1. The Appellant, Benard Wanjala Wangila, was convicted after trial of incest contrary to Section 20(1) of the Sexual Offences Act, No 3 of 2006.
2. The particulars of the offence are that on 16/10/2022 the accused while at Lusokho Village in Bungoma North Sub County within Bungoma County intentionally touched the vagina of G. N. with his penis yet ke knew that G.W. was his daughter.
3. The Appellant 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.
4. The particulars of the offence are thar on 16/10/2022 the Appellant while at Lusokho Village in Bungoma North Sub County within Bungoma County intentionally caused his penis to touch the vagina of G.W. a child aged 10 years.
5. On 20/09/2023, the Appellant was found guilty of the main charge, convicted and sentenced to 40 years imprisonment.
6. Being dissatisfied with the conviction and the sentence, the Appellant lodged this appeal against both the conviction and the sentence vide an Amended Petition of Appeal dated 31/10/2025. The conviction and the sentence are being challenged on the following grounds that;
i. The learned trial magistrate erred in law and fact to establish that the prosecution did not prove the case beyond reasonable doubt despite glaring dilemma evidence on Section 124 of the Evidence Act.
ii. The learned trial magistrate erred in law and fact by failing to make a finding that the prosecution deliberately avoided to avail some key witnesses and evidence.
iii. The learned trial magistrate erred in law and fact by finding the penetration and identification proved to the required standards, even in the wake of flimsy and deliberately inadequate evidence by the prosecution
iv. The age of the victim (complainant) was not proved to the required standard that is ‘proof beyond reasonable doubt’ as required by law and that the sentence imposed was harsh, inhumane and illegal despite aggravating and no mitigating factors.
7. The Appellant urged this Court to allow the appeal, quash the conviction, set aside the sentence and be set at liberty or in the alternative, the sentence be reviewed to a least form of punishment and upon reduction, the appellant be enrolled for probation or community service order.
8. The appeal was canvassed by way of written submissions.
9. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and to give allowance for that. The well known case of Okeno vs Republic (1977) EA 32 which sets out that principle, has been referred to in several decisions of this Court and of the Court of Appeal.
10. A good point to start from would then be a recap of the evidence adduced at the trial court.
11. The trial court took the evidence of PW1, Hellen Wanjala who stated that on 16/10/2022 she was in her house with her children, including the complainant and at around 8:00pm, the Appellant, her husband, whom she had lived with for 15 years, came to the house and started beating the children. She left the house and went to his parents house. She stated that the d-light was on, recognized her husband and his voice. She told his parents that the Appellant was beating the children. She was advised to go back to her house and come back with the last born to spend the night at her in-laws house.
12. She took the last born who was 2 years old. One of her children informed her that the complainant was not in the house and did not know where she was only that the Appellant had left with the complainant and had ordered him to sleep. She informed her parents in-law and they started searching for the complainant together with others. She found the Appellant in the sugarcane plantation with the complainant.
13. She testified that she found the Appellant on top of the complainant who was undressed and was completely naked and he had removed his trouser and inner wear. She witnessed that the Appellant had inserted his penis into the vagina of the complainant and was in the course of having sex with the complainant. The search party had lit torches and were aimed at the complainant and the accused and he ran away into the sugarcane plantation.
14. She further testified that she could not find the complainant’s clothes but took her naked and the complainant was bleeding from her vagina and the complainant was complaining of pain in her vagina. The complainant said ‘I do not want to live here because father is not good, he inserted his thing here’ and pointed at her vagina. PW1 took the complainant to hospital the following day to Naitiri sub-county Hospital where she was examined and confirmed to have been defiled, there were injuries on her vagina and she was issued with treatment notes.
15. She produced a certificate of birth showing the date of birth as 23/06/2012. It had the mothers name as Hellen Wanjala Wekesa and father’s name as Bernard Wanjala. She then took the complainant to Mbakalo Police Station where she recorded her statement and the Appellant was arrested that Friday at their house. The police officers were accompanied by Ambrose and she was present when the Appellant was arrested. She confirmed that the complainant is the daughter to the Appellant and has lived with the Appellant and the daughter since the daughter’s birth. She further testified that the complainant had earlier complained that the Appellant had defiled her but she waited to catch the Appellant red handed. The first time she complained was in 2015 when she was 7 years old. That time she did not take action.
16. On cross examination she reiterated that she was the Appellant defile the complainant.
17. The trial court conducted voire dire on PW2 and the court noted that the witness is intelligent and understood the importance of telling the truth and effect of making an oath and admitted PW2 to sworn evidence.
18. PW2 testified that she previously lived with her mother and father Bernard Wanjala and she goes to Makunga Primary School and is in grade 2. On 16/10/2022 she was in the house with her mother and her siblings and it was at night. The Appellant came and started beating them including her mother. Her mother left and went to her grandmother’s house and the Appellant took her to the sugarcane plantation. She saw her father well.
19. The Appellant told her to lie down and remove her trouser and she remained naked. The Appellant also removed his trouser. She testified that the Appellant took his thing for urinating and inserted in her thing for urinating (she pointed at her vagina). She testified that she squeezed her with that thing. He squeezed her belly as he was on top of her. He told her “toa longi na ulale chini”. She felt pain when the Appellant squeezed her.
20. She heard her mother calling out to her and the Appellant was threatening to strangle her if she responded. Her grandparents and other people found her together with other people and he ran away. The people who came had torches. Her mother was one of the people who found her father doing bad manners on her. All the other people caught her father injuring her with his thing for urinating. She testified that she bled from her genitals and it was only the Appellant who did bad manners to her. She told them what the Appellant had done to her.
21. She testified that the Appellant was found at their home. The sugarcane planation is not far from their house. She was taken to hospital the following day and she was examined by the doctor. She testified that the Appellant had defiled her in the past when she was in grade 1and had told her mother. She told the police officers what the Appellant had done to her. She pointed at the Appellant and stated that she has lived with the Appellant since she was born. On cross examination she confirmed that the Appellant is her father.
22. PW3, Ambrose Jambika Mafumbo, a retired officer testified that on 21/10//2022 he heard rumours that the Appellant had raped his daughter and disappeared. On that day he heard noise at around 6:45 and on reaching the gate he met his granddaughter who is married at the home of the Appellant. He went to the Appellant’s home and found members of the public surrounding the Appellant’s house and people screaming. People came screaming that they wanted to torch the Appellant and found the accused standing on his bed. It is a single roomed house and could easily see what was happening. The Appellant had tied a dog chain on his neck. He asked for help and took the Appellant and PW1 to Mbakalo Police station for security purposes and recorded his statement. He identified the accused and said he has known him for 3 years.
23. On cross examination he stated that the accused was a neighbour and saved him on that day as he was about to be killed by people.
24. PW4, Mr. Harrison Mukoya appearing on behalf of Jentrix Barasa testified that he is a clinical officer of registreato No. 18791 and was at the time working at Naitiri Sub County Hospita. It was is 7th year of practice. He had a P3 form, Post Rape Care form, treatment notes and lab report for G. W., the complainant.
25. He testified that the complainant was brought by her mother with a history of having been defiled by her biological father. He testified that the child had stated that she was asked by her father to enter a sugar cane plantation and ordered her to lie down and defiled her. That was on 17/10/2022. On examination, her clothing was intact, small shy girl on genital examination, she had a normal female genitalia.
26. There was a tear on the left labia minora and the hymen was broken and it was freshly broken. The endnotes were reddened. She was taken through lab works and in all the tests that the urinalysis, HIV, VDRL, hemoglobin levels, there was nothing significant in all the tests they were all negative. All the examinations were done after 12 hours of the defilement.
27. The complainant was treated, given PEP for prevention of HIV and P2 to prevent any pregnancy and antibiotics to prevent any STIs and analgesics. The complainant was enrolled 3for continuous sessions of counseling. The degree of injury caused was classified as harm. On cross examination PW 4 confirmed that the Appellant was neither examined nor tested.
28. PW5, No. 259729 PCW Lynetter Okodoi attached to Mbakalo Police Station testified that she is the Investigating Officer and on 17/10/2022 a report was made by PW1 that on 16/10/22 at around 20:00hrs the complainant was defiled by her father namely Bernard Wanjala Wangila. It was minuted by Insp. Kowino, OCS Mbakalo. She commenced her investigations and obtained the certificate of birth of the minor. She recorded the statement of PW1 and PW2 and established that the Appellant, who was the complainant’s father, came home drunk on 16/10/22 ar around 20:00hrs and slapped the complainant on the head.
29. After taking supper, the Appellant started quarrelling PW1 who ran to her mother in-laws house leaving PW2 and her siblings in the house. The accused ordered one of the children, Maxwell to sleep and he took PW2 to the sugarcane plantation which was just near the house. On reaching the plantation, the Appellant ordered PW2 to strip naked and the Appellant had sexual intercourse with her. The Appellant inserted his penis into PW2’s vagina.
30. She further testified that when PW1 came, she did not find PW2 and the Appellant inside the house. The aunt to PW2 was shouting her name when the Appellant ran into the sugarcane plantation and PW2 came to her aunt holding her trouser and her pant on her hands.
31. PW2 was then taken to Naitiri Sub County Hospital where she was examined, treated and given medicine. She testified that she visited the scene of crime and found the Appellant’s house was a single room of 6 iron sheets. She dre a sketch plan of the scene. On 21/10/2022, the Appellant came back to his home where he was arrested by members of the public and escorted to Mbakalo Police Station by PW3 on a motor cycle.
32. She established the age of PW2 using her birth certificate which was indicated as 23/06/2012. She proceeded to produce the birth certificate. There was no cross examination.
33. Upon analysis of the evidence on record, the trial magistrate found that the prosecution had established a prima facie case and proceeded to place the Appellant on his defence. Upon Section 211 being explained to the Appellant he elected to give sworn evidence and denied the charges. There was no cross examination.
34. The learned magistrate analysed the evidence before the Court and established that the ingredients for a charge of incest had been met and proceeded to convict the Appellant and sentenced him to 40 years imprisonment.
35. The Appeal was canvassed by way of written submissions.
36. The Appellant challenges both conviction and sentence for the offence of incest under Section 20(1) of the Sexual Offences Act. He seeks quashing of the conviction, setting aside of the 40-year sentence, or in the alternative a reduction of sentence and consideration of a non-custodial sanction.
37. The Appellant argues that the trial court improperly relied on the complainant's evidence without sufficient corroboration. He contends that the court failed to record reasons for believing the complainant as required when relying on the testimony of a child witness. He further submits that there existed a family grudge between himself and the complainant's mother, creating a motive for false implication.
38. TheAppellant submits that the prosecution deliberately failed to call material witnesses whose evidence would have clarified the circumstances of the case. In particular, he points to:
a) The complainant's siblings who were allegedly present.
b) Other family members who were said to have witnessed events.
c) His own parents.
39. He relies on authorities such as Bukenya v Uganda to argue that an adverse inference ought to have been drawn against the prosecution for failing to call these witnesses. The appellant contends that penetration was not proved beyond reasonable doubt. His arguments include; The complainant had allegedly reported a prior incident of defilement several years earlier, the medical evidence showing a broken hymen was not conclusive proof that he committed the offence, the prosecution failed to eliminate other possible causes of the complainant's condition. He also argues that identification was not satisfactorily established and that the conviction rested largely on circumstantial evidence.
40. The Appellant submits that the complainant's age was not proved to the required standard, The birth certificate produced was not sufficiently authenticated, the prosecution failed to call the maker of the age-related documents.
41. Regarding sentence, he argues that the 40-year imprisonment term was harsh and excessive, The trial court failed to adequately consider mitigation and a lesser custodial sentence or a non-custodial sentence should have been considered.
42. The Appellant maintains that the prosecution failed to prove the case beyond reasonable doubt and that the conviction was unsafe. He therefore asks the High Court to allow the appeal and set him at liberty.
43. The State opposes the appeal and urges the High Court to uphold both conviction and sentence. The prosecution submits that age was established through; the complainant's testimony, the mother's testimony, medical evidence and the birth certificate produced as Exhibit 5. The State further submitted that the complainant was born on 23rd June 2012 and was approximately 10 years old at the time of the offence in October 2022. The respondent further argued that penetration was proved through; the complainant's evidence, medical findings recorded in the P3 form and clinical examination evidence. The State reliedd on authorities holding that even the slightest penetration is sufficient to prove the element of penetration and that rupture of the hymen is not a mandatory requirement.
44. The prosecution submits that there was no possibility of mistaken identity because; The Appellant was the complainant's biological father and had lived together in the same household. The complainant knew him well and recognized him and the identification was error free.
45. The respondent emphasizes that the offence charged was incest and that the evidence established that the complainant was the Appellant’s daughter and both the complainant and her mother testified to that relationship. The prosecution there fore submitted that the ingredient of close consanguinity was fully established.
46. The State submits that all ingredients of incest were proved beyond reasonable doubt, namely:
a) The complainant's age.
b) Penetration.
c) Identification of the appellant.
d) The father-daughter relationship.
47. The trial court therefore correctly convicted the appellant.
48. The Respondent argued that; the complainant was a child aged about 10 years, the appellant was her biological father and a person in a position of trust, the offence caused severe physical, psychological and emotional harm.
49. The prosecution submits that the 40-year sentence was justified given the aggravating circumstances and was within the law. It therefore asks this Court not to interfere with the sentence.
50. The Respondent maintains that the prosecution proved its case beyond reasonable doubt and prays that:
a) The appeal be dismissed in its entirety.
b) The conviction be upheld.
c) The sentence of 40 years' imprisonment be affirmed.
51. In compliance with the legal dictate to re-evaluate the evidence, I have taken time to read and consider the evidence as recorded at the trial court. In doing so, I have borne in mind that I neither saw nor heard the witnesses testify and I have given due allowance for that fact. I shall therefore rely wholly on what was recorded both handwritten and typed and in the event of any discrepancy, I shall rely on the handwritten text.
52. In addition, I have had due regard to the applicable statutory provisions, learned submissions by counsel for the state as well as the Appellant’s submissions and the case law cited.
53. I noted minor inconsistencies in the evidence of the investigating officer and that of PW1. The inconsistencies however do not disturb the core evidence of the act of incest and the corroborating evidence. The evidence points ou to the Appellant being found with the complainant in a sugarcane plantation, the complainant having being defiled by the Appellant and the date and time of the incident which go to the core of proving the case beyond reasonable doubt. That standard was not upset by the minor inconsistency.
54. After going through the evidence on record, the proceedings and the submissions tendered, The appeal essentially turns on four questions:
Whether the prosecution proved its case beyond reasonable doubt, including compliance with Section 124 of the Evidence Act
55. The Appellant contends that the trial court failed to properly apply the cautionary rule under Section 124 of the Evidence Act, which permits a court to convict on the uncorroborated evidence of a single witness in sexual offences, provided the court is satisfied as to the truth of the complaint and records its reason for so proceeding without corroboration.
56. This Court finds this ground to be without merit on the facts of this case. The evidence of PW2 was not uncorroborated. It was corroborated on the most material points by multiple independent sources. First, PW1 was an eyewitness who personally found the Appellant in the act of having sexual intercourse with the complainant in the sugarcane plantation. Her evidence of what she witnessed was direct, cogent and consistent. Second, the medical evidence of PW4 was powerfully corroborative: the fresh tear of the left labia minora, the freshly broken hymen and the reddened endnotes, all consistent with recent penetration, directly confirmed PW2's account. Third, the complainant's spontaneous outcry to PW1 immediately after the incident — "father is not good, he inserted his thing here", constitutes a first report, which this Court and the Court of Appeal have consistently recognised as corroborative material: see Mwangi v Republic [1984] KLR 595.
57. The Court of Appeal has affirmed that where a complainant's evidence is materially corroborated, the cautionary rule under Section 124, though not rendered irrelevant, is satisfied with greater ease: see George Kioji v Republic [2010] eKLR. In the present case, there is no reliance on the complainant's word alone. The trier of fact had before it the direct testimony of an eyewitness mother who personally observed the act, supported by clinical findings confirming fresh penetration. The concern underlying Section 124, the danger of a conviction resting solely on the word of a complainant whose evidence has not been tested by independent material, does not arise on these facts.
Whether the prosecution deliberately withheld key witnesses and evidence
13. The Appellant argues that the prosecution deliberately avoided calling key witnesses, thereby weakening its case to the prejudice of the accused.
14. This Court finds this ground to be vague and unsubstantiated. The Appellant does not identify in his submissions which specific witnesses were withheld or what evidence was deliberately suppressed. The prosecution called five witnesses, whose evidence collectively covered the events of the night of 16th October 2022, the medical examination, and the investigation. The investigating officer testified without contradiction and was not cross-examined. The birth certificate and medical documents were produced and admitted in evidence.
15. The law is clear that the prosecution is not obliged to call every conceivable witness so long as it calls sufficient witnesses to prove the charge beyond reasonable doubt: see Bukenya & Others v Uganda [1972] EA 549. An adverse inference from the failure to call a witness is only warranted where the evidence of that witness would have been material to an issue before the court and where there is no explanation for the omission: see Hussein Njoroge & 2 Others v Republic [2010] eKLR. No such showing has been made here.
Whether penetration and identification were proved to the required standard
15. The Appellant submits that the evidence of penetration was insufficient and that identification was not proved to the required standard.
16. On penetration, this Court finds the evidence overwhelming. PW2 testified in unambiguous language, consistent with her age and understanding, that the Appellant inserted his penis into her vagina. PW1 personally witnessed the Appellant on top of the naked complainant in the act of intercourse. PW4's clinical findings confirmed a freshly broken hymen and a fresh tear of the labia minora, consistent with penile penetration. The Court of Appeal confirmed in Felix Otieno Auma v Republic [2016] eKLR that medical evidence of a freshly broken hymen, consistent with the complainant's account of penetration, is sufficient corroboration of the act of penetration. Penetration was proved beyond reasonable doubt.
17. On identification, the Appellant is the father of the complainant and the husband of PW1. He is not a stranger who required identification under controlled conditions. Both PW1 and PW2 have lived with the Appellant since the complainant's birth. PW1 recognised the Appellant by sight, aided by torches carried by the search party and by his voice. PW2 identified her father throughout her testimony without equivocation and confirmed the identification on cross-examination. This was identification by recognition in the most reliable circumstances possible — a person known for years, at close range, with artificial lighting.
18. The Court of Appeal in Wamunga v Republic [1989] KLR 424 affirmed that where a witness is identifying a person well known to them, the dangers attending stranger identification do not apply with the same force and the evidence of recognition by a familiar person carries considerable weight.
Whether the age of the complainant was proved beyond reasonable doubt, and whether the sentence was harsh, inhumane and illegal
(i) Proof of Age
19. The Appellant submits that the age of the complainant was not proved to the required standard of beyond reasonable doubt. This Court disagrees. The prosecution produced the original certificate of birth of the complainant, indicating her date of birth as 23rd June 2012. The certificate was produced by PW1, who confirmed she is the mother named therein, alongside the Appellant who is named as the father. The certificate was further referred to and relied upon by PW5, the Investigating Officer, in the course of her investigations.
20. The Court of Appeal addressed the proof of age in sexual offences comprehensively in Kaingu alias Kasomo v Republic [2009] KLR and reiterated in Julius Kamau Mbugua v Republic [2010] eKLR that proof of age may be established by a birth certificate produced by a parent who witnessed the birth and registered the child, by medical assessment, or by the court's own observation of the child where documents are unavailable. In this case, a birth certificate was produced, in circumstances that leave no reasonable doubt as to its authenticity and the identity of the child to whom it refers. The complainant was born on 23rd June 2012; the offence occurred on 16th October 2022, when the complainant was 10 years old. Age was proved beyond reasonable doubt.
(ii) Sentence
20. On sentence, the Appellant argues that the 40 years imprisonment is harsh, inhumane and illegal. The Appellant was convicted of incest under Section 20(1) of the Sexual Offences Act. Under Section 20(3) of the Act, where the complainant is under the age of 18 years, the minimum sentence is 15 years imprisonment. There is no statutory maximum specified, and the Court retains discretion to impose a heavier sentence where the circumstances warrant.
21. On the question of whether the sentence is legal, 40 years imprisonment does not offend the statutory minimum. However, this Court must independently consider whether the sentence imposed is proportionate to the gravity of the offence, having regard to the principles set out in Ogolla s/o Owuor v Republic [1954] EACA 270 — that a sentence must be neither excessive nor insufficient, but commensurate with the gravity of the offence and the circumstances of the offender.
22. The aggravating features of this case are, however, exceptionally grave. The Appellant sexually violated his own biological daughter, a child aged just 10 years old. The act was premeditated. He first drove the mother out of the home by provoking a confrontation, then ordered the other children to sleep, before taking the complainant to a sugarcane plantation under cover of darkness. The complainant had complained of prior defilement by the Appellant as far back as 2015, when she was only 7 years old, a complaint PW1 regrettably did not act upon. The Appellant thus exploited over years the total vulnerability and complete trust of a child who was utterly dependent on him. He threatened to strangle the child to prevent her from calling for help during the act. The clinical officer confirmed fresh injuries, establishing that the penetration was forceful and caused the child pain and physical harm.
23. The Court of Appeal in Maingi & 5 Others v Republic [2022] KECA 614 (KLR) and in Bernard Kimani Gacheru v Republic [2002] eKLR has emphasised that where the offender is a person standing in a position of trust, authority and guardianship over the victim — as a parent stands over a child — the breach of that trust constitutes a significant aggravating factor warranting a sentence at or near the upper end of the available range. Sexual violence by a parent against a biological child of 10 years represents one of the most egregious categories of sexual offending known to law. This Court finds no basis to interfere with the sentence. The 40 years imprisonment is not disproportionate to the gravity of the conduct proved.
24. The Appellant gave sworn evidence denying the charges. He was not cross-examined. His bare denial stands against the direct eyewitness testimony of PW1, the testimony of PW2 who identified him as her father and described the acts in detail, the clinical findings of PW4 confirming fresh penetration, and the evidence of the Investigating Officer. A bare denial, unsupported by any explanation, alibi or corroborating defence witness, is of no evidential weight against a prosecution case as cogent and consistent as the one established before the trial court: see Sahali Swalehe Nyumbu v Republic [2014] eKLR where the Court of Appeal affirmed that a mere denial which does not dislodge or create a dent in the prosecution evidence cannot succeed as a defence.
Determination
25. Having carefully re-evaluated the evidence adduced before the trial court afresh, and having considered the Appellant's grounds of appeal and the applicable law, this Court is firmly satisfied that:
(i) The prosecution proved the identity of the Appellant beyond reasonable doubt, he was identified by recognition by persons who had lived with him for years;
(ii) The act of penetration was proved beyond reasonable doubt by the direct evidence of PW2, corroborated by the eyewitness evidence of PW1 and the clinical findings of PW4;
(iii) The prohibited degree of relationship, that the complainant is the biological daughter of the Appellant, was proved beyond reasonable doubt by the birth certificate, the testimony of PW1 and the co
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2. The particulars of the offence are that on 16/10/2022 the accused while at Lusokho Village in Bungoma North Sub County within Bungoma County intentionally touched the vagina of G. N. with his penis yet ke knew that G.W. was his daughter.
3. The Appellant 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.
4. The particulars of the offence are thar on 16/10/2022 the Appellant while at Lusokho Village in Bungoma North Sub County within Bungoma County intentionally caused his penis to touch the vagina of G.W. a child aged 10 years.
5. On 20/09/2023, the Appellant was found guilty of the main charge, convicted and sentenced to 40 years imprisonment.
6. Being dissatisfied with the conviction and the sentence, the Appellant lodged this appeal against both the conviction and the sentence vide an Amended Petition of Appeal dated 31/10/2025. The conviction and the sentence are being challenged on the following grounds that;
i. The learned trial magistrate erred in law and fact to establish that the prosecution did not prove the case beyond reasonable doubt despite glaring dilemma evidence on Section 124 of the Evidence Act.
ii. The learned trial magistrate erred in law and fact by failing to make a finding that the prosecution deliberately avoided to avail some key witnesses and evidence.
iii. The learned trial magistrate erred in law and fact by finding the penetration and identification proved to the required standards, even in the wake of flimsy and deliberately inadequate evidence by the prosecution
iv. The age of the victim (complainant) was not proved to the required standard that is ‘proof beyond reasonable doubt’ as required by law and that the sentence imposed was harsh, inhumane and illegal despite aggravating and no mitigating factors.
7. The Appellant urged this Court to allow the appeal, quash the conviction, set aside the sentence and be set at liberty or in the alternative, the sentence be reviewed to a least form of punishment and upon reduction, the appellant be enrolled for probation or community service order.
8. The appeal was canvassed by way of written submissions.
9. This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and to give allowance for that. The well known case of Okeno vs Republic (1977) EA 32 which sets out that principle, has been referred to in several decisions of this Court and of the Court of Appeal.
10. A good point to start from would then be a recap of the evidence adduced at the trial court.
11. The trial court took the evidence of PW1, Hellen Wanjala who stated that on 16/10/2022 she was in her house with her children, including the complainant and at around 8:00pm, the Appellant, her husband, whom she had lived with for 15 years, came to the house and started beating the children. She left the house and went to his parents house. She stated that the d-light was on, recognized her husband and his voice. She told his parents that the Appellant was beating the children. She was advised to go back to her house and come back with the last born to spend the night at her in-laws house.
12. She took the last born who was 2 years old. One of her children informed her that the complainant was not in the house and did not know where she was only that the Appellant had left with the complainant and had ordered him to sleep. She informed her parents in-law and they started searching for the complainant together with others. She found the Appellant in the sugarcane plantation with the complainant.
13. She testified that she found the Appellant on top of the complainant who was undressed and was completely naked and he had removed his trouser and inner wear. She witnessed that the Appellant had inserted his penis into the vagina of the complainant and was in the course of having sex with the complainant. The search party had lit torches and were aimed at the complainant and the accused and he ran away into the sugarcane plantation.
14. She further testified that she could not find the complainant’s clothes but took her naked and the complainant was bleeding from her vagina and the complainant was complaining of pain in her vagina. The complainant said ‘I do not want to live here because father is not good, he inserted his thing here’ and pointed at her vagina. PW1 took the complainant to hospital the following day to Naitiri sub-county Hospital where she was examined and confirmed to have been defiled, there were injuries on her vagina and she was issued with treatment notes.
15. She produced a certificate of birth showing the date of birth as 23/06/2012. It had the mothers name as Hellen Wanjala Wekesa and father’s name as Bernard Wanjala. She then took the complainant to Mbakalo Police Station where she recorded her statement and the Appellant was arrested that Friday at their house. The police officers were accompanied by Ambrose and she was present when the Appellant was arrested. She confirmed that the complainant is the daughter to the Appellant and has lived with the Appellant and the daughter since the daughter’s birth. She further testified that the complainant had earlier complained that the Appellant had defiled her but she waited to catch the Appellant red handed. The first time she complained was in 2015 when she was 7 years old. That time she did not take action.
16. On cross examination she reiterated that she was the Appellant defile the complainant.
17. The trial court conducted voire dire on PW2 and the court noted that the witness is intelligent and understood the importance of telling the truth and effect of making an oath and admitted PW2 to sworn evidence.
18. PW2 testified that she previously lived with her mother and father Bernard Wanjala and she goes to Makunga Primary School and is in grade 2. On 16/10/2022 she was in the house with her mother and her siblings and it was at night. The Appellant came and started beating them including her mother. Her mother left and went to her grandmother’s house and the Appellant took her to the sugarcane plantation. She saw her father well.
19. The Appellant told her to lie down and remove her trouser and she remained naked. The Appellant also removed his trouser. She testified that the Appellant took his thing for urinating and inserted in her thing for urinating (she pointed at her vagina). She testified that she squeezed her with that thing. He squeezed her belly as he was on top of her. He told her “toa longi na ulale chini”. She felt pain when the Appellant squeezed her.
20. She heard her mother calling out to her and the Appellant was threatening to strangle her if she responded. Her grandparents and other people found her together with other people and he ran away. The people who came had torches. Her mother was one of the people who found her father doing bad manners on her. All the other people caught her father injuring her with his thing for urinating. She testified that she bled from her genitals and it was only the Appellant who did bad manners to her. She told them what the Appellant had done to her.
21. She testified that the Appellant was found at their home. The sugarcane planation is not far from their house. She was taken to hospital the following day and she was examined by the doctor. She testified that the Appellant had defiled her in the past when she was in grade 1and had told her mother. She told the police officers what the Appellant had done to her. She pointed at the Appellant and stated that she has lived with the Appellant since she was born. On cross examination she confirmed that the Appellant is her father.
22. PW3, Ambrose Jambika Mafumbo, a retired officer testified that on 21/10//2022 he heard rumours that the Appellant had raped his daughter and disappeared. On that day he heard noise at around 6:45 and on reaching the gate he met his granddaughter who is married at the home of the Appellant. He went to the Appellant’s home and found members of the public surrounding the Appellant’s house and people screaming. People came screaming that they wanted to torch the Appellant and found the accused standing on his bed. It is a single roomed house and could easily see what was happening. The Appellant had tied a dog chain on his neck. He asked for help and took the Appellant and PW1 to Mbakalo Police station for security purposes and recorded his statement. He identified the accused and said he has known him for 3 years.
23. On cross examination he stated that the accused was a neighbour and saved him on that day as he was about to be killed by people.
24. PW4, Mr. Harrison Mukoya appearing on behalf of Jentrix Barasa testified that he is a clinical officer of registreato No. 18791 and was at the time working at Naitiri Sub County Hospita. It was is 7th year of practice. He had a P3 form, Post Rape Care form, treatment notes and lab report for G. W., the complainant.
25. He testified that the complainant was brought by her mother with a history of having been defiled by her biological father. He testified that the child had stated that she was asked by her father to enter a sugar cane plantation and ordered her to lie down and defiled her. That was on 17/10/2022. On examination, her clothing was intact, small shy girl on genital examination, she had a normal female genitalia.
26. There was a tear on the left labia minora and the hymen was broken and it was freshly broken. The endnotes were reddened. She was taken through lab works and in all the tests that the urinalysis, HIV, VDRL, hemoglobin levels, there was nothing significant in all the tests they were all negative. All the examinations were done after 12 hours of the defilement.
27. The complainant was treated, given PEP for prevention of HIV and P2 to prevent any pregnancy and antibiotics to prevent any STIs and analgesics. The complainant was enrolled 3for continuous sessions of counseling. The degree of injury caused was classified as harm. On cross examination PW 4 confirmed that the Appellant was neither examined nor tested.
28. PW5, No. 259729 PCW Lynetter Okodoi attached to Mbakalo Police Station testified that she is the Investigating Officer and on 17/10/2022 a report was made by PW1 that on 16/10/22 at around 20:00hrs the complainant was defiled by her father namely Bernard Wanjala Wangila. It was minuted by Insp. Kowino, OCS Mbakalo. She commenced her investigations and obtained the certificate of birth of the minor. She recorded the statement of PW1 and PW2 and established that the Appellant, who was the complainant’s father, came home drunk on 16/10/22 ar around 20:00hrs and slapped the complainant on the head.
29. After taking supper, the Appellant started quarrelling PW1 who ran to her mother in-laws house leaving PW2 and her siblings in the house. The accused ordered one of the children, Maxwell to sleep and he took PW2 to the sugarcane plantation which was just near the house. On reaching the plantation, the Appellant ordered PW2 to strip naked and the Appellant had sexual intercourse with her. The Appellant inserted his penis into PW2’s vagina.
30. She further testified that when PW1 came, she did not find PW2 and the Appellant inside the house. The aunt to PW2 was shouting her name when the Appellant ran into the sugarcane plantation and PW2 came to her aunt holding her trouser and her pant on her hands.
31. PW2 was then taken to Naitiri Sub County Hospital where she was examined, treated and given medicine. She testified that she visited the scene of crime and found the Appellant’s house was a single room of 6 iron sheets. She dre a sketch plan of the scene. On 21/10/2022, the Appellant came back to his home where he was arrested by members of the public and escorted to Mbakalo Police Station by PW3 on a motor cycle.
32. She established the age of PW2 using her birth certificate which was indicated as 23/06/2012. She proceeded to produce the birth certificate. There was no cross examination.
33. Upon analysis of the evidence on record, the trial magistrate found that the prosecution had established a prima facie case and proceeded to place the Appellant on his defence. Upon Section 211 being explained to the Appellant he elected to give sworn evidence and denied the charges. There was no cross examination.
34. The learned magistrate analysed the evidence before the Court and established that the ingredients for a charge of incest had been met and proceeded to convict the Appellant and sentenced him to 40 years imprisonment.
35. The Appeal was canvassed by way of written submissions.
36. The Appellant challenges both conviction and sentence for the offence of incest under Section 20(1) of the Sexual Offences Act. He seeks quashing of the conviction, setting aside of the 40-year sentence, or in the alternative a reduction of sentence and consideration of a non-custodial sanction.
37. The Appellant argues that the trial court improperly relied on the complainant's evidence without sufficient corroboration. He contends that the court failed to record reasons for believing the complainant as required when relying on the testimony of a child witness. He further submits that there existed a family grudge between himself and the complainant's mother, creating a motive for false implication.
38. TheAppellant submits that the prosecution deliberately failed to call material witnesses whose evidence would have clarified the circumstances of the case. In particular, he points to:
a) The complainant's siblings who were allegedly present.
b) Other family members who were said to have witnessed events.
c) His own parents.
39. He relies on authorities such as Bukenya v Uganda to argue that an adverse inference ought to have been drawn against the prosecution for failing to call these witnesses. The appellant contends that penetration was not proved beyond reasonable doubt. His arguments include; The complainant had allegedly reported a prior incident of defilement several years earlier, the medical evidence showing a broken hymen was not conclusive proof that he committed the offence, the prosecution failed to eliminate other possible causes of the complainant's condition. He also argues that identification was not satisfactorily established and that the conviction rested largely on circumstantial evidence.
40. The Appellant submits that the complainant's age was not proved to the required standard, The birth certificate produced was not sufficiently authenticated, the prosecution failed to call the maker of the age-related documents.
41. Regarding sentence, he argues that the 40-year imprisonment term was harsh and excessive, The trial court failed to adequately consider mitigation and a lesser custodial sentence or a non-custodial sentence should have been considered.
42. The Appellant maintains that the prosecution failed to prove the case beyond reasonable doubt and that the conviction was unsafe. He therefore asks the High Court to allow the appeal and set him at liberty.
43. The State opposes the appeal and urges the High Court to uphold both conviction and sentence. The prosecution submits that age was established through; the complainant's testimony, the mother's testimony, medical evidence and the birth certificate produced as Exhibit 5. The State further submitted that the complainant was born on 23rd June 2012 and was approximately 10 years old at the time of the offence in October 2022. The respondent further argued that penetration was proved through; the complainant's evidence, medical findings recorded in the P3 form and clinical examination evidence. The State reliedd on authorities holding that even the slightest penetration is sufficient to prove the element of penetration and that rupture of the hymen is not a mandatory requirement.
44. The prosecution submits that there was no possibility of mistaken identity because; The Appellant was the complainant's biological father and had lived together in the same household. The complainant knew him well and recognized him and the identification was error free.
45. The respondent emphasizes that the offence charged was incest and that the evidence established that the complainant was the Appellant’s daughter and both the complainant and her mother testified to that relationship. The prosecution there fore submitted that the ingredient of close consanguinity was fully established.
46. The State submits that all ingredients of incest were proved beyond reasonable doubt, namely:
a) The complainant's age.
b) Penetration.
c) Identification of the appellant.
d) The father-daughter relationship.
47. The trial court therefore correctly convicted the appellant.
48. The Respondent argued that; the complainant was a child aged about 10 years, the appellant was her biological father and a person in a position of trust, the offence caused severe physical, psychological and emotional harm.
49. The prosecution submits that the 40-year sentence was justified given the aggravating circumstances and was within the law. It therefore asks this Court not to interfere with the sentence.
50. The Respondent maintains that the prosecution proved its case beyond reasonable doubt and prays that:
a) The appeal be dismissed in its entirety.
b) The conviction be upheld.
c) The sentence of 40 years' imprisonment be affirmed.
51. In compliance with the legal dictate to re-evaluate the evidence, I have taken time to read and consider the evidence as recorded at the trial court. In doing so, I have borne in mind that I neither saw nor heard the witnesses testify and I have given due allowance for that fact. I shall therefore rely wholly on what was recorded both handwritten and typed and in the event of any discrepancy, I shall rely on the handwritten text.
52. In addition, I have had due regard to the applicable statutory provisions, learned submissions by counsel for the state as well as the Appellant’s submissions and the case law cited.
53. I noted minor inconsistencies in the evidence of the investigating officer and that of PW1. The inconsistencies however do not disturb the core evidence of the act of incest and the corroborating evidence. The evidence points ou to the Appellant being found with the complainant in a sugarcane plantation, the complainant having being defiled by the Appellant and the date and time of the incident which go to the core of proving the case beyond reasonable doubt. That standard was not upset by the minor inconsistency.
54. After going through the evidence on record, the proceedings and the submissions tendered, The appeal essentially turns on four questions:
Whether the prosecution proved its case beyond reasonable doubt, including compliance with Section 124 of the Evidence Act
55. The Appellant contends that the trial court failed to properly apply the cautionary rule under Section 124 of the Evidence Act, which permits a court to convict on the uncorroborated evidence of a single witness in sexual offences, provided the court is satisfied as to the truth of the complaint and records its reason for so proceeding without corroboration.
56. This Court finds this ground to be without merit on the facts of this case. The evidence of PW2 was not uncorroborated. It was corroborated on the most material points by multiple independent sources. First, PW1 was an eyewitness who personally found the Appellant in the act of having sexual intercourse with the complainant in the sugarcane plantation. Her evidence of what she witnessed was direct, cogent and consistent. Second, the medical evidence of PW4 was powerfully corroborative: the fresh tear of the left labia minora, the freshly broken hymen and the reddened endnotes, all consistent with recent penetration, directly confirmed PW2's account. Third, the complainant's spontaneous outcry to PW1 immediately after the incident — "father is not good, he inserted his thing here", constitutes a first report, which this Court and the Court of Appeal have consistently recognised as corroborative material: see Mwangi v Republic [1984] KLR 595.
57. The Court of Appeal has affirmed that where a complainant's evidence is materially corroborated, the cautionary rule under Section 124, though not rendered irrelevant, is satisfied with greater ease: see George Kioji v Republic [2010] eKLR. In the present case, there is no reliance on the complainant's word alone. The trier of fact had before it the direct testimony of an eyewitness mother who personally observed the act, supported by clinical findings confirming fresh penetration. The concern underlying Section 124, the danger of a conviction resting solely on the word of a complainant whose evidence has not been tested by independent material, does not arise on these facts.
Whether the prosecution deliberately withheld key witnesses and evidence
13. The Appellant argues that the prosecution deliberately avoided calling key witnesses, thereby weakening its case to the prejudice of the accused.
14. This Court finds this ground to be vague and unsubstantiated. The Appellant does not identify in his submissions which specific witnesses were withheld or what evidence was deliberately suppressed. The prosecution called five witnesses, whose evidence collectively covered the events of the night of 16th October 2022, the medical examination, and the investigation. The investigating officer testified without contradiction and was not cross-examined. The birth certificate and medical documents were produced and admitted in evidence.
15. The law is clear that the prosecution is not obliged to call every conceivable witness so long as it calls sufficient witnesses to prove the charge beyond reasonable doubt: see Bukenya & Others v Uganda [1972] EA 549. An adverse inference from the failure to call a witness is only warranted where the evidence of that witness would have been material to an issue before the court and where there is no explanation for the omission: see Hussein Njoroge & 2 Others v Republic [2010] eKLR. No such showing has been made here.
Whether penetration and identification were proved to the required standard
15. The Appellant submits that the evidence of penetration was insufficient and that identification was not proved to the required standard.
16. On penetration, this Court finds the evidence overwhelming. PW2 testified in unambiguous language, consistent with her age and understanding, that the Appellant inserted his penis into her vagina. PW1 personally witnessed the Appellant on top of the naked complainant in the act of intercourse. PW4's clinical findings confirmed a freshly broken hymen and a fresh tear of the labia minora, consistent with penile penetration. The Court of Appeal confirmed in Felix Otieno Auma v Republic [2016] eKLR that medical evidence of a freshly broken hymen, consistent with the complainant's account of penetration, is sufficient corroboration of the act of penetration. Penetration was proved beyond reasonable doubt.
17. On identification, the Appellant is the father of the complainant and the husband of PW1. He is not a stranger who required identification under controlled conditions. Both PW1 and PW2 have lived with the Appellant since the complainant's birth. PW1 recognised the Appellant by sight, aided by torches carried by the search party and by his voice. PW2 identified her father throughout her testimony without equivocation and confirmed the identification on cross-examination. This was identification by recognition in the most reliable circumstances possible — a person known for years, at close range, with artificial lighting.
18. The Court of Appeal in Wamunga v Republic [1989] KLR 424 affirmed that where a witness is identifying a person well known to them, the dangers attending stranger identification do not apply with the same force and the evidence of recognition by a familiar person carries considerable weight.
Whether the age of the complainant was proved beyond reasonable doubt, and whether the sentence was harsh, inhumane and illegal
(i) Proof of Age
19. The Appellant submits that the age of the complainant was not proved to the required standard of beyond reasonable doubt. This Court disagrees. The prosecution produced the original certificate of birth of the complainant, indicating her date of birth as 23rd June 2012. The certificate was produced by PW1, who confirmed she is the mother named therein, alongside the Appellant who is named as the father. The certificate was further referred to and relied upon by PW5, the Investigating Officer, in the course of her investigations.
20. The Court of Appeal addressed the proof of age in sexual offences comprehensively in Kaingu alias Kasomo v Republic [2009] KLR and reiterated in Julius Kamau Mbugua v Republic [2010] eKLR that proof of age may be established by a birth certificate produced by a parent who witnessed the birth and registered the child, by medical assessment, or by the court's own observation of the child where documents are unavailable. In this case, a birth certificate was produced, in circumstances that leave no reasonable doubt as to its authenticity and the identity of the child to whom it refers. The complainant was born on 23rd June 2012; the offence occurred on 16th October 2022, when the complainant was 10 years old. Age was proved beyond reasonable doubt.
(ii) Sentence
20. On sentence, the Appellant argues that the 40 years imprisonment is harsh, inhumane and illegal. The Appellant was convicted of incest under Section 20(1) of the Sexual Offences Act. Under Section 20(3) of the Act, where the complainant is under the age of 18 years, the minimum sentence is 15 years imprisonment. There is no statutory maximum specified, and the Court retains discretion to impose a heavier sentence where the circumstances warrant.
21. On the question of whether the sentence is legal, 40 years imprisonment does not offend the statutory minimum. However, this Court must independently consider whether the sentence imposed is proportionate to the gravity of the offence, having regard to the principles set out in Ogolla s/o Owuor v Republic [1954] EACA 270 — that a sentence must be neither excessive nor insufficient, but commensurate with the gravity of the offence and the circumstances of the offender.
22. The aggravating features of this case are, however, exceptionally grave. The Appellant sexually violated his own biological daughter, a child aged just 10 years old. The act was premeditated. He first drove the mother out of the home by provoking a confrontation, then ordered the other children to sleep, before taking the complainant to a sugarcane plantation under cover of darkness. The complainant had complained of prior defilement by the Appellant as far back as 2015, when she was only 7 years old, a complaint PW1 regrettably did not act upon. The Appellant thus exploited over years the total vulnerability and complete trust of a child who was utterly dependent on him. He threatened to strangle the child to prevent her from calling for help during the act. The clinical officer confirmed fresh injuries, establishing that the penetration was forceful and caused the child pain and physical harm.
23. The Court of Appeal in Maingi & 5 Others v Republic [2022] KECA 614 (KLR) and in Bernard Kimani Gacheru v Republic [2002] eKLR has emphasised that where the offender is a person standing in a position of trust, authority and guardianship over the victim — as a parent stands over a child — the breach of that trust constitutes a significant aggravating factor warranting a sentence at or near the upper end of the available range. Sexual violence by a parent against a biological child of 10 years represents one of the most egregious categories of sexual offending known to law. This Court finds no basis to interfere with the sentence. The 40 years imprisonment is not disproportionate to the gravity of the conduct proved.
24. The Appellant gave sworn evidence denying the charges. He was not cross-examined. His bare denial stands against the direct eyewitness testimony of PW1, the testimony of PW2 who identified him as her father and described the acts in detail, the clinical findings of PW4 confirming fresh penetration, and the evidence of the Investigating Officer. A bare denial, unsupported by any explanation, alibi or corroborating defence witness, is of no evidential weight against a prosecution case as cogent and consistent as the one established before the trial court: see Sahali Swalehe Nyumbu v Republic [2014] eKLR where the Court of Appeal affirmed that a mere denial which does not dislodge or create a dent in the prosecution evidence cannot succeed as a defence.
Determination
25. Having carefully re-evaluated the evidence adduced before the trial court afresh, and having considered the Appellant's grounds of appeal and the applicable law, this Court is firmly satisfied that:
(i) The prosecution proved the identity of the Appellant beyond reasonable doubt, he was identified by recognition by persons who had lived with him for years;
(ii) The act of penetration was proved beyond reasonable doubt by the direct evidence of PW2, corroborated by the eyewitness evidence of PW1 and the clinical findings of PW4;
(iii) The prohibited degree of relationship, that the complainant is the biological daughter of the Appellant, was proved beyond reasonable doubt by the birth certificate, the testimony of PW1 and the co
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