she were to ask him. She said the Complainant had never been issued with a birth certificate but she know that she was examined to determine her age and a report prepared- Ex P4
In cross examination PW2 said that she did not ask the Appellant about what the Complainant told her. She said she feared that the Appellant could have been hostile to her and the Complainant. PW2 said that the Complainant usually sleeps in the kitchen unless when she is unwell in which case she sleeps in their main house. She said the Appellant called her on 20/06/2021 after the incident to tell her that the Complainant had had an epileptic attack. She said that it is true that the Complainant takes epileptic drug once after a meal but the drug is not taken late at night. She said the Complainant was examined by a medic who concluded that she was defiled.
She said when she arrived on 25/06/2021 she found she had difficulty walking and on inquiry she opened up to her. She said that it is true that they are HIV positive, but the HIV test on the Complainant was negative. That the medic advised that she be tested later as there is what is called a window period. She said it was less than 2 week since the Complainant was treated.
PW-3 Kennedy Otieno Ochieng the Clinical Officer based at Oyani Sub County hospital examined the Complainant on 26/06/2021. He said she came with a history of having been defiled and was escorted to the clinic by her mother. That it was alleged that she was defiled by a father on 19/06/2021.
That on examination of the Complainant’s genitalia her labia minora or majora had no bruises and lacerations but the hymen was broken. There was discharge. That HIV and UDRL tests were done but they were negative. There were no infections. P3 form was duly filled and he treated the patient. PW3 also filled Post Rape Care form.
PW3 said that he examined the victim 1 week after the alleged incident. He said if he had done the examination earlier, he would have probably seen the lacerations and the results would have been different. He said he did not conduct an age assessment on the minor.
In cross examination, PW3 said he had never met the Appellant before. He said he saw the Complainant on 26/06/2021 on allegations that she was defiled by her father. He said the discharge was whitish. He said he did not see any tears on the genitalia and the whitish discharge was not sperms. He also said he did not examine the Appellant.
In cross examination by the court PW3 said that the Complainant’s hymen was broken and a broken hymen can heal after one week.
PW-4 Mr. Joseph Otieno. a Dental Surgeon based at Migori Referral hospital produced the Complainant’s age assessment Report made by Dr. Dolsie Nyagilo who was his colleague dentist on 1st July 2021 and estimated the Complainant’s age as 12 years. He said that she went for further studies and cannot be availed without further delay.
PW-5 No. 83151 PC Jackson Miriti, from Uriri Police Station investigated the offence herein. He said the Complainant was taken to the station by the mother who reported that she had been defiled. That upon interrogation of the Complainant and her mother he established that she had been treated at Oyani Dispensary and a report made at Oyani Police Post. He said the girl mentined her father as the perpetrator
PW5 issued P3 which was duly filled and together with PRC form and treatment notes were produced as exhibits. That on 29/06/2021, he was briefed that the suspect Ali Owiti had been arrested. He identified the Appellant as the suspect who was arrested. PW5 also arranged for age assessment and established that she was 12 years. Later he picked the accused and escorted him to Uriri Police station where he was later charged.
In cross examination PW5 said that he investigated the case before the Appellant was arrested. He said they interrogated the victim and she recorded what had happened. The mother to the victim was away when the incident occurred. The victim had been accompanied by the mother to the police station. He said he was not present when the incident occurred but the victim named the Appellant as the culprit and he saw no reason why the victim would lie against you.
At the close of prosecution case the Appellant gave unsworn statement and said that he came from Oyani Masai in Uriri Sub County and he was a farmer. He said he understood the charge against him. He said that on 29/06/2021 at 7:45pm. 4 persons went to his gate where he was seated with his son and asked his son to talk to the strangers. That he heard them ask for him and his son directed them to him. The 4 strangers went to where he was and arrested him. That they refused to disclose reasons for the arrest. That the 4 people were in police uniform. He was escorted to Oyani Masai Police Post ad later escorted to Uriri police station at 9:30pm where he was locked in cells.
That on 30/06/2021 he was escorted to a small office at 8:00am where they asked me if a knew E. A. He told them that the Complainant was his daughter and that she was sickling. That he was asked about his wife Meresa Akinyi and he told them about differences with his wife over land and infidelity. That his finger prints were taken and on 01/07/2021 he was escorted to Court and the charges were read.He said he knew nothing about the charges.
The appeal herein was canvassed by way of written submissions.
The Appellant did not file any submissions.
The Respondent’s submissions are dated 4th December 2025 and are to the effect that the Trial Court informed the Appellant his rights under Article 50(2) (g) & (h) of the Constitution of Kenya during plea taking and the said rights were not infringed.
The Respondent cited the holding in Mokaya Vs Republic [2024] KEHC 4607 where W. A. Okwanyi J held:-
“In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant’s case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses. It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer any injustice due to lack of legal representation.”
On the ground whether the Trial Court erred in both law and fact by not observing that the ingredients of the offence had not been proved, the Respondent submitted that the offence of incest is rooted on three elements namely, that the Complainant is a relative within the prohibited degree of consanguinity, the second being penetration occurred and lastly age of the victim. It was submitted that all these ingredients were proved by the prosecution to the required standard.
It was submitted that in the case of B V Republic HCCRA No. 80 of 2017 Majanja J noted that the difference between defilement of a child under Section 8(1) and Section 20(1) is the relationship of the offender to the victim.
It was submitted that the Complainant testified that the Appellant was her biological father and PW2 the Complainant’s mother confirmed this fact. The Appellant also confirmed at the time of arrest and during his defence that the Complainant was his daughter.
On the 2nd element of penetration, it was submitted that the Complainant testified that the Appellant returned home while drunk and went to sleep on her bed and when she had fallen asleep, he defiled her and she was woken up by a sharp pain in her vagina only to find the Appellant had undressed her. The Complainant was examined by PW3 whose evidence corroborates the Complainant’s evidence that she was defiled. He confirmed that the minors’ hymen was broken and the minor said it is her father the Appellant who penetrated her vagina using his penis.
Further it was submitted that the Complainant’s age was assessed and it was established that she was 12 years old.
The Respondent Counsel therefore submitted in conclusion that the appeal lacks merit and should be dismissed.
Analysis and Determination
This being a first appeal, the duty of this Court is to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was well stated in Okeno v Republic.
Similarly the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the record of appeal, the grounds of appeal and the submissions filed by the Respondent Counsel, the issues arising for determination are:-
1. Whether the Appellant’s rights under Article 50(2)(g) and (h) of the Constitution were violated;
2. Whether the offence of incest was proved beyond reasonable doubt;
3. Whether the conviction was safe.
On the first issue, the record shows that during plea taking the Appellant was informed of the charge and participated fully throughout the proceedings. He cross-examined all prosecution witnesses at length and gave his defence. Article 50(2)(g) and (h) of the Constitution guarantees the right to choose and be represented by an advocate and, where substantial injustice would otherwise result, to have an advocate assigned by the State.
The proceedings herein do not disclose that the Appellant requested for legal representation and was denied. Further, the offence charged, though serious, was not a capital offence attracting the death penalty. The record further demonstrates that the Appellant understood the proceedings and actively participated in the trial. I therefore agree with the reasoning adopted in Mokaya v Republic that failure to expressly inform an accused person of the right to legal representation is not automatically fatal where no prejudice is demonstrated. I find no violation of Article 50(2)(g) and (h) that occasioned a miscarriage of justice.
The Appellant was convicted under Section 20(1) of the Sexual Offences Act. The prosecution was therefore required to prove:-
1. The relationship between the Appellant and the Complainant within the prohibited degrees of consanguinity;
2. Penetration;
3. The age of the Complainant.
On the relationship between the parties, the evidence was overwhelming and uncontested. PW1 testified that the Appellant was her biological father. PW2, the Complainant’s mother and wife to the Appellant, confirmed the same. Even the Appellant in his defence admitted that the Complainant was his daughter. That ingredient was proved beyond doubt.
As regards the age of the Complainant, PW2 testified that the Complainant was born in March 2009 and was aged 12 years. PW4 produced the Age Assessment Report estimating the age of the Complainant at 12 years. The age of the Complainant was therefore sufficiently established.
The central issue is whether penetration was proved and whether the Appellant was positively identified as the perpetrator. PW1 gave a detailed and coherent account of the events of the night of 19th and 20th June 2021. She testified that the Appellant directed her to sleep in the main house because she was unwell. Later at night, after returning home drunk, the Appellant joined her on the bed and she woke up feeling pain in her vagina and found that her underwear had been removed and the Appellant had inserted his penis into her vagina from behind. She further testified that the Appellant repeated the act three times during the night.
The incident occurred inside the family home. The Complainant knew the Appellant very well as her father. This was therefore a case of recognition rather than mere identification. The possibility of mistaken identity did not arise. The testimony of PW1 was consistent even during cross examination. Although the defence attempted to attribute her crying to epileptic attacks, PW1 explained that she was able to distinguish epileptic episodes and that she did not suffer an attack that night. Her evidence remained firm and unshaken.
The medical evidence by PW3 corroborated the Complainant’s account. PW3 examined the Complainant about one week after the incident and found that her hymen was broken. Although there were no fresh lacerations or bruises, PW3 explained that the lapse of one week could account for the absence of fresh injuries and that a broken hymen may heal. The law does not require proof of spermatozoa, injuries or DNA evidence in order to establish penetration. Under Section 2 of the Sexual Offences Act, penetration means partial or complete insertion of the genital organs of a person into the genital organs of another.
The evidence of penetration was therefore sufficiently established through the direct testimony of the Complainant, corroborated by the medical findings.
The Court is also alive to the provisions of Section 124 of the Evidence Act which permits a court to convict on the sole evidence of a victim in sexual offences if the court believes the victim and records reasons for such belief. In the present case, the trial court had the advantage of seeing and hearing PW1 testify and evidently believed her. Upon my own re-evaluation of the record, I find no reason to doubt her credibility. Her testimony was truthful, candid and internally consistent.
The Appellant’s defence amounted to a bare denial coupled with allegations of marital differences between himself and PW2. No evidence was tendered to demonstrate that the Complainant had been coached or had any reason to falsely implicate her own father in such a grave offence. Indeed, PW1 expressly stated that she had no reason to lie against the Appellant. This court is therefore satisfied that the prosecution proved all the ingredients of the offence of incest contrary to Section 20(1) of the Sexual Offences Act beyond reasonable doubt.
Consequently, I find that the conviction was safe and the appeal against conviction is therefore without merit.
As regards sentence, Section 20(1) of the Sexual Offences Act provides for a sentence of life imprisonment where the victim is under the age of eighteen years. Given that the Complainant was aged 12 years, the sentence imposed by the trial court was lawful and proper.
In conclusion, the appeal herein has no merit and the conviction and sentence is upheld. The appeal is dismissed accordingly. Right of appeal 14 days explained.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 21st DAY OF MAY, 2026.
The particulars of the offence are that on the nights of 19th and 20th June 2021 at unknown hours at Silanga village, Arambe Sub-Location, East Kanyamkago Location, Uriri Sub-County in Migori County within Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of E. A. O. a child aged 12 years who was to his knowledge his daughter.
In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars are that on the nights of 19th and 20th June 2021 at unknown hours at Silanga village, Arambe Sub-Location, East Kanyamkago Location, Uriri Sub-County in Migori County within Republic of Kenya intentionally and unlawfully caused contact with his hands, penis to the breast and vagina of E. A. O. a child aged 12 years who was to his knowledge his daughter.
Upon consideration of the evidence of 5 prosecution witnesses and the unsworn testimony of the accused person the Trial Magistrate found the prosecution had proved the charge of incest beyond all reasonable doubt and the accused person was found guilty and was convicted accordingly.
The Appellant was aggrieved by the whole judgement and lodged his undated Petition of Appeal on 11th October, 2022 on the following grounds:
1. That he pleaded not guilty to the charge herein
2. That the Trial Magistrate erred in both law and facts by not complying with Article 50(2)(g) & (h) of the Constitution 2010
3. That the Trial Court erred in both law and facts by not observing that the ingredients of the offence herein were not proved as required in law.
Reasons wherefore the Appellant prayed that conviction be quashed and sentence set aside and that leave be granted for him to file supplementary / amended grounds of appeal after receiving the lower court proceedings.
PW1 the minor was examined voire dire to establish her level of intelligence and whether she understood the meaning of an oath and the Trial Magistrate found she could take oath.
In her testimony under oath PW1 said that the Appellant was her biological father and she identified him in the dock. PW1 said they are 9 children in total and that at home she sleeps with the other children in the kitchen while her parents sleep in the main house. PW1 recalled that on 19/06/2021 she was unwell and at 7:00pm, her father went to drink alcohol. That the father asked her to go and sleep in the main house. She said her mother had gone to a funeral at their maternal grandmother's home. That she had left home for the funeral on 16/06/2021. There were other siblings at home. She said she was the only one who went to sleep in the main house leaving others sleeping in the kitchen.
PW1 said that when her father returned from drinking at 8pm she opened the door for him and when she tried to serve him food, he asked her to go back to sleep. That she went to sleep in a bed in a separate room from her parents’ bedroom. The house had 3 rooms her parents’ bedroom, the bedroom where she was sleeping and the living room. That when she went to the bed where she had been sleeping, the accused went to where she was and said he wanted to give her medicine but she did not see the medicine. The accused then asked her to hold him after he went and lay on the same bed where she was. That she declined to hold him and she fell asleep as he was still on her bed. He appeared drunk and was still on his clothes. PW1 said she had a skirt, blouse and under pant. That she was woken up by pain in her vagina and she found her father was lying behind me without his trouser. That she found her pant had been removed and the skirt pushed to the upper part of her back. She said her father had inserted his penis into her private parts through the back. Later that night at around 4am her father went to his bedroom. That her elder brother who is in form 2 heard me crying after he woke up at 4am and when he asked aloud why she was crying, her father respondent that she was having night mares. PW1 said that her brother walked into the main house as the door was not locked. She said that the father did bad things to her 3 times. That when she cried, he could stop and he slept. That he again inserted his ‘thing’ I mean his penis into her vagina and she cried. That he again stopped and later did it again.
That in the morning his brother left for school where he is a boarder as he had been sent home for school fees. She said her father told her not to tell anybody what had happened and he promised to give her Kshs. 50/=.
PW1 said she told her brothers Francis Okumu and Joshua Owino who were in Class 7 and 6 respectively3q. That when her mother returned from the funeral after a few days she told her what had happened and the next morning and she escorted her to hospital. PW1 said she was treated at Oyani hospital and later escorted to Oyani Police Post and a report was booked. That at the hospital, she was given drugs. She identified the treatment notes, P3 and PRC forms as exhibits. PW1 said she was also taken for age assessment. She said it was the first time her father did the bad things to her.
The Appellant cross examined the Complainant and she said that she did not talk to her brother who was going to school it is the Appellant who responded that she was having night mares. She said she cried during the incident and one of her sisters in law (wife to her brother) asked why she had been crying at night and she told her what had happened.
She also said that initially the Appellant came and said he wanted to give her medicine and when she declined to take the medicine which she did not see the Appellant slept on her bed. She said she was woken up by pains in her vagina. She said she did not see blood on her clothes. She denied having harvested beans with her other siblings the morning after the incident.
PW1 also told the Appellant that when she told Owuor what happened, he did not tell her anything. She said that when her brother woke up at 4am and asked why she had been crying, it is the Appellant who responded that she had been having night mares. She admitted that she is epileptic and there is a drug she usually takes and she had already taken it by the time the Appellant returned that night. She said it is true that sometimes she cries when she hits her head after falling but she had not fallen down that night and she did not have an epileptic attack at night. PW1 said that normally, she sleeps in the main house only when she is sick and on the material night, she was sick.
In re-examination PW1 said that sometimes she can sense when she is about to have an epileptic attack. She said that on the 19/06/2021 she had an epileptic attack during the day but not at night. She said that when she does not have an epileptic attack, she can tell everything that happens to her. She said she had no reason to lie against her father (the accused).
PW-2 Meresa Akoth Owiti testified that she came from Harambee in Uriri Sub County. She said she was a farmer and that Ali Owiti Okumu was her husband and E. A. O. PW-1 was her daughter. She said the Complainant was born in March in the year 2009 was 12 years. PW2 said the Complainant goes to school but she was epileptic. She said the accused was the father to the Complainant.
PW2 recalled that on 25/06/2021 she had come from attending a funeral of her mother. She said she left her home on 16/06/2021 and came back on 25/06/2021. She said she had let her children and the accused at my home. That immediately she arrived on 25/06/2021 the Complainant told her that her father had asked her to sleep in their main house in a bed reserved for our last born. That when the father later arrived home from a drinking spree, he went to the bed where she was and defiled her.
As it was late on 25/06/2021 when the Complainant Esther told her about the incident, on 26/06/2021. She escorted her Oyani Hospital where she was examined by a medic who told her that the Complainant had indeed been defiled. She was referred to the police. That before going to the hospital, she examined the Complainant and found her genitalia reddish and looking bruised. A P3 form was issued at Uriri Police Station, statements were recorded and the accused was arrested. The accused drinks alcohol but she had never heard him being accused of defilement or rape before.
PW2 said she had no problems with the accused before the incident giving rise to this case. She said she still stays at their home. She said she did not ask her husband about the incident after the Complainant briefed her as she knew him to be hostile and easily aroused to anger and would have killed her and the Complainant if she were to ask him. She said the Complainant had never been issued with a birth certificate but she know that she was examined to determine her age and a report prepared- Ex P4
In cross examination PW2 said that she did not ask the Appellant about what the Complainant told her. She said she feared that the Appellant could have been hostile to her and the Complainant. PW2 said that the Complainant usually sleeps in the kitchen unless when she is unwell in which case she sleeps in their main house. She said the Appellant called her on 20/06/2021 after the incident to tell her that the Complainant had had an epileptic attack. She said that it is true that the Complainant takes epileptic drug once after a meal but the drug is not taken late at night. She said the Complainant was examined by a medic who concluded that she was defiled.
She said when she arrived on 25/06/2021 she found she had difficulty walking and on inquiry she opened up to her. She said that it is true that they are HIV positive, but the HIV test on the Complainant was negative. That the medic advised that she be tested later as there is what is called a window period. She said it was less than 2 week since the Complainant was treated.
PW-3 Kennedy Otieno Ochieng the Clinical Officer based at Oyani Sub County hospital examined the Complainant on 26/06/2021. He said she came with a history of having been defiled and was escorted to the clinic by her mother. That it was alleged that she was defiled by a father on 19/06/2021.
That on examination of the Complainant’s genitalia her labia minora or majora had no bruises and lacerations but the hymen was broken. There was discharge. That HIV and UDRL tests were done but they were negative. There were no infections. P3 form was duly filled and he treated the patient. PW3 also filled Post Rape Care form.
PW3 said that he examined the victim 1 week after the alleged incident. He said if he had done the examination earlier, he would have probably seen the lacerations and the results would have been different. He said he did not conduct an age assessment on the minor.
In cross examination, PW3 said he had never met the Appellant before. He said he saw the Complainant on 26/06/2021 on allegations that she was defiled by her father. He said the discharge was whitish. He said he did not see any tears on the genitalia and the whitish discharge was not sperms. He also said he did not examine the Appellant.
In cross examination by the court PW3 said that the Complainant’s hymen was broken and a broken hymen can heal after one week.
PW-4 Mr. Joseph Otieno. a Dental Surgeon based at Migori Referral hospital produced the Complainant’s age assessment Report made by Dr. Dolsie Nyagilo who was his colleague dentist on 1st July 2021 and estimated the Complainant’s age as 12 years. He said that she went for further studies and cannot be availed without further delay.
PW-5 No. 83151 PC Jackson Miriti, from Uriri Police Station investigated the offence herein. He said the Complainant was taken to the station by the mother who reported that she had been defiled. That upon interrogation of the Complainant and her mother he established that she had been treated at Oyani Dispensary and a report made at Oyani Police Post. He said the girl mentined her father as the perpetrator
PW5 issued P3 which was duly filled and together with PRC form and treatment notes were produced as exhibits. That on 29/06/2021, he was briefed that the suspect Ali Owiti had been arrested. He identified the Appellant as the suspect who was arrested. PW5 also arranged for age assessment and established that she was 12 years. Later he picked the accused and escorted him to Uriri Police station where he was later charged.
In cross examination PW5 said that he investigated the case before the Appellant was arrested. He said they interrogated the victim and she recorded what had happened. The mother to the victim was away when the incident occurred. The victim had been accompanied by the mother to the police station. He said he was not present when the incident occurred but the victim named the Appellant as the culprit and he saw no reason why the victim would lie against you.
At the close of prosecution case the Appellant gave unsworn statement and said that he came from Oyani Masai in Uriri Sub County and he was a farmer. He said he understood the charge against him. He said that on 29/06/2021 at 7:45pm. 4 persons went to his gate where he was seated with his son and asked his son to talk to the strangers. That he heard them ask for him and his son directed them to him. The 4 strangers went to where he was and arrested him. That they refused to disclose reasons for the arrest. That the 4 people were in police uniform. He was escorted to Oyani Masai Police Post ad later escorted to Uriri police station at 9:30pm where he was locked in cells.
That on 30/06/2021 he was escorted to a small office at 8:00am where they asked me if a knew E. A. He told them that the Complainant was his daughter and that she was sickling. That he was asked about his wife Meresa Akinyi and he told them about differences with his wife over land and infidelity. That his finger prints were taken and on 01/07/2021 he was escorted to Court and the charges were read.He said he knew nothing about the charges.
The appeal herein was canvassed by way of written submissions.
The Appellant did not file any submissions.
The Respondent’s submissions are dated 4th December 2025 and are to the effect that the Trial Court informed the Appellant his rights under Article 50(2) (g) & (h) of the Constitution of Kenya during plea taking and the said rights were not infringed.
The Respondent cited the holding in Mokaya Vs Republic [2024] KEHC 4607 where W. A. Okwanyi J held:-
“In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant’s case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses. It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer any injustice due to lack of legal representation.”
On the ground whether the Trial Court erred in both law and fact by not observing that the ingredients of the offence had not been proved, the Respondent submitted that the offence of incest is rooted on three elements namely, that the Complainant is a relative within the prohibited degree of consanguinity, the second being penetration occurred and lastly age of the victim. It was submitted that all these ingredients were proved by the prosecution to the required standard.
It was submitted that in the case of B V Republic HCCRA No. 80 of 2017 Majanja J noted that the difference between defilement of a child under Section 8(1) and Section 20(1) is the relationship of the offender to the victim.
It was submitted that the Complainant testified that the Appellant was her biological father and PW2 the Complainant’s mother confirmed this fact. The Appellant also confirmed at the time of arrest and during his defence that the Complainant was his daughter.
On the 2nd element of penetration, it was submitted that the Complainant testified that the Appellant returned home while drunk and went to sleep on her bed and when she had fallen asleep, he defiled her and she was woken up by a sharp pain in her vagina only to find the Appellant had undressed her. The Complainant was examined by PW3 whose evidence corroborates the Complainant’s evidence that she was defiled. He confirmed that the minors’ hymen was broken and the minor said it is her father the Appellant who penetrated her vagina using his penis.
Further it was submitted that the Complainant’s age was assessed and it was established that she was 12 years old.
The Respondent Counsel therefore submitted in conclusion that the appeal lacks merit and should be dismissed.
Analysis and Determination
This being a first appeal, the duty of this Court is to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was well stated in Okeno v Republic.
Similarly the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the record of appeal, the grounds of appeal and the submissions filed by the Respondent Counsel, the issues arising for determination are:-
1. Whether the Appellant’s rights under Article 50(2)(g) and (h) of the Constitution were violated;
2. Whether the offence of incest was proved beyond reasonable doubt;
3. Whether the conviction was safe.
On the first issue, the record shows that during plea taking the Appellant was informed of the charge and participated fully throughout the proceedings. He cross-examined all prosecution witnesses at length and gave his defence. Article 50(2)(g) and (h) of the Constitution guarantees the right to choose and be represented by an advocate and, where substantial injustice would otherwise result, to have an advocate assigned by the State.
The proceedings herein do not disclose that the Appellant requested for legal representation and was denied. Further, the offence charged, though serious, was not a capital offence attracting the death penalty. The record further demonstrates that the Appellant understood the proceedings and actively participated in the trial. I therefore agree with the reasoning adopted in Mokaya v Republic that failure to expressly inform an accused person of the right to legal representation is not automatically fatal where no prejudice is demonstrated. I find no violation of Article 50(2)(g) and (h) that occasioned a miscarriage of justice.
The Appellant was convicted under Section 20(1) of the Sexual Offences Act. The prosecution was therefore required to prove:-
1. The relationship between the Appellant and the Complainant within the prohibited degrees of consanguinity;
2. Penetration;
3. The age of the Complainant.
On the relationship between the parties, the evidence was overwhelming and uncontested. PW1 testified that the Appellant was her biological father. PW2, the Complainant’s mother and wife to the Appellant, confirmed the same. Even the Appellant in his defence admitted that the Complainant was his daughter. That ingredient was proved beyond doubt.
As regards the age of the Complainant, PW2 testified that the Complainant was born in March 2009 and was aged 12 years. PW4 produced the Age Assessment Report estimating the age of the Complainant at 12 years. The age of the Complainant was therefore sufficiently established.
The central issue is whether penetration was proved and whether the Appellant was positively identified as the perpetrator. PW1 gave a detailed and coherent account of the events of the night of 19th and 20th June 2021. She testified that the Appellant directed her to sleep in the main house because she was unwell. Later at night, after returning home drunk, the Appellant joined her on the bed and she woke up feeling pain in her vagina and found that her underwear had been removed and the Appellant had inserted his penis into her vagina from behind. She further testified that the Appellant repeated the act three times during the night.
The incident occurred inside the family home. The Complainant knew the Appellant very well as her father. This was therefore a case of recognition rather than mere identification. The possibility of mistaken identity did not arise. The testimony of PW1 was consistent even during cross examination. Although the defence attempted to attribute her crying to epileptic attacks, PW1 explained that she was able to distinguish epileptic episodes and that she did not suffer an attack that night. Her evidence remained firm and unshaken.
The medical evidence by PW3 corroborated the Complainant’s account. PW3 examined the Complainant about one week after the incident and found that her hymen was broken. Although there were no fresh lacerations or bruises, PW3 explained that the lapse of one week could account for the absence of fresh injuries and that a broken hymen may heal. The law does not require proof of spermatozoa, injuries or DNA evidence in order to establish penetration. Under Section 2 of the Sexual Offences Act, penetration means partial or complete insertion of the genital organs of a person into the genital organs of another.
The evidence of penetration was therefore sufficiently established through the direct testimony of the Complainant, corroborated by the medical findings.
The Court is also alive to the provisions of Section 124 of the Evidence Act which permits a court to convict on the sole evidence of a victim in sexual offences if the court believes the victim and records reasons for such belief. In the present case, the trial court had the advantage of seeing and hearing PW1 testify and evidently believed her. Upon my own re-evaluation of the record, I find no reason to doubt her credibility. Her testimony was truthful, candid and internally consistent.
The Appellant’s defence amounted to a bare denial coupled with allegations of marital differences between himself and PW2. No evidence was tendered to demonstrate that the Complainant had been coached or had any reason to falsely implicate her own father in such a grave offence. Indeed, PW1 expressly stated that she had no reason to lie against the Appellant. This court is therefore satisfied that the prosecution proved all the ingredients of the offence of incest contrary to Section 20(1) of the Sexual Offences Act beyond reasonable doubt.
Consequently, I find that the conviction was safe and the appeal against conviction is therefore without merit.
As regards sentence, Section 20(1) of the Sexual Offences Act provides for a sentence of life imprisonment where the victim is under the age of eighteen years. Given that the Complainant was aged 12 years, the sentence imposed by the trial court was lawful and proper.
In conclusion, the appeal herein has no merit and the conviction and sentence is upheld. The appeal is dismissed accordingly. Right of appeal 14 days explained.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 21st DAY OF MAY, 2026.