'(Being an appeal from the conviction and sentence delivered on 22/9/2023 and 13/10/2023 respectively by Hon. Wanjiru M. N. (S.R.M) in Gichugu Magistrates Court S.O. Case No. E010 of 2022)
J U D G M E N T
1. The appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on 5th May 2022 at Kiagwenyi village, in Kirinyaga East Sub-County of Kirinyaga County, being a male person, he caused his penis to penetrate the vagina of J. B. W. a female person who was to his knowledge his sister.
2. He was charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same date at the same place and time as in the principal charge the appellant intentionally touched the vagina of J. B. W., a child aged 12 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for a hearing. The prosecution called 5 witnesses in support of its case. PW 1, J. W. the complainant. PW 2, A. W. testified that she is the mother of the complainant and the appellant. PW 3, E.W., said she was a co-wife to PW 2, meaning that she was married to a brother of the husband of PW 2 and so referred to as such, and also as a stepmother to the complainant and the appellant. She also said that she was a “Nyumba Kumi” elder in that area. PW 4, Ritah Wanjiru Makori, was a clinical officer based at Kianyaga hospital. She did a medical examination for the complainant on 7/5/2022. PW 5, I.P., Beatrice Mwau was the investigating officer in the case.
4. PW 1, P.M. the complainant gave evidence after being affirmed as recorded by the trial court. After conducting a voire dire examination, the court found that she did not understand the oath. All the same, the trial court went ahead to have her affirmed then testified. It appears that the learned trial magistrate thought that an affirmation carried lesser weight in terms of the solemnity to witness the truth. That is not so because an affirmation is the legal equivalent of an oath, meaning both are solemn promises to tell the truth thus they carry the same legal weight. The main difference is that an oath is a religious pledge, often to a deity, while an affirmation is a secular pledge on one''s honor (see the Black''s Law Dictionary 4th Ed. Rev. 6-1971 pp 81 and 1220 available online in pdf). Therefore, a person who cannot appreciate the weight of an oath will equally not be able to appreciate the weight of an affirmation.
5. The complainant said that they are only two siblings to thier parents, herself and the appellant. Their father is deceased.
6. The complainant said that she was at their cousin Kinyua’s house when the appellant went there and told her that their mother wanted her home. They left together, going home. They reached the appellant’s house, which is separate from the parents’ house. Their parents were not at home at the time. They entered the appellant’s house and went to the bedroom. The appellant asked her to remove all her clothes and she did. The appellant also removed his clothes and while on the bed, they engaged in sexual intercourse. After they were done, she went to the parents’ house and found their mother there. She told the mother that she had been at Levi’s place.
7. The following day, the complainant went to school, and later in the night, she went back to Kinyua’s house. Kinyua asked her where she had been the previous day. She told him that she had been at Levi’s home. She went away in company of one Mbiro to pick milk. They came back to Kinyua’s house. Kinyua asked her again where she had been the previous day. PW 1 testified that she told Kinyua the truth, that she had been raped by Antony, the appellant. They proceeded to inform Elizabeth, PW 3. Kinyua and PW 3 went and informed her mother, PW 2. They took her to hospital in Kerugoya but they were referred to Kianyaga hospital where she was examined and given medication. They later reported the matter at the Kutus police station.
8. In cross-examination, the complainant said that the appellant did not force her into his house. She also said that she had not slept with a man since she was born.
9. PW 2, the mother of the complainant and the appellant testified that she had been out on the material day and when she came back in the evening the complainant was not in. She came back at 8.00 p.m. PW 2 asked the complainant where she had been. The complainant told her that she had been at a neighbour’s home and they had sent her to the shops. The neighbour had told PW 2 that she would talk to her in the morning. PW 2 beat up the complainant for coming home late because she had warned her about not to be outside the house during night hours but the complainant did not tell her anything else.
10. PW 2’s husband was alive at the time. The four of them had dinner and went to sleep. The following day, the complainant went to school while PW 2 and the appellant went to sleep.
11. PW 2 testified that the complainant told one Purity, who is married in the same family as PW 2, what had happened, that she had slept with the appellant. Purity then took the complainant to hospital. Even though PW 2 was at home, she said she had business she was doing and she delegated that work to mama Felix so as to ensure that the complainant reached hospital. They later went to Kutus police station with her husband and the complainant.
12. In cross-examination, PW 2 said that she was told about what had happened by Purity and that she did not know what to do as both of them are her children.
13. PW 3 said that on the evening of 7/5/2022, while in her house resting after picking tea with the complainant and her mother, PW 2, one Purity who is married in the same home informed Purity and her husband that the previous day she had questioned the complainant about where she had been the evening before. At first, the complainant Purity that that she had been sent to the shops by someone else, but that did not make sense to Purity so she insisted that the complainant speaks the truth. The complainant appeared shocked. The complainant then told Purity that the appellant had taken her to his house and they engaged in sexual intercourse. Purity informed the complainant.
14. PW 3 said that the complainant’s mother appeared not to be in a hurry to act on the information. PW 2 did not want 72 hours to pass before the complainant was medically examined. She took her to the hospital for the same and took a P3 form. The following day they went to the police station with the complainant, PW 2 and her husband and made a report. However, the parents of the complainant and the appellant were angry that she had reported the matter before she informed them.
15. The appellant asked for PW 1, PW 2 and PW 3 to be recalled for further cross-examination and the trial court acceded.
16. In further cross-examination of PW 1, she said that she had no reason why she had not told their mother what had happened. She also said that she lied to their mother about what had happened. She also said that the appellant would not be lying if he stated that he did not do anything to her. She said Elizabeth, PW 3, did not tell her what to tell the police.
17. In further cross-examination of PW 2, she said that the complainant was ashamed to tell her what had happened, but she did not know if that claim was true, and she did not believe it, and that was why she did not go to the police station.
18. In re-examination by the learned prosecutor, PW 2 said that she did not believe that the allegations were true because it had never happened before. She said she went to the police station because she was told to.
19. In further cross-examination, PW 3 said that Purity did not see the complainant get into the appellant’s house but that she was told by the complainant. She said that Purity was not asked by the police to record a statement. She said that Kinyua was Purity’s husband and that he was not the one who told them of the incident. PW 3 said she could not know why Kinyua did not record a statement. She denied that Kinyua was the one who did the act and they implicated the appellant instead. She denied that she hurried up the matter in order to cover up for other issues. She said that while at the hospital, she was asked to get a P3 form and that was when she went to the police station to get it. She later went back to the police station with the complainant, PW 2, and Purity to record statements.
20. PW 4, the clinical officer testified that she examined the complainant on 7th May 2022. She was 12 years old, her date of birth being 16th July 2020. She had a complaint of having been assaulted sexually by her brother on 5th May 2022 and also informed PW 4 that in 2019 she had been defiled by another man but this had not been reported.
21. On examination, the complainant’s genital system was all normal save that she had a whitish discharge, which was a normal finding and her hymen was old torn. PW 4 concluded that she had been defiled based on the history given to her and the torn hymen. All laboratory tests were not positive for any relevant findings.
22. PW 4 completed the PRC form the same day and the P3 form on 8th May 2022. She produced as exhibits, the treatment notes, P3 form and PRC form.
23. PW 5, the investigating officer recounted what she had been informed by the witnesses. She however said that the complainant told her that the appellant had pushed her into his house and defiled her. This was not the evidence of the complainant who stated that she voluntarily entered the appellant’s house.
24. The investigating officer also said that when the mother came back home, she called out the complainant who then emerged from the appellant’s house. Neither the complainant nor her mother said so in their evidence.
25. PW 4 produced the complainant’s certificate of birth as exhibit.
26. In cross-examination, PW 5 maintained that the complainant told her that when the complainant’s mother came back home, she called her, and the complainant emerged from the appellant’s house.
27. PW 5 also said that she did not record the statement of Purity and her husband Kinyua and that the offence did not happen at their house.
28. The appellant DW 1, gave sworn evidence in defence and did not call a witness. He said that the complainant was his sister and that she was 12 years old and that she had been couched by Elizabeth on what to say. He denied that he committed the offence. He said that he was framed by his mother, his aunt Elizabeth and cousin Kinyua for declining to accede to their request that they sell a portion of the family land so that they could start a business. They had called him on 3/5/2022 and put the request to him. On 10th May 2022, the chief went to his house and arrested him and told him that he could not stop the family plans. He said he had been at home from the time of the alleged offence to the time of his arrest.
29. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of incest against the appellant beyond a reasonable doubt and thus convicted and sentenced him to 40 years’ imprisonment.
30. The appellant was aggrieved by the decision of the trial court and has set out to challenge the same based on the following amended grounds of appeal, which are that the trial court erred in law and in fact:
a. by failing to observe that the ingredients of the offence of incest were not proved beyond a reasonable doubt.
b. by failing to consider that the complainant’s evidence was not consistent to warrant the conviction and sentence of 40 years’ imprisonment.
c. by failing to allow the matter to be resolved at home as requested by the complainant and their mother and thereby breached the provisions of article 159(2)(c) of the Constitution to promote reconciliation, mediation and arbitration.
d. by sentencing him to 40 years imprisonment without considering his age as a lad, the said sentence being unconstitutional and contrary to 3 of the European Convention on Human Rights as elevated by Article 29(d)(f) of the Constitution.
31. The appeal was disposed of by way of written submissions filed by the appellant and the respondent which are considered in the analysis that follows.
32. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the parties. The issue for determination is whether the appellant''s conviction can be sustained based on the evidence presented at the trial.
33. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
34. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
35. Sections 20(1) of the Sexual Offences Act under which the appellant was convicted for the offence of incest provides as follows:
S. 20(1): Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
36. In the case of LOA v Republic [2020] KECA 927 (KLR) the Court of Appeal considering the ingredients of the offence of incest held that:
“We have no doubt at all that for an offence of incest to be proved, pursuant to section 20 of the Sexual Offences Act, the prosecution needs to prove the sex of the victim, the relationship of the victim to the perpetrator, penetration and the age of the victim. The latter requirement is for purposes of sentencing.”
37. The appellant’s first and last grounds of appeal are the same: that the prosecution did not prove the charge of incest against him beyond a reasonable doubt.
38. There was no dispute that the complainant was female and that the appellant was her brother. The complainant’s evidence was that she is female and that the appellant was her brother. Evidence of her sex was corroborated by the entry in her certificate of birth, which showed her sex as female, and her date of birth as 16th July 2010. The clinical officer who examined her genitalia confirmed that she was female. The other prosecution witnesses, being her mother, PW 2, her aunt, PW 3, also corroborated her evidence that she was female and a brother to the appellant. The investigating officer gave evidence that the complainant was female. All the witnesses referred to her as a girl. The appellant referred to her as his sister. I am satisfied that the prosecution proved that the complainant was female and was the appellant’s sister.
39. The age of the complainant was also not in dispute, and the appellant said that she was twelve years old. Her date of birth being 16th July 2010, it means on 5th May 2022, when the offence is alleged to have been committed, she was eleven years and ten months old. I am satisfied that the prosecution proved beyond a reasonable doubt that the complainant was under the age of 18 years.
40. The complainant testified that there was penetration of her genital organ by the appellant. The fact of penetration of her genital organ was corroborated by the clinical officer who examined her and said she observed that her hymen was torn. There was no dispute about that.
41. The only remaining element to determine whether it was proved beyond a reasonable doubt, as found by the trial court was whether the appellant had committed penetration of the complainant’s genital organ on 5th May 2022.
42. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with her. She was thus the only factual witness on the issue of penetration.
43. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
44. The provisions of this section are expounded by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR, where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
45. In this case, there was no other witness to the act of penetration of the complainant’s genital organ by the appellant. Therefore, the only evidence that the trial court could rely upon was that of the complainant. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge stated thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
46. From these decisions, it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration, and if there is none, whether the court believed that the complainant was telling the truth. In determining the issue of truthfulness, the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth, and if so, that in the judgment, the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
47. Therefore, there need not be any other witness besides the complainant’s evidence, for as long as the court finds that the victim was telling the truth and also that it warned itself of the dangers of relying on the uncorroborated evidence of the victim.
48. In this case, the learned trial magistrate recorded after the voire dire examination of the complainant that she was satisfied the complainant was possessed of sufficient intelligence and she was brave and spoke boldly and was aware of her environment. However, the trial court did not find the complainant to understand the meaning of an oath. Even then, it went on to have her affirmed. The complainant had, however, said that she had been taught to be truthful in church. That, in my assessment, satisfied the requirement for the trial court to record in the proceedings that the complainant was telling the truth.
49. The trial court found that the complainant gave evidence without hesitation and was unwavering. That she was consistent and was able to describe to the court what happened to her and she did not appear to have any reason or harbor any bitterness towards her brother, the appellant so as to falsely accuse him of the offence.
50. The trial court evaluated the evidence by the appellant and dismissed the allegation that he had been framed up for declining to accede to the sale of land as alleged in his defence because he had not raised that issue with the mother and PW 3 in their respective testimonies. The trial court found no conspiracy among the complainant, the mother and PW 3.
51. In her judgment however, the learned trial magistrate did not look for corroboration nor warn herself of the danger of relying on the uncorroborated evidence of a victim of a sexual offence. The fact that the complainant had no reason to allege falsehoods against the appellant, her only brother is no guarantee that she was telling the truth. It could have been the easiest way to escape the questioning the Purity had subjected her to. Therefore, the genesis of this issue has to be considered.
52. The appellant went to call his sister from Kinyua’s house. It is apparent from her own evidence the complainant used to spend much of her time in that house. There is evidence by the clinical officer that the complainant told her that she had been defiled in 2019 but the issue was not reported. The question that arises is who committed this offence against the complainant and why was it never reported? That issue was not addressed by the prosecution witnesses or the trial court.
53. According to the complainant, the person who asked her where she had been on the evening of 5th May 2022 was Kinyua. However, according to Elizabeth, one Purity, apparently, Kinyua’s wife told her that she was the one who questioned the complainant about where she had been. Neither Purity nor Kinyua were called to testify on how they came to question the complainant about her whereabouts on the evening of 5th May 2022. There was no explanation offered for the failure to call them as witnesses. If either of them had evidence that indeed the appellant had engaged in sexual intercourse with the complainant, that would have corroborated the complainant’s story. They did not.
54. The failure to call these two crucial people as witnesses to shed light on what led to their suspicion that the appellant had engaged in sexual intercourse with the complainant leads to the conclusion that if called, their evidence could have been prejudicial to the prosecution’s case. In the circumstances, there was a doubt created in the prosecution’s case which ought to have been exercised in favour of the appellant.
55. Secondly, the complainant was not a consistent witness. When she was recalled for further cross-examination, she said that if the appellant denied that he had sexual intercourse with her, he would not be lying. That meant the appellant’s denial that he committed the offence was valid. The trial court, however, did not give any consideration to that issue. Instead, the trial court concluded that the appellant had tried to influence the withdrawal of the case, yet the appellant had remained in custody throughout his trial.
56. Another inconsistence was that the investigating officer insisted that the complainant had told her that the appellant pulled her into his house but the complainant maintained that she entered the house on her own volition. Granted the manner of entering the house would not be an issue if the same was established, the issue was her inconsistency in telling the same story. The same was not resolved by any other prosecution evidence.
57. The complainant’s mother was emphatic that she did not believe that the appellant and the complainant had engaged in sexual intercourse. PW 3 was indeed the one who ran away with the issue. As a security person in the village elder, she may have thought that she was acting in the best interest of the child. But upon what evidence? Her own testimony was that she received the information from one Purity and that this was in the presence of the complainant and her mother. There is no point at which PW 3 said that after Purity had relayed this information, she asked the complainant about it, and the complainant confirmed it as true. Indeed, neither the complainant nor her mother, PW 2 said that Purity gave out this information to PW 3 in their presence. What they said was totally different. Purity was never called as a witness in this case. It means the evidence of PW 3 cannot be trusted as reliable. First, it was hearsay, and second, it was inconsistent with what PW 1 and PW 2 said about how the information was relayed.
58. Finally, the investigating officer testified that on her arrival on the material evening, the PW 2, the complainant’s mother saw the complainant leaving the appellant’s house. Neither the complainant nor PW 2 gave such evidence. If it was from the complainant, it reinforces the fact that she was not consistent in what she said at different times and therefore not honest and reliable. In the case of Joseph Ndungu Kimanyi v Republic [1979] KECA 5 (KLR) the Court of Appeal while considering the issue of the reliability of a witness testimony stated thus:
“We lay down the minimum standard as follows. The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
59. In the present case, the complainant does not pass this minimum requirement. The impression created is that she was not a straightforward witness whose evidence could be relied upon as the sole basis for conviction of the appellant. There was thus a doubt created in the prosecution’s case on whether or not the appellant did cause penetration of the complainant’s sexual organ.
60. For the foregoing reasons, I find that the complainant’s evidence of penetration upon which the trial court based its decision was not reliable on its own as to find the complainant to have been a witness of truth as the learned trial magistrate did. Her evidence lacked corroboration and consequently, the decision of the trial court must be set aside and substituted with a finding that the prosecution failed to prove the charges of incest and committing an indecent act with a child against the appellant beyond a reasonable doubt. The appeal is allowed, the conviction is quashed and the sentence of 40 years’ imprisonment set aside.
61. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
62. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 21st of October 2025 in the presence of:
The appellant in person from Nyeri prison.
Komu (Ms) for the respondent
Ummu holding brief for Job: Court assistant.
'
J U D G M E N T
1. The appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on 5th May 2022 at Kiagwenyi village, in Kirinyaga East Sub-County of Kirinyaga County, being a male person, he caused his penis to penetrate the vagina of J. B. W. a female person who was to his knowledge his sister.
2. He was charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same date at the same place and time as in the principal charge the appellant intentionally touched the vagina of J. B. W., a child aged 12 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for a hearing. The prosecution called 5 witnesses in support of its case. PW 1, J. W. the complainant. PW 2, A. W. testified that she is the mother of the complainant and the appellant. PW 3, E.W., said she was a co-wife to PW 2, meaning that she was married to a brother of the husband of PW 2 and so referred to as such, and also as a stepmother to the complainant and the appellant. She also said that she was a “Nyumba Kumi” elder in that area. PW 4, Ritah Wanjiru Makori, was a clinical officer based at Kianyaga hospital. She did a medical examination for the complainant on 7/5/2022. PW 5, I.P., Beatrice Mwau was the investigating officer in the case.
4. PW 1, P.M. the complainant gave evidence after being affirmed as recorded by the trial court. After conducting a voire dire examination, the court found that she did not understand the oath. All the same, the trial court went ahead to have her affirmed then testified. It appears that the learned trial magistrate thought that an affirmation carried lesser weight in terms of the solemnity to witness the truth. That is not so because an affirmation is the legal equivalent of an oath, meaning both are solemn promises to tell the truth thus they carry the same legal weight. The main difference is that an oath is a religious pledge, often to a deity, while an affirmation is a secular pledge on one''s honor (see the Black''s Law Dictionary 4th Ed. Rev. 6-1971 pp 81 and 1220 available online in pdf). Therefore, a person who cannot appreciate the weight of an oath will equally not be able to appreciate the weight of an affirmation.
5. The complainant said that they are only two siblings to thier parents, herself and the appellant. Their father is deceased.
6. The complainant said that she was at their cousin Kinyua’s house when the appellant went there and told her that their mother wanted her home. They left together, going home. They reached the appellant’s house, which is separate from the parents’ house. Their parents were not at home at the time. They entered the appellant’s house and went to the bedroom. The appellant asked her to remove all her clothes and she did. The appellant also removed his clothes and while on the bed, they engaged in sexual intercourse. After they were done, she went to the parents’ house and found their mother there. She told the mother that she had been at Levi’s place.
7. The following day, the complainant went to school, and later in the night, she went back to Kinyua’s house. Kinyua asked her where she had been the previous day. She told him that she had been at Levi’s home. She went away in company of one Mbiro to pick milk. They came back to Kinyua’s house. Kinyua asked her again where she had been the previous day. PW 1 testified that she told Kinyua the truth, that she had been raped by Antony, the appellant. They proceeded to inform Elizabeth, PW 3. Kinyua and PW 3 went and informed her mother, PW 2. They took her to hospital in Kerugoya but they were referred to Kianyaga hospital where she was examined and given medication. They later reported the matter at the Kutus police station.
8. In cross-examination, the complainant said that the appellant did not force her into his house. She also said that she had not slept with a man since she was born.
9. PW 2, the mother of the complainant and the appellant testified that she had been out on the material day and when she came back in the evening the complainant was not in. She came back at 8.00 p.m. PW 2 asked the complainant where she had been. The complainant told her that she had been at a neighbour’s home and they had sent her to the shops. The neighbour had told PW 2 that she would talk to her in the morning. PW 2 beat up the complainant for coming home late because she had warned her about not to be outside the house during night hours but the complainant did not tell her anything else.
10. PW 2’s husband was alive at the time. The four of them had dinner and went to sleep. The following day, the complainant went to school while PW 2 and the appellant went to sleep.
11. PW 2 testified that the complainant told one Purity, who is married in the same family as PW 2, what had happened, that she had slept with the appellant. Purity then took the complainant to hospital. Even though PW 2 was at home, she said she had business she was doing and she delegated that work to mama Felix so as to ensure that the complainant reached hospital. They later went to Kutus police station with her husband and the complainant.
12. In cross-examination, PW 2 said that she was told about what had happened by Purity and that she did not know what to do as both of them are her children.
13. PW 3 said that on the evening of 7/5/2022, while in her house resting after picking tea with the complainant and her mother, PW 2, one Purity who is married in the same home informed Purity and her husband that the previous day she had questioned the complainant about where she had been the evening before. At first, the complainant Purity that that she had been sent to the shops by someone else, but that did not make sense to Purity so she insisted that the complainant speaks the truth. The complainant appeared shocked. The complainant then told Purity that the appellant had taken her to his house and they engaged in sexual intercourse. Purity informed the complainant.
14. PW 3 said that the complainant’s mother appeared not to be in a hurry to act on the information. PW 2 did not want 72 hours to pass before the complainant was medically examined. She took her to the hospital for the same and took a P3 form. The following day they went to the police station with the complainant, PW 2 and her husband and made a report. However, the parents of the complainant and the appellant were angry that she had reported the matter before she informed them.
15. The appellant asked for PW 1, PW 2 and PW 3 to be recalled for further cross-examination and the trial court acceded.
16. In further cross-examination of PW 1, she said that she had no reason why she had not told their mother what had happened. She also said that she lied to their mother about what had happened. She also said that the appellant would not be lying if he stated that he did not do anything to her. She said Elizabeth, PW 3, did not tell her what to tell the police.
17. In further cross-examination of PW 2, she said that the complainant was ashamed to tell her what had happened, but she did not know if that claim was true, and she did not believe it, and that was why she did not go to the police station.
18. In re-examination by the learned prosecutor, PW 2 said that she did not believe that the allegations were true because it had never happened before. She said she went to the police station because she was told to.
19. In further cross-examination, PW 3 said that Purity did not see the complainant get into the appellant’s house but that she was told by the complainant. She said that Purity was not asked by the police to record a statement. She said that Kinyua was Purity’s husband and that he was not the one who told them of the incident. PW 3 said she could not know why Kinyua did not record a statement. She denied that Kinyua was the one who did the act and they implicated the appellant instead. She denied that she hurried up the matter in order to cover up for other issues. She said that while at the hospital, she was asked to get a P3 form and that was when she went to the police station to get it. She later went back to the police station with the complainant, PW 2, and Purity to record statements.
20. PW 4, the clinical officer testified that she examined the complainant on 7th May 2022. She was 12 years old, her date of birth being 16th July 2020. She had a complaint of having been assaulted sexually by her brother on 5th May 2022 and also informed PW 4 that in 2019 she had been defiled by another man but this had not been reported.
21. On examination, the complainant’s genital system was all normal save that she had a whitish discharge, which was a normal finding and her hymen was old torn. PW 4 concluded that she had been defiled based on the history given to her and the torn hymen. All laboratory tests were not positive for any relevant findings.
22. PW 4 completed the PRC form the same day and the P3 form on 8th May 2022. She produced as exhibits, the treatment notes, P3 form and PRC form.
23. PW 5, the investigating officer recounted what she had been informed by the witnesses. She however said that the complainant told her that the appellant had pushed her into his house and defiled her. This was not the evidence of the complainant who stated that she voluntarily entered the appellant’s house.
24. The investigating officer also said that when the mother came back home, she called out the complainant who then emerged from the appellant’s house. Neither the complainant nor her mother said so in their evidence.
25. PW 4 produced the complainant’s certificate of birth as exhibit.
26. In cross-examination, PW 5 maintained that the complainant told her that when the complainant’s mother came back home, she called her, and the complainant emerged from the appellant’s house.
27. PW 5 also said that she did not record the statement of Purity and her husband Kinyua and that the offence did not happen at their house.
28. The appellant DW 1, gave sworn evidence in defence and did not call a witness. He said that the complainant was his sister and that she was 12 years old and that she had been couched by Elizabeth on what to say. He denied that he committed the offence. He said that he was framed by his mother, his aunt Elizabeth and cousin Kinyua for declining to accede to their request that they sell a portion of the family land so that they could start a business. They had called him on 3/5/2022 and put the request to him. On 10th May 2022, the chief went to his house and arrested him and told him that he could not stop the family plans. He said he had been at home from the time of the alleged offence to the time of his arrest.
29. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of incest against the appellant beyond a reasonable doubt and thus convicted and sentenced him to 40 years’ imprisonment.
30. The appellant was aggrieved by the decision of the trial court and has set out to challenge the same based on the following amended grounds of appeal, which are that the trial court erred in law and in fact:
a. by failing to observe that the ingredients of the offence of incest were not proved beyond a reasonable doubt.
b. by failing to consider that the complainant’s evidence was not consistent to warrant the conviction and sentence of 40 years’ imprisonment.
c. by failing to allow the matter to be resolved at home as requested by the complainant and their mother and thereby breached the provisions of article 159(2)(c) of the Constitution to promote reconciliation, mediation and arbitration.
d. by sentencing him to 40 years imprisonment without considering his age as a lad, the said sentence being unconstitutional and contrary to 3 of the European Convention on Human Rights as elevated by Article 29(d)(f) of the Constitution.
31. The appeal was disposed of by way of written submissions filed by the appellant and the respondent which are considered in the analysis that follows.
32. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the parties. The issue for determination is whether the appellant''s conviction can be sustained based on the evidence presented at the trial.
33. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
34. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
35. Sections 20(1) of the Sexual Offences Act under which the appellant was convicted for the offence of incest provides as follows:
S. 20(1): Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
36. In the case of LOA v Republic [2020] KECA 927 (KLR) the Court of Appeal considering the ingredients of the offence of incest held that:
“We have no doubt at all that for an offence of incest to be proved, pursuant to section 20 of the Sexual Offences Act, the prosecution needs to prove the sex of the victim, the relationship of the victim to the perpetrator, penetration and the age of the victim. The latter requirement is for purposes of sentencing.”
37. The appellant’s first and last grounds of appeal are the same: that the prosecution did not prove the charge of incest against him beyond a reasonable doubt.
38. There was no dispute that the complainant was female and that the appellant was her brother. The complainant’s evidence was that she is female and that the appellant was her brother. Evidence of her sex was corroborated by the entry in her certificate of birth, which showed her sex as female, and her date of birth as 16th July 2010. The clinical officer who examined her genitalia confirmed that she was female. The other prosecution witnesses, being her mother, PW 2, her aunt, PW 3, also corroborated her evidence that she was female and a brother to the appellant. The investigating officer gave evidence that the complainant was female. All the witnesses referred to her as a girl. The appellant referred to her as his sister. I am satisfied that the prosecution proved that the complainant was female and was the appellant’s sister.
39. The age of the complainant was also not in dispute, and the appellant said that she was twelve years old. Her date of birth being 16th July 2010, it means on 5th May 2022, when the offence is alleged to have been committed, she was eleven years and ten months old. I am satisfied that the prosecution proved beyond a reasonable doubt that the complainant was under the age of 18 years.
40. The complainant testified that there was penetration of her genital organ by the appellant. The fact of penetration of her genital organ was corroborated by the clinical officer who examined her and said she observed that her hymen was torn. There was no dispute about that.
41. The only remaining element to determine whether it was proved beyond a reasonable doubt, as found by the trial court was whether the appellant had committed penetration of the complainant’s genital organ on 5th May 2022.
42. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with her. She was thus the only factual witness on the issue of penetration.
43. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
44. The provisions of this section are expounded by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR, where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
45. In this case, there was no other witness to the act of penetration of the complainant’s genital organ by the appellant. Therefore, the only evidence that the trial court could rely upon was that of the complainant. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge stated thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
46. From these decisions, it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration, and if there is none, whether the court believed that the complainant was telling the truth. In determining the issue of truthfulness, the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth, and if so, that in the judgment, the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
47. Therefore, there need not be any other witness besides the complainant’s evidence, for as long as the court finds that the victim was telling the truth and also that it warned itself of the dangers of relying on the uncorroborated evidence of the victim.
48. In this case, the learned trial magistrate recorded after the voire dire examination of the complainant that she was satisfied the complainant was possessed of sufficient intelligence and she was brave and spoke boldly and was aware of her environment. However, the trial court did not find the complainant to understand the meaning of an oath. Even then, it went on to have her affirmed. The complainant had, however, said that she had been taught to be truthful in church. That, in my assessment, satisfied the requirement for the trial court to record in the proceedings that the complainant was telling the truth.
49. The trial court found that the complainant gave evidence without hesitation and was unwavering. That she was consistent and was able to describe to the court what happened to her and she did not appear to have any reason or harbor any bitterness towards her brother, the appellant so as to falsely accuse him of the offence.
50. The trial court evaluated the evidence by the appellant and dismissed the allegation that he had been framed up for declining to accede to the sale of land as alleged in his defence because he had not raised that issue with the mother and PW 3 in their respective testimonies. The trial court found no conspiracy among the complainant, the mother and PW 3.
51. In her judgment however, the learned trial magistrate did not look for corroboration nor warn herself of the danger of relying on the uncorroborated evidence of a victim of a sexual offence. The fact that the complainant had no reason to allege falsehoods against the appellant, her only brother is no guarantee that she was telling the truth. It could have been the easiest way to escape the questioning the Purity had subjected her to. Therefore, the genesis of this issue has to be considered.
52. The appellant went to call his sister from Kinyua’s house. It is apparent from her own evidence the complainant used to spend much of her time in that house. There is evidence by the clinical officer that the complainant told her that she had been defiled in 2019 but the issue was not reported. The question that arises is who committed this offence against the complainant and why was it never reported? That issue was not addressed by the prosecution witnesses or the trial court.
53. According to the complainant, the person who asked her where she had been on the evening of 5th May 2022 was Kinyua. However, according to Elizabeth, one Purity, apparently, Kinyua’s wife told her that she was the one who questioned the complainant about where she had been. Neither Purity nor Kinyua were called to testify on how they came to question the complainant about her whereabouts on the evening of 5th May 2022. There was no explanation offered for the failure to call them as witnesses. If either of them had evidence that indeed the appellant had engaged in sexual intercourse with the complainant, that would have corroborated the complainant’s story. They did not.
54. The failure to call these two crucial people as witnesses to shed light on what led to their suspicion that the appellant had engaged in sexual intercourse with the complainant leads to the conclusion that if called, their evidence could have been prejudicial to the prosecution’s case. In the circumstances, there was a doubt created in the prosecution’s case which ought to have been exercised in favour of the appellant.
55. Secondly, the complainant was not a consistent witness. When she was recalled for further cross-examination, she said that if the appellant denied that he had sexual intercourse with her, he would not be lying. That meant the appellant’s denial that he committed the offence was valid. The trial court, however, did not give any consideration to that issue. Instead, the trial court concluded that the appellant had tried to influence the withdrawal of the case, yet the appellant had remained in custody throughout his trial.
56. Another inconsistence was that the investigating officer insisted that the complainant had told her that the appellant pulled her into his house but the complainant maintained that she entered the house on her own volition. Granted the manner of entering the house would not be an issue if the same was established, the issue was her inconsistency in telling the same story. The same was not resolved by any other prosecution evidence.
57. The complainant’s mother was emphatic that she did not believe that the appellant and the complainant had engaged in sexual intercourse. PW 3 was indeed the one who ran away with the issue. As a security person in the village elder, she may have thought that she was acting in the best interest of the child. But upon what evidence? Her own testimony was that she received the information from one Purity and that this was in the presence of the complainant and her mother. There is no point at which PW 3 said that after Purity had relayed this information, she asked the complainant about it, and the complainant confirmed it as true. Indeed, neither the complainant nor her mother, PW 2 said that Purity gave out this information to PW 3 in their presence. What they said was totally different. Purity was never called as a witness in this case. It means the evidence of PW 3 cannot be trusted as reliable. First, it was hearsay, and second, it was inconsistent with what PW 1 and PW 2 said about how the information was relayed.
58. Finally, the investigating officer testified that on her arrival on the material evening, the PW 2, the complainant’s mother saw the complainant leaving the appellant’s house. Neither the complainant nor PW 2 gave such evidence. If it was from the complainant, it reinforces the fact that she was not consistent in what she said at different times and therefore not honest and reliable. In the case of Joseph Ndungu Kimanyi v Republic [1979] KECA 5 (KLR) the Court of Appeal while considering the issue of the reliability of a witness testimony stated thus:
“We lay down the minimum standard as follows. The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
59. In the present case, the complainant does not pass this minimum requirement. The impression created is that she was not a straightforward witness whose evidence could be relied upon as the sole basis for conviction of the appellant. There was thus a doubt created in the prosecution’s case on whether or not the appellant did cause penetration of the complainant’s sexual organ.
60. For the foregoing reasons, I find that the complainant’s evidence of penetration upon which the trial court based its decision was not reliable on its own as to find the complainant to have been a witness of truth as the learned trial magistrate did. Her evidence lacked corroboration and consequently, the decision of the trial court must be set aside and substituted with a finding that the prosecution failed to prove the charges of incest and committing an indecent act with a child against the appellant beyond a reasonable doubt. The appeal is allowed, the conviction is quashed and the sentence of 40 years’ imprisonment set aside.
61. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
62. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 21st of October 2025 in the presence of:
The appellant in person from Nyeri prison.
Komu (Ms) for the respondent
Ummu holding brief for Job: Court assistant.
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