A. INTRODUCTION
1. The Appellant, Benard Musindi, was convicted after a full trial of two main charges of incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006, deliberate transmission of HIV contrary to Section 26(1) of the Sexual Offences Act, No. 3 of 2006 and two counts of child abuse contrary to section 22(1)(b) as read with Section 22(2) of the Children Act.
2. On Count I, the Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that, on 16th September 2024 at around 0700hrs at Mutua Village, Sinoko Location in Webuye East sub-county within Bungoma County, he intentionally touched the anus of G.N. a child aged 8 years with his penis who was to his knowledge was his niece. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006 the particulars being that, on the same dates and at the same place, he intentionally touched the anus of G. N. a child aged 8 years with his penis.
3. On Count II, the Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on 16th September 2024 at Mutua Village, Sinoko Location in Webuye East Sub County within Bungoma County, intentionally touched the vagina of G.N. a child aged 8 years with his penis who was to his knowledge his niece.
4. On Count II,I the Appellant was charged with deliberate transmission of HIV contrary to Section 269(1)(A) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on diverse dates between August 2024 and 16th September 2024 at an uknown time at Mutua Village, Sinoko Location in Webuye East sub-county within Bungoma County having actual knowledge that he was infected with HIV, intentionally and willfully had unprotected sex with G.N which infected G. N. with HIV.
5. On Count IV, the Appellant was charged with child abuse contrary to Section 11(1)(b) as read with Section 22(2) of the Children Act No. 29 of 2022. The particulars were that on diverse dates between August 2024 and 16th September 2024 at unknown time at Mutua Village, sinoko location in Webuye East Sub-County within Bungoma County, willfully and unlawfully subjected G. N. a child aged 8 years to physical and psychological torture by intentionally touching her vaginal and anus with his penis causing her suffering and injury to her health.
6. On Count V, the Appellant was charged with child abuse contrary to Section 22(1)(b) as read with Section 2292) of the Children Act No. 29 of 2022. The particulars were that on diverse dates between August 2024 and 16th September 2024 an unknown time at Maua Village, Sinoko Location in Webuye East Sub -County within Bungoma County, willfully and unlawfully subjected G. N. a child aged 8 years to physical and psychological torture by intentionally had unprotected sex with G. N. which infected her with HIV causing her suffering and injury to her health. All charges were in an Amended Charge Sheet amended on 17/10/2024 and plea taken before PW1 took the stand.
7. On 28th August 2025, the trial court found the Appellant guilty of the two main charges of incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006, deliberate transmission of HIV contrary to Section 2691) of the Sexual Offences Act and the two counts of child abuse contrary to section 22(1)(b) as read with Section 22(2) of the Children Act and sentenced him to life imprisonment. Dissatisfied with the conviction and sentence, the Appellant filed a Petition of Appeal dated 29th August 2025, raising the following grounds: (i) that he is a first offender and remorseful for the offence committed; (ii) that the life sentence as meted out upon the Appellant is rather too harsh and excessive as per the circumstances and also request the Court to consider reducing the same on humanitarian grounds; and (iii) that the learned trial magistrate erred by failing to consider the alibi defence by the Appellant that could have changed the outcome.
8. The Appellant filed Supplementary Grounds of Appeal dated 27th March 2025 raising the following grounds; (i) that the trial court erred in law and in fact in relying on a defective charge sheet with a non-existent offence to convict him; (ii) that the trial court erred in law and in fact in moving the suo moto on its own after the prosecution chose to close its case by choosing to amend the charge sheet and withholding the particulars in its judgement contrary to section 214(1) of the CPC and article 50 of the constitution; (iii) that the trial court erred in law and in fact in wrongful admission of evidence; (iv) that the trial court erred in law and in fact in not proving the offences beyond reasonable doubt standard; (v) that the trial court erred in law and in fact in not appreciating the appellant’s defence; and(vi) that the trial court erred in law and in fact in not making a finding that the sentence under Section 20(1) of the Sexual Offences Act No. 3 of 2006 is discretional as per the legislature stating and hence denied the Appellant his absolute constitutional right pursuant to Article 25(c), 50(2)(p) of the Constitution and failed to make a finding that whole life sentence is unconstitutional pursuant to Article 27(1), 28 and 29(f) of the Constitution of Kenya
9. The Appellant urges this Court to quash the conviction, set aside the sentence, and set him free.
B. THE DUTY OF THIS COURT
10. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
11. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
12. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR, where the Court of Appeal held that the duty of the first appellate court is to analyse and re-evaluate the evidence and come to its own conclusions, without overlooking the conclusions of the trial court; where the first appellate court arrives at the same conclusions as the lower court, having independently considered the evidence, there is nothing objectionable in doing so. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
C. SUMMARY OF THE PROSECUTION EVIDENCE
13. PW 1, Roda Inzei recalled that on 16/09/2024 at around 9:00am while fetching water, a neighbour’s child called Nomi told her that Joab alias Bernard had raped a child. The complainaint was crying and when he asked her, she told her that Baba Maggy – the Appellant – had raped her and had gone to the market. She testified that she told a neighbour called Lydia that the complainant had been raped and they went to the Appellant’s home and found the complainant crying. The complainant told her “Baba Maggy amenifanyia tabia mbaya”. They took the complainant to Jenrix and told him what transpired who advised her to take the child to Nyumba Kumi which they did, on Cyrya Mutali. In the evening, she found the Appellant’s brother taking the Appellant’s clothes and the Appellant tried to run away using a boda boda but the boda boda person took him to prison.
14. She further testified that the police later came with the complainant and the Appellant to the scene. She identified the Appellant in Court and said that the complainant is the child to his brother, the complainant was staying with the child and the child was walking parting her legs. On cross examination PW 1 testified that he knew the Appellant as one for doing bad things and that she has told the Court what she was told and did not see the Appellant defile the child.
15. PW2, Cyrus Mutali, testified that he is a Nyumba Kumi elder and recalled that on 16/09/24 he saw two women, Rhoda & Lydia with complainant and told him the child had been raped by Bernard. He then told the village elder what happened who transmitted the information to the chief. The chief asked him to pick a letter from school and go to the chief’s house. The headmaster wrote a letter and took the child to the hospital on the direction of the chief. He further testified that old women examined the complainant and indeed found her to have been defiled. He took both the mother and the child to hospital.
16. On cross examination, he testified that he knew the Appellant to do bad things and even wanted to cut his wife with a panga. He testified that the Appellant was staying with the complainant after he chased her parents. He confirmed not having witnessed the incident but came to say what the child had told him.
17. PW3, Aggrey Juma Nyongesa testified that he is in charge of Sinoko Sub – County Hospital and testified on a patient by the name Bernard Musindi. Pursuant to a Court order, he was required to give medical records of a patient who comes to the hospital one Bernard Musindi. According to the records he had, Bernard Musindi was HIV + and was first diagnosed on 18/11/2008. He produced the order, medical records, patient monitoring record and transfer letters from Mbale Hospital to Sinoko. On cross examination he confirmed obeying the court order and he did not now why he needed to bring the records and he did not know the Appellant.
18. PW4, Leticia Mbalwe, a clinical officer at Webuye Hospital testified that he attended to the complaiantn on 18/09/2024 who was aged 8 years at the time. The complainant narrated to her the defilement that happened on 16/09/2024 while at the home of her uncle and she had been treated at Sinoko Hospital. She had white discharge from her vagina, hymen was not intact, had lacerations on her vaginal and anus, pregnancy test was negative syphilis and hepatitis B was negative, she had pus cells in the urine. The white discharge had pus cells and blood spots. She was tested for HIV and found to be HIV+. She was given antibiotics and pain killers. At Sinoko she had been started on post exposure prophyluxis. She filled her PRC form . She had a pink pant which had blood. She filled the P3 Form and found the injury to be grievous harm. She produced the documents – P3 Form, treatment notes, PRC form, inpatient card, lab results and the pink pant.
19. On cross examination, she confirmed to have told the court what she saw and said a girl of 8 years can walk depending on the level of penetration. The child was able to walk but she had lacerations on her pricate parts and she did not know who committed the offence. She confirmed having not tested the Appellant nor treated him on 18th and did not know the Appellant.
20. PW5, Polycarp Lutta Kweyu testified that he is a government chemist in Kisumu with 12 years experience. He had a report prepared on 28/01/2025. He tested a pink pant belonging to G. N., a black and white dress for G. N. and a grey long sleeved shirt belonging to Bernard Musindi. A buccal swab of G. N. was also taken. The Appellant was also presented to the lab and his buccal swab taken. He conducted a DNA profile on the samples to find a genetic relationship. He found the pink pant and dress were founf to have blood spots and spermatozoa and found that the DNA profiles for the pant and the black dress matched the DNA profile of the Appellant and the complainant. The DNA profile on the shirt matched the DNA profile of Bernard Musundi. He produced the reports.
21. On cross examination he testified that he did not know the Appellant and the complainant had a relationship. He was limited to checking if the spermatozoa matched the DNA of Bernard Musundi and the blood belonged to the Appellant. He confirmed that the Appellant and the complainant were presented to the office for sample collection.
22. PW6, the complainant G. N. testified that she goes to school in Mombasa and was 10 years old at the time she testified on 17/04/2025. She was staying with, Uncle Bernard – the Appellant – before going to Mombasa and identifies the Appellant in Court. She was staying with older children, Riziki, Maggie and Bana and was in grade 3 at Magemo Primary school. She recalled that on 16/09/2024 she was with Uncle Bernard at home. Just the two of them. He then told her to go to his bedroom and lie on the bed. He removed her clothes. She was wearing a black dress – which she identified in court – he removed her pant – which she identified in court – and he did bad manners to her and said he did it here – while pointing at her vagina and said ‘kitu ya kususu’.
23. She further testified that the Complainant used his thing for urinating and she was injured and saw something like pus and blood came out. It was in the morning while the others had gone to school. After he finished, she wore her clothes and went to the seating room. He cooked tea and keft and she took the tea. She later felt pain in her tummy and cried to a neighbour called Naoi and she told her what the Appellant had done to her. Other women came and she went to her grandfather’s house. She was taken to other women who checked her private parts.
24. After that she was taken to hospital by a Nyumba Kumi elder and her mother came. She testified that she was examined by the doctor and her clothes were taken from her uncle’s home. They went to the police station and reported Uncle Bernard. She then went and lived with her mother. The Appellant had done bad manners to her many times and she did not tell anyone because she feared him.
25. On cross examination she said she knew the Appellant as ‘baba’ and that the Appellant left after doing bad manners to her. She also recalled that her father had done bad manners to her after giving her 30/= and running away. The day her father did bad manners to her is different from the day the Appellant did bad manners to her. She had not been told to frame her by her mother and she was telling the court the truth. On re-exam she confirmed that her father did bad manners to her first and later the Appellant did bad manner to her. He father is called kvin and he ran away afeter defiling her and the Appellant defiled her on the day she has stated.
26. PW7, No. 97382 PC Nancy Moraa Nyaberi testified that she was the Investigating Officer and recalled the members of the public had brought the Appellant vide OB/17/17/9/2024 in the evening and the complaiant was vomiting. The complaiant was taken to hospital and the complaiann, the following day told her that she had been defiled by her father. She mentioned that there was a clothe she had used to wipe herself. She visited the scene with two of her colleagues and the complaiantn. At the hone she was shown where the incident happened, the house had two bedrooms and a seating room and the child took them to the bedroom and she entered the house with the officers and the Appellant’s father.
27. She testified that the Appellant was living with his children, the complainant and two grandchildren. The Appellant took them to his bedroom and the complainant shower her a clothe she used to wipe herself. The complainant picked the shirt the Appellant used to wipe himself with after the act. She produced a grey shirt. She took pictured and video of the scene and recorded statements. She took both the Appellant and the child to Webuye Hospital for examination and the child’s clothes and pant that has blood and a long black dress with lining that was stained. She produced age assessment form confirming the child was 8 years old, the P3 Form, the letter from the school, court order rewuiting DNA be tested and the clothes.
28. On cross examination, she confirmed that the Appellant was brought by members of the public on the night of 17th. After being arrested by the bus stage while trying to run away. The complainant was brought to the statio on 18th. She testified that the complainant was living with the Appellant and she did not witness the incident and she did not talk to him at is house. The Appellant’s father confirmed that the house belonged to the Appellant and there were other witnesses in the hose. She never asked the Appellant for money to help him with the case and she never spoke to the Appellant at Webuye Hospital. She was accompanied by other colleagues.
29. PW 8, No. 93443 Corporal Irene Oduor testified that she works with the child protection unit as an investigator and recalled that on 3/10/2024 her office received information that hter was a child who was being defiled and there was interference with evidence. She was taken to the scene together with her colleagues and =drw a sketch plan of the scene. The village is Mutua Village.
30. On 5/10/24 she went to Misikhu station where she perused the file and took an inventory of the exhibits and on 07/10/24 a request was made to make an application to take the Appellant to the government analyst for DNA and she later sort for order to obtain he accused’s recordsfrom Sinimo. She had received information that the Appellant had been arrested on 17th and taken to Webuye Sub-County Hospital. One witness Naomi Mutete had run away because the family of the Appellat had threatened her. She reiterated the evidence of the complaiantn. She confirmed that the blue boxer worn by the accused was thrown in a pit latrine.
31. On cross examination, she testified that what she did as one of the investigators She did not witness the incident and the child told her what befell her. The doctor’s report shows the child was defiled both vaginally and anally. The child’s clothes were found with the Appellant’s DNA.
32. At the close of the prosecution’s case, the Appellant was put on his defence and he opted to give sworn evidence and called one witness. He testified that he denied the offence leveled against him, he had chased his brother from the parcel they were staying. He had gone to wok when he was called that he was needed at home and he went home to find hios brother and sister in law screaming. He went to the station later and learnt he had defiled a child. The child was living with the father and he was being defiled by the father. He testified that he was framed for evicting away his brother for having sex with his child. He was in cells for one day thinking he was being chased jailed for chasing his brother and demolishing his house. On cross examination he stated that he did not have issues with the child and the child did not have a reason to lie to court.
33. DW2, Charles Lucheto Lukaka, testified that the Appellant is his elder brother and the complainant is his brother’s child. When the Appellant was arrested on 16/09/202d4, they had gone to work and the child normally goes to school. He testified that the neighbours are not in good terms with the Appellant because he doesn’t allow the neighbours to graze on his land. The mother of the complaiant normally forces the child to lie. He was with the Appellant at work from 6:00am and the Appellant did not come back home. He returned home at 2:00pm becaue he was sick.
34. On cross examination he testified that he was with the Appellant on 16/09/25 until 2:00pm left the Appellant and went home. A young man called Christpher can confirm the same. Accorsing to him, the neighbours have an issue with the Appellant, he does not have an issue with his brother and the child was abandoned. On re-exam he testified that the Appellant did not demolish their brother’s house and it was his other brother and his wife who sold their house. He meant the complainant’s parents.
35. The trial court examined the evidence before it and found that all the elements of the 5 counts were proved and proceed to convict the Appellant accordingly. The Appellant was sentenced to life imprisonment.
36. The Appeal was canvassed by way of written submissions where the Appellant submits that the prosecution relied on a defective charge sheet with a non-existent offence to convict him. He submits that the particulars of the charge in Count 1&2 states “he intentionally touched the anus of G.N.. a child aged 8 years with his penis.” And Count 2 of incest contrary to section 20(1) of the Sexual Offences Act where the particulars state “intentionally touched the vagina of G. N. a child aged 8 years with his”.
37. The Appellant submits that he did not plead validity of the charge of incest contrary to Section 20(1) of the Sexual Offences Act and the trial court in its judgement framed it as “offence of incest contrary to Section 20 of the Sexual Offences Act as read with Section 8(3) of the Sexual Offences Act and withheld the particulars of the offence. He submits that he was prejudiced in giving his defence on penetrarion which was later used in the judgement to convict him and in fact the Appellant did not cross examine on penetrarion nor give his evidence against the same occasioning substantial injustice since he was not represented by an Advocate. He relied on the cases of Tembere v R (1990) KLR 353 and Nkirote v R HCCRA No. 166 of 2006.
38. He further submitted that the trial court erred by suo moto choosing to amend the charge sheet after the close of the prosecution’s case and withholding the particulars in its judgement. He submits that the trial court amended the charge in its judgement after close of the prosecutions case to read offence of incest contrary to Section 20 of the Sexual Offences Act as read with Section 8(3) of the Sexual Offences Act and withheld the particulars of the offence. He relied on the case of Eliud Ouma Angwara (2016) eKLR CRA No. 16 of 2016.
39. He submitted that the offences were not proved beyond reasonable doubt. That the DNA tests were inadmissible pursuant to Section 122A(1), 122(c), 122D of the Penal Code. He submits that the DNA sampling procedure was ordered by the DCI police constable and not the consent of the complainant or the Appellant was sought and recorded and hence the evidence ought to be rejected under Article 50(4) of the Constitution.
40. He further submitted that the electronic computer print outs did not have certificates as provided for under Section 65(98), 106B, 78A of the Evidence Act and that the court should place due regard if any weight is to be attached to electronic and digital evidence under the stated sections of the Evidence Act. He further submitted that regards shall be had to the reliability of the manner in which the electronics and digital evidence was generated, stored, communicated and the reliability of the manner in which the integrity of the electronic and digital evidence was maintained and the identification of the originator of the electronic evidence. He submits that the certificate must be availed.
41. The Appellant further submits that there were multiple evidential gaps where PW6 states that she was firdt defiled by her father then the Appellant and the charge sheet clearly indicates that the Appellant touched the private parts of the complainant which indicated that PW6’s evidence of first report did not indicate penetration took place but in her evidence PW6 states that “he did bad manners to me. He did it here and points at her vagina which she uses to urinate” which does not state that penetration occurred which evidence does not prove the charges of touching with penis.
42. He further submits that the Court did not note that the incubation period for HIV/AIDS is six months and the charge sheet and the evidence of the minor alleges that the incident happened on 16/09/2024. Medical examination was done on 18/09/2024 by PW4 the clinical officer. A period of 2 days was not sufficient for the HIV virus to have manifested itself in the complainant’s blood. Hence he submits that the complainant got her HIV infection from somewhere else. PW6 says she used to live with her father who used to defile her. The Appellant relies on the case of Pius Arap Maina v R [2013]eKLR and submits that the prosecution case contained multiple evidential gaps eventually raising doubts about the culpability of the Appellant which have to be resolved in his favour.
43. The Appellant also submitted that the trial court erred in law and fact in not making a finding that the sentence under 20(1) of the Sexual Offences act is discretional as per the legislature and hence denied the Appellant his absolute constitutional right pursuant to Article 25(c), 50(2)(p) of the Constitution and failed to make a finding that whole life sentence is unconstitutional pursuant to Article 27(1), 28(f) of the constitution. He submitted that this Court should be guided in the holding in Court of Appeal decision in Richard Nyambuga Gwako & Another Criminal Appeal No. 20 of 2017. He submits that the life sentence under Section 20(1) is not mandatory and gives the trial court disceton to impose a sentence upto the maximum.
44. He relied on the case of HCCR Pet No. E002 of 2024 citing Silas Maliolo Zakayo & James Masinde Wafula & 5 Others v R and Jared Koita Injiri v R [2019] eKLR, Manyeso v R and urged this court that in the event of dismissal of his appeal, to consider a lease severe sentence.
45. He further submitted that the trial court erred in law and in fact in not appreciating the Appellant’s defence that overwhelmed the prosecution that at the time of the alleged incident he was at work and corroborated by DW2. He was framed due to grudges between him and his members of their family and that PW6 was defiled by her father but coached to shift her father’s guilt to the accused. He questioned why legal action was not take against PW6’s father.
46. The Respondent equally filed submissions and submitted that the key ingredients of defilement were proved by the prosecution which were, age, penetration and identity. On the age of the complainant, the Respondent relied on the decision of Richard Wahome Chege v R Criminal Appeal No. 61 of 2014 and that the age assessment report produced indicated that the complainant was 8 years old and corroborated by the evidence of PW7.
47. On proof of penetration, the Respondent relies on the definition of penetration under Section 2 of the Sexual Offences Act and relied on the decision of Mark Oiruri Mose v R (2013) eKLR and Erick Onyango Odeng v R [2014] eKLR and submitted that the findings on the P3 form were that the complaiant’s hymen was torn, had lacerations on the vagina and anus. Equally, the the testimony of the complaiant indicate that the Appellant had forcefully defiled the minor who was his niece.
48. On identification, the Respondent submitted that the Appellant was no stranger to the complainant, she was his niece, and living with her and her other siblings and even called the Appellant by his name, Bernard. She could see, recognize and identify the Appellant well. The Respondent relied ont he case of Ogeto v R (2004) KLR 19.
49. On consanguinity, the Respondent submits that the complainant referred to the Appellant as Uncle Bernard and this relationship was corroborated by other prosecution witnesses.
50. On sentence, the Respondent submitted that Section 20(1) provides for up to a life sentence for victims below the age of 18. The complainant was 8 years old at the time of defilement and relied on the case of Francis Omironi v Uganda – Criminal Appeal No. 2 of 2000 and having proved that the complaiant was below 18 years, the sentence of life was a lawful sentwnce.
51. The Respondent submits that the Appellant was also found guilty of and convicted on Count III on deliberate transmission of HIV and submitted that the complainant had defiled her severally in the past which she did not report and the Appellant knew of his HIV status prior to committing the offence. Documents presented to Court proved that the Appellant knew of his status since November of 2008 and had attended a health facility over the same and submitted that Count II had been proved beyond reasonable doubt and the same facts were used to convict the Appellant on the rest of the counts under the Children Act.
52. The prosecution further submits that \considering the circumstances of the case, the age of the victim. Her mental status and the injuries suffered; which injuries were both physical, mental and long term emotional of being abused by an adult who was her uncle, a person she depended on for upkeep and security/safety; having been deprived of innocence and being exposed to sexual acts at a tender age of 8 years and having infected the complainant with a life threatening disease, the Respondent submitted that the life sentence was very reasonable. The Prosecution relied on the case of Misc. Cr. Appl. No. E014 of 2021 Rotike v R that the court still had the discretion even with provisions of the Sexual Offences Act. The prosecution further relied on the case of Joshua Gichui Mwangi and ISLA and submitted that the appeal be dismissed, the conviction and sentence be upheld.
Determination and analysis
53. I have perused the record of appeal, the charge sheet as well as the judgment of the learned Hon. Yator. I note that on the Amended Charge Sheet which amendment was on 17/10/2024, on Count I the Appellant was charged with incest contrary to Section 20(1) of the Sexual offences Act, No. 3 of 2006, particulars having been stated as
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1. The Appellant, Benard Musindi, was convicted after a full trial of two main charges of incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006, deliberate transmission of HIV contrary to Section 26(1) of the Sexual Offences Act, No. 3 of 2006 and two counts of child abuse contrary to section 22(1)(b) as read with Section 22(2) of the Children Act.
2. On Count I, the Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that, on 16th September 2024 at around 0700hrs at Mutua Village, Sinoko Location in Webuye East sub-county within Bungoma County, he intentionally touched the anus of G.N. a child aged 8 years with his penis who was to his knowledge was his niece. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006 the particulars being that, on the same dates and at the same place, he intentionally touched the anus of G. N. a child aged 8 years with his penis.
3. On Count II, the Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on 16th September 2024 at Mutua Village, Sinoko Location in Webuye East Sub County within Bungoma County, intentionally touched the vagina of G.N. a child aged 8 years with his penis who was to his knowledge his niece.
4. On Count II,I the Appellant was charged with deliberate transmission of HIV contrary to Section 269(1)(A) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on diverse dates between August 2024 and 16th September 2024 at an uknown time at Mutua Village, Sinoko Location in Webuye East sub-county within Bungoma County having actual knowledge that he was infected with HIV, intentionally and willfully had unprotected sex with G.N which infected G. N. with HIV.
5. On Count IV, the Appellant was charged with child abuse contrary to Section 11(1)(b) as read with Section 22(2) of the Children Act No. 29 of 2022. The particulars were that on diverse dates between August 2024 and 16th September 2024 at unknown time at Mutua Village, sinoko location in Webuye East Sub-County within Bungoma County, willfully and unlawfully subjected G. N. a child aged 8 years to physical and psychological torture by intentionally touching her vaginal and anus with his penis causing her suffering and injury to her health.
6. On Count V, the Appellant was charged with child abuse contrary to Section 22(1)(b) as read with Section 2292) of the Children Act No. 29 of 2022. The particulars were that on diverse dates between August 2024 and 16th September 2024 an unknown time at Maua Village, Sinoko Location in Webuye East Sub -County within Bungoma County, willfully and unlawfully subjected G. N. a child aged 8 years to physical and psychological torture by intentionally had unprotected sex with G. N. which infected her with HIV causing her suffering and injury to her health. All charges were in an Amended Charge Sheet amended on 17/10/2024 and plea taken before PW1 took the stand.
7. On 28th August 2025, the trial court found the Appellant guilty of the two main charges of incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006, deliberate transmission of HIV contrary to Section 2691) of the Sexual Offences Act and the two counts of child abuse contrary to section 22(1)(b) as read with Section 22(2) of the Children Act and sentenced him to life imprisonment. Dissatisfied with the conviction and sentence, the Appellant filed a Petition of Appeal dated 29th August 2025, raising the following grounds: (i) that he is a first offender and remorseful for the offence committed; (ii) that the life sentence as meted out upon the Appellant is rather too harsh and excessive as per the circumstances and also request the Court to consider reducing the same on humanitarian grounds; and (iii) that the learned trial magistrate erred by failing to consider the alibi defence by the Appellant that could have changed the outcome.
8. The Appellant filed Supplementary Grounds of Appeal dated 27th March 2025 raising the following grounds; (i) that the trial court erred in law and in fact in relying on a defective charge sheet with a non-existent offence to convict him; (ii) that the trial court erred in law and in fact in moving the suo moto on its own after the prosecution chose to close its case by choosing to amend the charge sheet and withholding the particulars in its judgement contrary to section 214(1) of the CPC and article 50 of the constitution; (iii) that the trial court erred in law and in fact in wrongful admission of evidence; (iv) that the trial court erred in law and in fact in not proving the offences beyond reasonable doubt standard; (v) that the trial court erred in law and in fact in not appreciating the appellant’s defence; and(vi) that the trial court erred in law and in fact in not making a finding that the sentence under Section 20(1) of the Sexual Offences Act No. 3 of 2006 is discretional as per the legislature stating and hence denied the Appellant his absolute constitutional right pursuant to Article 25(c), 50(2)(p) of the Constitution and failed to make a finding that whole life sentence is unconstitutional pursuant to Article 27(1), 28 and 29(f) of the Constitution of Kenya
9. The Appellant urges this Court to quash the conviction, set aside the sentence, and set him free.
B. THE DUTY OF THIS COURT
10. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
11. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
12. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR, where the Court of Appeal held that the duty of the first appellate court is to analyse and re-evaluate the evidence and come to its own conclusions, without overlooking the conclusions of the trial court; where the first appellate court arrives at the same conclusions as the lower court, having independently considered the evidence, there is nothing objectionable in doing so. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
C. SUMMARY OF THE PROSECUTION EVIDENCE
13. PW 1, Roda Inzei recalled that on 16/09/2024 at around 9:00am while fetching water, a neighbour’s child called Nomi told her that Joab alias Bernard had raped a child. The complainaint was crying and when he asked her, she told her that Baba Maggy – the Appellant – had raped her and had gone to the market. She testified that she told a neighbour called Lydia that the complainant had been raped and they went to the Appellant’s home and found the complainant crying. The complainant told her “Baba Maggy amenifanyia tabia mbaya”. They took the complainant to Jenrix and told him what transpired who advised her to take the child to Nyumba Kumi which they did, on Cyrya Mutali. In the evening, she found the Appellant’s brother taking the Appellant’s clothes and the Appellant tried to run away using a boda boda but the boda boda person took him to prison.
14. She further testified that the police later came with the complainant and the Appellant to the scene. She identified the Appellant in Court and said that the complainant is the child to his brother, the complainant was staying with the child and the child was walking parting her legs. On cross examination PW 1 testified that he knew the Appellant as one for doing bad things and that she has told the Court what she was told and did not see the Appellant defile the child.
15. PW2, Cyrus Mutali, testified that he is a Nyumba Kumi elder and recalled that on 16/09/24 he saw two women, Rhoda & Lydia with complainant and told him the child had been raped by Bernard. He then told the village elder what happened who transmitted the information to the chief. The chief asked him to pick a letter from school and go to the chief’s house. The headmaster wrote a letter and took the child to the hospital on the direction of the chief. He further testified that old women examined the complainant and indeed found her to have been defiled. He took both the mother and the child to hospital.
16. On cross examination, he testified that he knew the Appellant to do bad things and even wanted to cut his wife with a panga. He testified that the Appellant was staying with the complainant after he chased her parents. He confirmed not having witnessed the incident but came to say what the child had told him.
17. PW3, Aggrey Juma Nyongesa testified that he is in charge of Sinoko Sub – County Hospital and testified on a patient by the name Bernard Musindi. Pursuant to a Court order, he was required to give medical records of a patient who comes to the hospital one Bernard Musindi. According to the records he had, Bernard Musindi was HIV + and was first diagnosed on 18/11/2008. He produced the order, medical records, patient monitoring record and transfer letters from Mbale Hospital to Sinoko. On cross examination he confirmed obeying the court order and he did not now why he needed to bring the records and he did not know the Appellant.
18. PW4, Leticia Mbalwe, a clinical officer at Webuye Hospital testified that he attended to the complaiantn on 18/09/2024 who was aged 8 years at the time. The complainant narrated to her the defilement that happened on 16/09/2024 while at the home of her uncle and she had been treated at Sinoko Hospital. She had white discharge from her vagina, hymen was not intact, had lacerations on her vaginal and anus, pregnancy test was negative syphilis and hepatitis B was negative, she had pus cells in the urine. The white discharge had pus cells and blood spots. She was tested for HIV and found to be HIV+. She was given antibiotics and pain killers. At Sinoko she had been started on post exposure prophyluxis. She filled her PRC form . She had a pink pant which had blood. She filled the P3 Form and found the injury to be grievous harm. She produced the documents – P3 Form, treatment notes, PRC form, inpatient card, lab results and the pink pant.
19. On cross examination, she confirmed to have told the court what she saw and said a girl of 8 years can walk depending on the level of penetration. The child was able to walk but she had lacerations on her pricate parts and she did not know who committed the offence. She confirmed having not tested the Appellant nor treated him on 18th and did not know the Appellant.
20. PW5, Polycarp Lutta Kweyu testified that he is a government chemist in Kisumu with 12 years experience. He had a report prepared on 28/01/2025. He tested a pink pant belonging to G. N., a black and white dress for G. N. and a grey long sleeved shirt belonging to Bernard Musindi. A buccal swab of G. N. was also taken. The Appellant was also presented to the lab and his buccal swab taken. He conducted a DNA profile on the samples to find a genetic relationship. He found the pink pant and dress were founf to have blood spots and spermatozoa and found that the DNA profiles for the pant and the black dress matched the DNA profile of the Appellant and the complainant. The DNA profile on the shirt matched the DNA profile of Bernard Musundi. He produced the reports.
21. On cross examination he testified that he did not know the Appellant and the complainant had a relationship. He was limited to checking if the spermatozoa matched the DNA of Bernard Musundi and the blood belonged to the Appellant. He confirmed that the Appellant and the complainant were presented to the office for sample collection.
22. PW6, the complainant G. N. testified that she goes to school in Mombasa and was 10 years old at the time she testified on 17/04/2025. She was staying with, Uncle Bernard – the Appellant – before going to Mombasa and identifies the Appellant in Court. She was staying with older children, Riziki, Maggie and Bana and was in grade 3 at Magemo Primary school. She recalled that on 16/09/2024 she was with Uncle Bernard at home. Just the two of them. He then told her to go to his bedroom and lie on the bed. He removed her clothes. She was wearing a black dress – which she identified in court – he removed her pant – which she identified in court – and he did bad manners to her and said he did it here – while pointing at her vagina and said ‘kitu ya kususu’.
23. She further testified that the Complainant used his thing for urinating and she was injured and saw something like pus and blood came out. It was in the morning while the others had gone to school. After he finished, she wore her clothes and went to the seating room. He cooked tea and keft and she took the tea. She later felt pain in her tummy and cried to a neighbour called Naoi and she told her what the Appellant had done to her. Other women came and she went to her grandfather’s house. She was taken to other women who checked her private parts.
24. After that she was taken to hospital by a Nyumba Kumi elder and her mother came. She testified that she was examined by the doctor and her clothes were taken from her uncle’s home. They went to the police station and reported Uncle Bernard. She then went and lived with her mother. The Appellant had done bad manners to her many times and she did not tell anyone because she feared him.
25. On cross examination she said she knew the Appellant as ‘baba’ and that the Appellant left after doing bad manners to her. She also recalled that her father had done bad manners to her after giving her 30/= and running away. The day her father did bad manners to her is different from the day the Appellant did bad manners to her. She had not been told to frame her by her mother and she was telling the court the truth. On re-exam she confirmed that her father did bad manners to her first and later the Appellant did bad manner to her. He father is called kvin and he ran away afeter defiling her and the Appellant defiled her on the day she has stated.
26. PW7, No. 97382 PC Nancy Moraa Nyaberi testified that she was the Investigating Officer and recalled the members of the public had brought the Appellant vide OB/17/17/9/2024 in the evening and the complaiant was vomiting. The complaiant was taken to hospital and the complaiann, the following day told her that she had been defiled by her father. She mentioned that there was a clothe she had used to wipe herself. She visited the scene with two of her colleagues and the complaiantn. At the hone she was shown where the incident happened, the house had two bedrooms and a seating room and the child took them to the bedroom and she entered the house with the officers and the Appellant’s father.
27. She testified that the Appellant was living with his children, the complainant and two grandchildren. The Appellant took them to his bedroom and the complainant shower her a clothe she used to wipe herself. The complainant picked the shirt the Appellant used to wipe himself with after the act. She produced a grey shirt. She took pictured and video of the scene and recorded statements. She took both the Appellant and the child to Webuye Hospital for examination and the child’s clothes and pant that has blood and a long black dress with lining that was stained. She produced age assessment form confirming the child was 8 years old, the P3 Form, the letter from the school, court order rewuiting DNA be tested and the clothes.
28. On cross examination, she confirmed that the Appellant was brought by members of the public on the night of 17th. After being arrested by the bus stage while trying to run away. The complainant was brought to the statio on 18th. She testified that the complainant was living with the Appellant and she did not witness the incident and she did not talk to him at is house. The Appellant’s father confirmed that the house belonged to the Appellant and there were other witnesses in the hose. She never asked the Appellant for money to help him with the case and she never spoke to the Appellant at Webuye Hospital. She was accompanied by other colleagues.
29. PW 8, No. 93443 Corporal Irene Oduor testified that she works with the child protection unit as an investigator and recalled that on 3/10/2024 her office received information that hter was a child who was being defiled and there was interference with evidence. She was taken to the scene together with her colleagues and =drw a sketch plan of the scene. The village is Mutua Village.
30. On 5/10/24 she went to Misikhu station where she perused the file and took an inventory of the exhibits and on 07/10/24 a request was made to make an application to take the Appellant to the government analyst for DNA and she later sort for order to obtain he accused’s recordsfrom Sinimo. She had received information that the Appellant had been arrested on 17th and taken to Webuye Sub-County Hospital. One witness Naomi Mutete had run away because the family of the Appellat had threatened her. She reiterated the evidence of the complaiantn. She confirmed that the blue boxer worn by the accused was thrown in a pit latrine.
31. On cross examination, she testified that what she did as one of the investigators She did not witness the incident and the child told her what befell her. The doctor’s report shows the child was defiled both vaginally and anally. The child’s clothes were found with the Appellant’s DNA.
32. At the close of the prosecution’s case, the Appellant was put on his defence and he opted to give sworn evidence and called one witness. He testified that he denied the offence leveled against him, he had chased his brother from the parcel they were staying. He had gone to wok when he was called that he was needed at home and he went home to find hios brother and sister in law screaming. He went to the station later and learnt he had defiled a child. The child was living with the father and he was being defiled by the father. He testified that he was framed for evicting away his brother for having sex with his child. He was in cells for one day thinking he was being chased jailed for chasing his brother and demolishing his house. On cross examination he stated that he did not have issues with the child and the child did not have a reason to lie to court.
33. DW2, Charles Lucheto Lukaka, testified that the Appellant is his elder brother and the complainant is his brother’s child. When the Appellant was arrested on 16/09/202d4, they had gone to work and the child normally goes to school. He testified that the neighbours are not in good terms with the Appellant because he doesn’t allow the neighbours to graze on his land. The mother of the complaiant normally forces the child to lie. He was with the Appellant at work from 6:00am and the Appellant did not come back home. He returned home at 2:00pm becaue he was sick.
34. On cross examination he testified that he was with the Appellant on 16/09/25 until 2:00pm left the Appellant and went home. A young man called Christpher can confirm the same. Accorsing to him, the neighbours have an issue with the Appellant, he does not have an issue with his brother and the child was abandoned. On re-exam he testified that the Appellant did not demolish their brother’s house and it was his other brother and his wife who sold their house. He meant the complainant’s parents.
35. The trial court examined the evidence before it and found that all the elements of the 5 counts were proved and proceed to convict the Appellant accordingly. The Appellant was sentenced to life imprisonment.
36. The Appeal was canvassed by way of written submissions where the Appellant submits that the prosecution relied on a defective charge sheet with a non-existent offence to convict him. He submits that the particulars of the charge in Count 1&2 states “he intentionally touched the anus of G.N.. a child aged 8 years with his penis.” And Count 2 of incest contrary to section 20(1) of the Sexual Offences Act where the particulars state “intentionally touched the vagina of G. N. a child aged 8 years with his”.
37. The Appellant submits that he did not plead validity of the charge of incest contrary to Section 20(1) of the Sexual Offences Act and the trial court in its judgement framed it as “offence of incest contrary to Section 20 of the Sexual Offences Act as read with Section 8(3) of the Sexual Offences Act and withheld the particulars of the offence. He submits that he was prejudiced in giving his defence on penetrarion which was later used in the judgement to convict him and in fact the Appellant did not cross examine on penetrarion nor give his evidence against the same occasioning substantial injustice since he was not represented by an Advocate. He relied on the cases of Tembere v R (1990) KLR 353 and Nkirote v R HCCRA No. 166 of 2006.
38. He further submitted that the trial court erred by suo moto choosing to amend the charge sheet after the close of the prosecution’s case and withholding the particulars in its judgement. He submits that the trial court amended the charge in its judgement after close of the prosecutions case to read offence of incest contrary to Section 20 of the Sexual Offences Act as read with Section 8(3) of the Sexual Offences Act and withheld the particulars of the offence. He relied on the case of Eliud Ouma Angwara (2016) eKLR CRA No. 16 of 2016.
39. He submitted that the offences were not proved beyond reasonable doubt. That the DNA tests were inadmissible pursuant to Section 122A(1), 122(c), 122D of the Penal Code. He submits that the DNA sampling procedure was ordered by the DCI police constable and not the consent of the complainant or the Appellant was sought and recorded and hence the evidence ought to be rejected under Article 50(4) of the Constitution.
40. He further submitted that the electronic computer print outs did not have certificates as provided for under Section 65(98), 106B, 78A of the Evidence Act and that the court should place due regard if any weight is to be attached to electronic and digital evidence under the stated sections of the Evidence Act. He further submitted that regards shall be had to the reliability of the manner in which the electronics and digital evidence was generated, stored, communicated and the reliability of the manner in which the integrity of the electronic and digital evidence was maintained and the identification of the originator of the electronic evidence. He submits that the certificate must be availed.
41. The Appellant further submits that there were multiple evidential gaps where PW6 states that she was firdt defiled by her father then the Appellant and the charge sheet clearly indicates that the Appellant touched the private parts of the complainant which indicated that PW6’s evidence of first report did not indicate penetration took place but in her evidence PW6 states that “he did bad manners to me. He did it here and points at her vagina which she uses to urinate” which does not state that penetration occurred which evidence does not prove the charges of touching with penis.
42. He further submits that the Court did not note that the incubation period for HIV/AIDS is six months and the charge sheet and the evidence of the minor alleges that the incident happened on 16/09/2024. Medical examination was done on 18/09/2024 by PW4 the clinical officer. A period of 2 days was not sufficient for the HIV virus to have manifested itself in the complainant’s blood. Hence he submits that the complainant got her HIV infection from somewhere else. PW6 says she used to live with her father who used to defile her. The Appellant relies on the case of Pius Arap Maina v R [2013]eKLR and submits that the prosecution case contained multiple evidential gaps eventually raising doubts about the culpability of the Appellant which have to be resolved in his favour.
43. The Appellant also submitted that the trial court erred in law and fact in not making a finding that the sentence under 20(1) of the Sexual Offences act is discretional as per the legislature and hence denied the Appellant his absolute constitutional right pursuant to Article 25(c), 50(2)(p) of the Constitution and failed to make a finding that whole life sentence is unconstitutional pursuant to Article 27(1), 28(f) of the constitution. He submitted that this Court should be guided in the holding in Court of Appeal decision in Richard Nyambuga Gwako & Another Criminal Appeal No. 20 of 2017. He submits that the life sentence under Section 20(1) is not mandatory and gives the trial court disceton to impose a sentence upto the maximum.
44. He relied on the case of HCCR Pet No. E002 of 2024 citing Silas Maliolo Zakayo & James Masinde Wafula & 5 Others v R and Jared Koita Injiri v R [2019] eKLR, Manyeso v R and urged this court that in the event of dismissal of his appeal, to consider a lease severe sentence.
45. He further submitted that the trial court erred in law and in fact in not appreciating the Appellant’s defence that overwhelmed the prosecution that at the time of the alleged incident he was at work and corroborated by DW2. He was framed due to grudges between him and his members of their family and that PW6 was defiled by her father but coached to shift her father’s guilt to the accused. He questioned why legal action was not take against PW6’s father.
46. The Respondent equally filed submissions and submitted that the key ingredients of defilement were proved by the prosecution which were, age, penetration and identity. On the age of the complainant, the Respondent relied on the decision of Richard Wahome Chege v R Criminal Appeal No. 61 of 2014 and that the age assessment report produced indicated that the complainant was 8 years old and corroborated by the evidence of PW7.
47. On proof of penetration, the Respondent relies on the definition of penetration under Section 2 of the Sexual Offences Act and relied on the decision of Mark Oiruri Mose v R (2013) eKLR and Erick Onyango Odeng v R [2014] eKLR and submitted that the findings on the P3 form were that the complaiant’s hymen was torn, had lacerations on the vagina and anus. Equally, the the testimony of the complaiant indicate that the Appellant had forcefully defiled the minor who was his niece.
48. On identification, the Respondent submitted that the Appellant was no stranger to the complainant, she was his niece, and living with her and her other siblings and even called the Appellant by his name, Bernard. She could see, recognize and identify the Appellant well. The Respondent relied ont he case of Ogeto v R (2004) KLR 19.
49. On consanguinity, the Respondent submits that the complainant referred to the Appellant as Uncle Bernard and this relationship was corroborated by other prosecution witnesses.
50. On sentence, the Respondent submitted that Section 20(1) provides for up to a life sentence for victims below the age of 18. The complainant was 8 years old at the time of defilement and relied on the case of Francis Omironi v Uganda – Criminal Appeal No. 2 of 2000 and having proved that the complaiant was below 18 years, the sentence of life was a lawful sentwnce.
51. The Respondent submits that the Appellant was also found guilty of and convicted on Count III on deliberate transmission of HIV and submitted that the complainant had defiled her severally in the past which she did not report and the Appellant knew of his HIV status prior to committing the offence. Documents presented to Court proved that the Appellant knew of his status since November of 2008 and had attended a health facility over the same and submitted that Count II had been proved beyond reasonable doubt and the same facts were used to convict the Appellant on the rest of the counts under the Children Act.
52. The prosecution further submits that \considering the circumstances of the case, the age of the victim. Her mental status and the injuries suffered; which injuries were both physical, mental and long term emotional of being abused by an adult who was her uncle, a person she depended on for upkeep and security/safety; having been deprived of innocence and being exposed to sexual acts at a tender age of 8 years and having infected the complainant with a life threatening disease, the Respondent submitted that the life sentence was very reasonable. The Prosecution relied on the case of Misc. Cr. Appl. No. E014 of 2021 Rotike v R that the court still had the discretion even with provisions of the Sexual Offences Act. The prosecution further relied on the case of Joshua Gichui Mwangi and ISLA and submitted that the appeal be dismissed, the conviction and sentence be upheld.
Determination and analysis
53. I have perused the record of appeal, the charge sheet as well as the judgment of the learned Hon. Yator. I note that on the Amended Charge Sheet which amendment was on 17/10/2024, on Count I the Appellant was charged with incest contrary to Section 20(1) of the Sexual offences Act, No. 3 of 2006, particulars having been stated as
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