'(Being an Appeal against conviction and sentence in Mombasa Magistrates Courts S.O No. E098 of 2021 delivered on 15/1/2025 by Hon. G.A. OLIMO
The appellant was charged with the offence of Incest contrary to section 201(1) of the Sexual Offences Act No. 3 of 2006 and faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006.
The particulars of the offences ON the main charge are that on the diverse dates between the year 2019 and the month of July, 2020, at Noor area in Changamwe sub-county within Mombasa County, intentionally penetrated the vagina of P.M.B with his penis that was to his knowledge his daughter a child aged 12 years. And, in the alternative count, on the same diverse dates within the said locality, the appellant intentionally rubbed the vagina of P.M.B with his penis that was to his knowledge his daughter a child aged 12 years.
The appellant was after full trial found guilty under the main count and was thereby sentenced to thirty (30) years imprisonment. Being, aggrieved by the conviction and sentence, and he preferred the present appeal.
He based it on grounds that the learned trial magistrate erred in matters of both law and fact by finding that his guilt was established solely on the testimony of the complainant (PW1). Further, the appellant argues that despite the seriousness of the allegations, the trial court failed to consider the possibility of malice, bias and fabrication of the offence influenced by PW6; the complainant’s mother and his ex-wife owing to their strained relationship and the threats made by her against the appellant.
It was the appellant’s case that the myriad inconsistencies in the complainant’s in crucial aspects and sequence in her testimony were not regarded, as was the undue reliance on the medical evidence provided by PW2 (clinical officer) which suggested a broken hymen, which evidence is not conclusive or a definitive indicator of sexual penetration.
As at the time of making this determination, the parties were yet to file their submissions.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. (See Pandya vs. Republic (1957) EA 336).
Whether the prosecution established its case against the appellant beyond reasonable doubt?
Section 20(1) of the Sexual Offences Act creates the offence of incest. It provides as follows;
“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 10 years:
Provided that, if it is alleged in the information or charge and proved that the female person in 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.”
Section 22(1) which is in regard to the test of the relationship provides thus:
“(1) In cases of the offence of incest, brother and sister includes half brother, half sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.”
In the case of MG v Republic (Criminal Appeal E051 of 2021) [2022] KEHC 14454 (KLR) Mativo J, while interpreting the above statutory provision set out the following ingredients for the offence of incest:
Proof that the offender is a relative of the victim;
Proof of penetration or indecent act;
Identification of the perpetrator;
Proof of the age of the victim;
In this instance, having considered the prosecutorial evidence during the trial court’s proceedings, it is not in contention that the appellant is the complainant’s biological father. Needless to add the appellant conceded that complainant is her biological daughter.
That said, I shall proceed to the merits of this appeal as preferred by the appellant herein. He primarily faults the trial court for finding him guilty solely on the testimony of the complainant; PW1, without taking into consideration the glaring inconsistencies and discrepancies in her testimony. Further, that the corroborative medical evidence of the claimant’s broken hymen is not definitive proof of sexual penetration especially in considering the defence allegations of of malice, bias and fabrication of the offence influenced by PW6; the complainant’s mother and his ex-wife, whom they have a strained relationship.
The record before me, shows clearly that complainant was properly subjected to voire dire examination at the end of which, the learned Magistrate concluded that she was intelligent and understood the duty of speaking the truth and the nature of an oath and directed her to give sworn evidence.
The provisions of Section 124 of the Evidence Act are informative to the end that a conviction can rest squarely on the sole testimony of the victim/complainant. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.”
As to the age of the complainant, the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added).
The complainant, PW1 produced her birth certificate (Pexh-1) which denoted that the complainant was born on 24th February, 2009 whilst at the time of her oral testimony, she testified that she was 13 years, and confirmed that at the time of the incidence she was 12 years. Needless to add, the appellant in his appeal did not contest the age of the minor, and in fact conceded that she was a minor.
The second issue is whether the prosecution established proof of penetration of the complainant, beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. As I have held hereinabove the provisions of Section 124 of the Evidence Act, are informative to the end that a conviction can rest squarely on the sole testimony of the victim.
The appellant argued that there exists undeniable contradictions and inconsistencies in the complainant’s testimony, in that she could not reliably outline the specific days that the alleged incidences occurred.
With regards to discrepancies and contradictions, in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) the Court of Appeal noted as follows;
“How about inconsistencies and contradictions? There were quite a number though the respondent dismissed them as inconsequential. In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, the court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding who to believe. The contradictions have to be considered and weighed carefully.”
Further, in Philip Nzaka Watu v. Republic [2016] eKLR where the court of appeal stated as follows:
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomenon exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”.
In considering the testimony PW1; she vividly narrated that sometime in 2019, while in their one-roomed house during the night, her mother (PW6) was asleep under medication, and she was sleeping on a floored mattress together with her younger brother. That, the appellant came to where she was, removed her dress and panty, inserted his finger in her vagina and then penetrated her vagina using his penis. She did not scream or call for help but after the appellant was done, he gave her 100/=.
It was the complainant’s further testimony that on other diverse occasions in 2020 when the mother was asleep the appellant showed her pornographic videos and then had sexual intercourse with her. Further, in June, 2020, when PW6 had attended a burial the appellant had sexual intercourse with her, and later in another date when PW6 went for prayers in church, the appellant still had sexual intercourse with her.
PW1’s testimony was always that she did not reveal her ordeals to anyone out of fear of the appellant’s threats that she would be jailed if she revealed it.
In assessing the complainant’s testimony, I find that her recollection of the nexus events of the fateful days is constituted by detailed and vivid accounts, to wit this court is unable to doubt her truthfulness. This court finds that the circumstances corroborate the complainant’s evidence to the end that the appellant on several occasions had sexual intercourse with her and threatened her to silence.
In as much as the appellant contends over the inconsistencies of the specific days which the alleged penetration occurred, I find the same inconsequential at best and has not in any way ousted the testimony of the complainant or cast doubt to its veracity.
From the foregoing, there leaves no room for doubt that there was indeed actual penetration from the appellant by his penis on the complainant’s genitalia. The intention of the appellant is undoubtedly manifest in the nexus of events culminating to the very act itself.
As to the identification of the perpetrator, PW1’s evidence is that the appellant is her biological father, whom she identified as the perpetrator.
It would follow that appellant’s defense that the allegations were fabricated by malice and bias instigated by his ex-wife curated to his downfall, remain unsubstantiated. In the foregoing, I have no reason to deviate from the findings of the trial magistrate’s, who had the opportunity to hear and see the complainant as she testified and weigh the same against the appellant’s defense and tested both their demeanor.
As to the 30-year custodial sentence imposed on the appellant, I am of the view that the trial court duly exercised it discretion. Nonetheless, the minimum sentence pursuant to Sec 20 (1) of the Sexual Offence Act, stipulates that a person who causes an …act which causes penetration with a female person who is to his knowledge his daughter… provided that, if it is alleged in the information or charge and proved that the female person in under the age of eighteen years the accused person shall be liable to imprisonment for life.
The recent position, on the strict principles guiding interference on sexual offences sentences by appellate courts were recently considered by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) which noted that minimum sentences unlike mandatory sentences set the floor rather than the ceiling when it comes to sentences.
The pertinent question to follow is whether the trial court’s sentence of thirty (30) years was manifestly lenient warranting this court’s interference? I cede to the Court of Appeal decision in Joseph Muerithi Kanyita v Republic [2017] eKLR where the Court made a finding in the following terms:
“In this appeal the sentence by the trial court was not illegal or unlawful. There is no palpable misdirection by that court apparent on the record. We do not perceive any material factor that the trial court overlooked or any immaterial factor that it took into account. It has not been demonstrated that the trial court acted on a wrong principle or that the sentence it imposed was manifestly excessive or manifestly low. In these circumstances, we are satisfied that the first appellate court erred in enhancing the sentence imposed on the appellant.”
Flowing from the above decision, contrary to the appellant’s contention, I do not find that the sentence was manifestly harsh and excessive, neither do I find that the trial court overlooked any material factor or act on the wrong principles in imposing its sentence. This court shall thus not disturb the sentence.
For the above reasons, I find and hold that the prosecution proved its case against the appellant beyond reasonable doubt. Accordingly, I uphold the conviction and sentence of the trial court. Consequently, the appeal is hereby dismissed in its entirety.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…18th …..day of…September..………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT(S)......IN PERSON AND THE ADVOCATE......................
FOR THE RESPONDENT........MR NGIRI AND MR SIRIMA.....................
COURT ASSISTANT.............BEBORA......................
'''
The appellant was charged with the offence of Incest contrary to section 201(1) of the Sexual Offences Act No. 3 of 2006 and faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 6 of 2006.
The particulars of the offences ON the main charge are that on the diverse dates between the year 2019 and the month of July, 2020, at Noor area in Changamwe sub-county within Mombasa County, intentionally penetrated the vagina of P.M.B with his penis that was to his knowledge his daughter a child aged 12 years. And, in the alternative count, on the same diverse dates within the said locality, the appellant intentionally rubbed the vagina of P.M.B with his penis that was to his knowledge his daughter a child aged 12 years.
The appellant was after full trial found guilty under the main count and was thereby sentenced to thirty (30) years imprisonment. Being, aggrieved by the conviction and sentence, and he preferred the present appeal.
He based it on grounds that the learned trial magistrate erred in matters of both law and fact by finding that his guilt was established solely on the testimony of the complainant (PW1). Further, the appellant argues that despite the seriousness of the allegations, the trial court failed to consider the possibility of malice, bias and fabrication of the offence influenced by PW6; the complainant’s mother and his ex-wife owing to their strained relationship and the threats made by her against the appellant.
It was the appellant’s case that the myriad inconsistencies in the complainant’s in crucial aspects and sequence in her testimony were not regarded, as was the undue reliance on the medical evidence provided by PW2 (clinical officer) which suggested a broken hymen, which evidence is not conclusive or a definitive indicator of sexual penetration.
As at the time of making this determination, the parties were yet to file their submissions.
Determination
It is the duty of the first Appellate court to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. (See Pandya vs. Republic (1957) EA 336).
Whether the prosecution established its case against the appellant beyond reasonable doubt?
Section 20(1) of the Sexual Offences Act creates the offence of incest. It provides as follows;
“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 10 years:
Provided that, if it is alleged in the information or charge and proved that the female person in 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.”
Section 22(1) which is in regard to the test of the relationship provides thus:
“(1) In cases of the offence of incest, brother and sister includes half brother, half sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.”
In the case of MG v Republic (Criminal Appeal E051 of 2021) [2022] KEHC 14454 (KLR) Mativo J, while interpreting the above statutory provision set out the following ingredients for the offence of incest:
Proof that the offender is a relative of the victim;
Proof of penetration or indecent act;
Identification of the perpetrator;
Proof of the age of the victim;
In this instance, having considered the prosecutorial evidence during the trial court’s proceedings, it is not in contention that the appellant is the complainant’s biological father. Needless to add the appellant conceded that complainant is her biological daughter.
That said, I shall proceed to the merits of this appeal as preferred by the appellant herein. He primarily faults the trial court for finding him guilty solely on the testimony of the complainant; PW1, without taking into consideration the glaring inconsistencies and discrepancies in her testimony. Further, that the corroborative medical evidence of the claimant’s broken hymen is not definitive proof of sexual penetration especially in considering the defence allegations of of malice, bias and fabrication of the offence influenced by PW6; the complainant’s mother and his ex-wife, whom they have a strained relationship.
The record before me, shows clearly that complainant was properly subjected to voire dire examination at the end of which, the learned Magistrate concluded that she was intelligent and understood the duty of speaking the truth and the nature of an oath and directed her to give sworn evidence.
The provisions of Section 124 of the Evidence Act are informative to the end that a conviction can rest squarely on the sole testimony of the victim/complainant. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.”
As to the age of the complainant, the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added).
The complainant, PW1 produced her birth certificate (Pexh-1) which denoted that the complainant was born on 24th February, 2009 whilst at the time of her oral testimony, she testified that she was 13 years, and confirmed that at the time of the incidence she was 12 years. Needless to add, the appellant in his appeal did not contest the age of the minor, and in fact conceded that she was a minor.
The second issue is whether the prosecution established proof of penetration of the complainant, beyond reasonable doubt. Penetration is proved through the evidence of the victim corroborated by medical evidence. Nevertheless, what this court requires is proof of facts that the offence was committed, the medical evidence, notwithstanding. As I have held hereinabove the provisions of Section 124 of the Evidence Act, are informative to the end that a conviction can rest squarely on the sole testimony of the victim.
The appellant argued that there exists undeniable contradictions and inconsistencies in the complainant’s testimony, in that she could not reliably outline the specific days that the alleged incidences occurred.
With regards to discrepancies and contradictions, in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) the Court of Appeal noted as follows;
“How about inconsistencies and contradictions? There were quite a number though the respondent dismissed them as inconsequential. In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, the court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding who to believe. The contradictions have to be considered and weighed carefully.”
Further, in Philip Nzaka Watu v. Republic [2016] eKLR where the court of appeal stated as follows:
“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomenon exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”.
In considering the testimony PW1; she vividly narrated that sometime in 2019, while in their one-roomed house during the night, her mother (PW6) was asleep under medication, and she was sleeping on a floored mattress together with her younger brother. That, the appellant came to where she was, removed her dress and panty, inserted his finger in her vagina and then penetrated her vagina using his penis. She did not scream or call for help but after the appellant was done, he gave her 100/=.
It was the complainant’s further testimony that on other diverse occasions in 2020 when the mother was asleep the appellant showed her pornographic videos and then had sexual intercourse with her. Further, in June, 2020, when PW6 had attended a burial the appellant had sexual intercourse with her, and later in another date when PW6 went for prayers in church, the appellant still had sexual intercourse with her.
PW1’s testimony was always that she did not reveal her ordeals to anyone out of fear of the appellant’s threats that she would be jailed if she revealed it.
In assessing the complainant’s testimony, I find that her recollection of the nexus events of the fateful days is constituted by detailed and vivid accounts, to wit this court is unable to doubt her truthfulness. This court finds that the circumstances corroborate the complainant’s evidence to the end that the appellant on several occasions had sexual intercourse with her and threatened her to silence.
In as much as the appellant contends over the inconsistencies of the specific days which the alleged penetration occurred, I find the same inconsequential at best and has not in any way ousted the testimony of the complainant or cast doubt to its veracity.
From the foregoing, there leaves no room for doubt that there was indeed actual penetration from the appellant by his penis on the complainant’s genitalia. The intention of the appellant is undoubtedly manifest in the nexus of events culminating to the very act itself.
As to the identification of the perpetrator, PW1’s evidence is that the appellant is her biological father, whom she identified as the perpetrator.
It would follow that appellant’s defense that the allegations were fabricated by malice and bias instigated by his ex-wife curated to his downfall, remain unsubstantiated. In the foregoing, I have no reason to deviate from the findings of the trial magistrate’s, who had the opportunity to hear and see the complainant as she testified and weigh the same against the appellant’s defense and tested both their demeanor.
As to the 30-year custodial sentence imposed on the appellant, I am of the view that the trial court duly exercised it discretion. Nonetheless, the minimum sentence pursuant to Sec 20 (1) of the Sexual Offence Act, stipulates that a person who causes an …act which causes penetration with a female person who is to his knowledge his daughter… provided that, if it is alleged in the information or charge and proved that the female person in under the age of eighteen years the accused person shall be liable to imprisonment for life.
The recent position, on the strict principles guiding interference on sexual offences sentences by appellate courts were recently considered by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) which noted that minimum sentences unlike mandatory sentences set the floor rather than the ceiling when it comes to sentences.
The pertinent question to follow is whether the trial court’s sentence of thirty (30) years was manifestly lenient warranting this court’s interference? I cede to the Court of Appeal decision in Joseph Muerithi Kanyita v Republic [2017] eKLR where the Court made a finding in the following terms:
“In this appeal the sentence by the trial court was not illegal or unlawful. There is no palpable misdirection by that court apparent on the record. We do not perceive any material factor that the trial court overlooked or any immaterial factor that it took into account. It has not been demonstrated that the trial court acted on a wrong principle or that the sentence it imposed was manifestly excessive or manifestly low. In these circumstances, we are satisfied that the first appellate court erred in enhancing the sentence imposed on the appellant.”
Flowing from the above decision, contrary to the appellant’s contention, I do not find that the sentence was manifestly harsh and excessive, neither do I find that the trial court overlooked any material factor or act on the wrong principles in imposing its sentence. This court shall thus not disturb the sentence.
For the above reasons, I find and hold that the prosecution proved its case against the appellant beyond reasonable doubt. Accordingly, I uphold the conviction and sentence of the trial court. Consequently, the appeal is hereby dismissed in its entirety.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…18th …..day of…September..………2025.
W.K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPELLANT(S)......IN PERSON AND THE ADVOCATE......................
FOR THE RESPONDENT........MR NGIRI AND MR SIRIMA.....................
COURT ASSISTANT.............BEBORA......................
'''