REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NUMBER E037 OF 2022
BENJAMIN MUTUA MUTISO.................................................................APPELLANT
-VERSUS-
REPUBLIC........................................................................................RESPONDENT
(Appeal Arising from judgment and sentence delivered by Hon. M. E. Analo (RM) on 15th September 2022 in Criminal Case Sexual Offence No. S.O 72 of 2019 Machakos Law Courts)
JUDGEMENT
Introduction
1. The Appellant Benjamin Mutua Mutiso was charged with two counts of incest.
2. Count I charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 25th day of November 2019 at around 20:00hrs at Ngalalia village, Ngiini Sub Location, Kathiani Sub-County within Machakos County the Appellant herein intentionally and unlawfully caused his penis to penetrate the vagina of K.M a girl aged 15 years who was to his knowledge his daughter in violation of Section 20(1) of the Sexual Offence Act No. 3 of 2006.
3. Count 2 charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 23rd day of November 2019 at around 20:00hrs at Ngalalia village, Ngiini Sub Location, Kathiani sub county within Machakos County the Appellant herein intentionally and unlawfully caused his penis to penetrate the vagina of W.M a girl aged 11 years who was to his knowledge his daughter in violation of section 20(1) of the Sexual Offence Act No. 3 of 2006.
4. The Appellant pleaded not guilty to the two charges and the alternative charges and the matter was set down for hearing.
5. During trial, the prosecution called six witnesses in proving its case. The Appellant was placed on his defence. He gave sworn evidence and did not call any witnesses to support his case. The trial magistrate did consider all the evidence adduced and found the Appellant guilty of the offence of incest and convicted him under Section 215 of the criminal procedure code. The Appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act and sentenced to 30 years on 11th May 2023.
Petition of appeal
6. Being dissatisfied with the decision of the trial court, the Appellant lodged the instant appeal against both the conviction and sentence. The Appellant has raised two grounds of appeal in his undated petition of appeal as follows:
i. THAT the learned trial magistrate erred in both fact and law by convicting me in evidence that didn't meet the minimum threshold to uphold a conviction.
ii. THAT the learned trial magistrate erred in both fact and law by not considering his sworn defence.
7. The prosecution opposes the instant appeal and submits that the trial court properly evaluated the evidence and came to the right conclusion.
The trial
The prosecution’s case
8. PWI- R.M testified to the effect that the accused person herein is his father. She noted that in 2019 person herein did bad manners. She testified that the Appellant removed her clothes and also removed his cloths and inserted his penis into her vagina. She noted that accused that on 3 occasions.
9. She testified that on the 1st instance, they were at home with her sister WM and their mother had gone to visit her parents whereof the Appellant send her sister Wanjiku Mutiso to the shop whereof she remained at home whereby the accused person got hold of her and took her to his bed in his bedroom whereof he removed her trouser and panty and then made her to lie on the his bed thereby he removed his clothes and placed his penis vagina. PWI noted that thereafter the Appellant told her to go and wash her clothes. She further stated that the said incident occurred in the evening.
10. PWI stated that the said incident occurred on 25.11.2019. She stated that she did not call for help because the Appellant closed her mouth using his hand. She stated that she told her sister what had transpired.
She testified that again on another date when her mother was still at her parents, the Appellant came to the house when she they were sleeping with her sister WM in their bedroom and picked her and took her to his bed and removed clothes together with her panty and inserted his penis into her vagina. She stated that the said second incident occurred some days after the first incident.
11. PWI further testified that on the third occasion, her mother had gone to attend a burial whereof the Appellant came back in the evening and found her sister sleeping. He got hold of PWI and took her to his bed where he removed her clothes together with her panty and also, he removed his clothes and he then inserted his penis into her vagina. PWI stated that when her mother came back, she told her what had transpired whereof a report was made to Ngoleni police post thereafter they were referred to Kathiani police station where they were issued with a P3 Form and referred to Kathiani Hospital for treatment and the P3 Form and PRC Forms were filled. She stated that her sister was also given a PRC Form and the P3 Form.
12. In cross examination, PW1 noted that the 1st incident occurred on 25.11.2019 and the 2nd incident occurred on 26.11.2019. she stated that on 27.11.2019 they told their mother what had transpired.
13. PW2-T.W testified to the effect that she was 13 years old. She stated that she used to reside with PW1 with her mother PW3 and their father the Appellant.
PW2 stated that in 2019 her mother together with her sister went to Kathiani and she was left at home with the Appellant who is also her father. She testified that, that night her mother did not come back home hence she went to sleep later the Appellant came from his room into the room where she was sleeping. She stated that the Appellant then removed her dress together with her panty and inserted his penis into her vagina. She stated that she did not scream because the Appellant threatened to hit her.
14. She further stated that on 23.11.2019, again her mother had gone to her parents' home and her sister PW1 was sent to her grandmother by the Appellant and on that night, the Appellant called her to his bedroom and caused her to sleep on his bed where he removed her clothes and also removed his clothes then inserted his penis into her vagina. She did not call for help because the Appellant closed her mouth with a piece of clothe. That when the Appellant had her sister knocking on the door he put on his clothes and went to open the door. She also stated that she did not tell her sister what had transpired until the following day is when she told her what had transpired the previous day and her sister also disclosed that the Appellant had done the same thing to her that is when they both agreed to tell their mother what had transpired.
15. PW2 stated that her mother then reported the incident to the area chief and thereafter they reported the incident to Kathiani police station. They were then treated at Kathiani Hospital and PRC and P3 Forms were issued to that effect.
16. PW3- Faith Wairimu testified to the effect that the Appellant herein was her husband. She stated that both PW1 and PW2 are her daughters. She produced Immunizations Cards to that effect. She stated that on 24/11/2019, the Appellant had sexual intercourse with the said daughters when she had gone to work. She stated that it was PW1 who informed her what had transpired. She also stated that there is a time she had gone to Olkalau and PW2 told her that the Appellant used to carry her to his bed then they would have sexual intercourse. She stated that she reported the incident to Kathiani police station and later they went to Kathiani hospital for treatment and the minors were then taken to children’s home. She further stated that at the hospital PRC Forms were issued for the two minors and P3 Forms were also filled.
17. On cross examination, PW3 admitted that it is the Appellant who had been taking care of the PW1 and PW2 since when they were 1 and 3 months old. She stated that she went to Olkalau after they had a disagreement with the Appellant. She also stated that they have had disagreements with the Appellant on several occasions. She stated that the disagreements have been with regard to the minors.
18. PW4 Dr. Katua Daniel testified to the effect that she had the two P3 Forms for the two minors herein. PW1 was aged 15 years. She stated that the said minor was brought to the facility on the allegations of having been defiled by his father on 26.11.2019. He stated that upon examination it was noted that the hymen was torn; vaginal walls had bruises; labia minora and Majora were normal. He stated that there was foul smell and there was also vaginal discharge.
He thus produced the PRC Form and the P3 Form for PW1.
19. PW4 also stated that he had the P3 Form for PW2 aged 11 years. He stated that PW2 was brought to the facility with a history of having been defiled by her father on 24/11/2029. He stated that the hymen of the victim was torn and her vaginal wall had perforations and there was a foul smell from the vagina. He produced the P3Form and PRC Form for the said minor as exhibit.
20. On cross examination, PW4 stated that he was not the one who attended to the minors herein. He also stated that the victim had stayed for 2 days before going to the hospital. The Examining doctor was one Sandra Kituku. He stated that hymen had been destroyed approximately 2 days before visiting the hospital. He also noted that the minors had STD infections.
21. PW5 testified to the effect that he was the Investigating officer of the instant case. He stated that a report of defilement of the two minors herein was made to the station whereof P3 Forms were issued. She stated that witness statements of the various witnesses were recorded and the Appellant was arrested and charged with the instant charges.
Defence case
22. Upon the Appellant being put to his defence he gave sworn statement to the effect that at the time the incident occurred he was not at home but at Ngoleni. He also stated that he was not in good terms with his wife, the mother to the minors herein. He reiterated that he did not commit the offence.
In cross examination the Appellant stated that when his wife was not around the victims herein used to sleep with their grandmother. He thus urged the court to discharge him. He also confirmed that the said grand mother had not been called to testify.
Analysis and Determination
23. The appeal was directed to be canvassed by way of written submissions. The Appellant’s submissions are dated 24/9/2024 while the Respondent’s submissions are dated 20/02/2025.
24. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -
“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.
25. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
26. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-
“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”
27. Having considered the lower court record, the grounds of appeal and the submissions of the parties, I find the following as issues for determination;
a. Whether the prosecution proved the case beyond reasonable doubt
b. Whether the sentence should be interfered with.
28. It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
29. In this case, the Appellant was charged and sentenced under Section 20 (1) of the Sexual Offences Act which provide as follows:
(1) “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
30. The ingredients for the offence of incest can be summarized as follows;
a. Proof of the age of the victim.
b. Proof that the offender is a relative of the victim,
c. Proof of penetration or indecent act
d. proper identification of the perpetrator.
a. Proof of the age of the victim.
31. On the ingredient of age of minority, the incident happened on diverse dates in November 2019. PWI testified and stated that she was aged 16 years, born in 2004 and in Class 7. PW2 testified and stated that she was aged 13 years old and in Class 6. PW3 stated that PWI was born in 2004 and produced clinic Immunization Card as PExt.5. PW3. She also stated that PW2 was born in 2008 and produced her clinic Immunization Card as PExt.6. It is thus confirmed that at the time of the incident the complainants were 15 years and II years of age respectively. I find that the ingredient of age of minority was proved by the prosecution.
b. Proof that the offender is a relative of the victim.
32. PW I and PW2 confirmed that they lived together with the Appellant and their mother PW3. They further stated that when the mother left them at home they would stay with the Appellant and he would sleep in his room and the victims would sleep in the sitting room. PW3 confirmed that the Appellant was her husband. Further that PW I and PW 2 stayed at a children's home so as to protect them and take them away from the scene of the incident which was their home. In his defence the Appellant also confirmed that he prepared meals for the victims severally at their home and refers to them as his daughters/children.
33. Section 22 of the Sexual Offences Act provides the test of relationship as:
l. In cases of the offence of incest, brother and sister includes half brother, half sister and adoptive brother and adoptive sister and father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.
2 In this Act-
a. "uncle" means the brother of a person's parent and "aunt" has a corresponding meaning
b. "nephew" means the child of a person 's brother or sister and “niece” has a corresponding meaning
c. "half-brother " means a brother who shares only one parent with another
d. "half-sister" means a sister who shares only one parent with another; and
e. "adoptive brother' means a brother who is related to another through adoption and "adoptive sister " has a corresponding meaning
3. An accused person shall be presumed, unless the contrary is proved to have had knowledge, al the time of the alleged offence, of the relationship existing between him or her and the other party 10 the incest.
34. The complainants were PW3 daughters. They lived with the Appellant and PW3 in the same house. Therefore, the evidence on relationship between the complainants and the Appellant is water tight.
c. Proof of penetration or indecent act
35. On the issue of penetration, the same is defined in Section 2 of the Sexual Offences Act as;
“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
36. PWI stated that she resided with her mother, sister, brother and Appellant who she referred to as dad. She stated that in 2019 the Appellant did bad manners to her. The Appellant removed her clothes and his clothes and inserted his penis in her private part. PWI state the Appellant defiled her on three occasions. On the three occasions, PWI stated the Appellant would take her to his bed and remove his clothes and her clothes and insert his penis into her vagina. PW2 also testified that the Appellant defiled her. She stated that she used to live with her mother, sister, brother and Appellant. She stated that the Appellant went to the sitting room where she was sleeping and removed her panty and inserted his penis into her vagina. The second time he defiled her in his bedroom. PW2 informed her sister PWI what had been happening and her sister PWI also told her that the Appellant had defiled her as well. PW3 was the mother to the two victims PW I and PW2. She indicates that her daughters PWI and PW2 informed her that their father the Appellant had defiled them. She reported the matter to the police station.
37. PW4 was the medical doctor who corroborated the evidence by PW I and PW2. For PWI upon examination and finding that the hymen was torn, the vaginal wall was bruised and the probable weapon was penile penetration. For PW2 PW4 indicated upon examination and finding that the hymen was torn, labia majora and minora were normal and the vagina wall was perforated. PW4 made reference to the P3 Form and PRC forms produced as PExt.l, PExt.3, PExt.2 and PExt.4. For PW I then cross examination PW4 stated that conclusion was that the minors had been defiled and that the hymen had been destroyed approximately 2 days before visiting the hospital. He also stated in cross examination that the minors had STD infections.
38. The evidence of PW I and PW2 is consistent. The evidence of the complainants PW I and PW2 is corroborated by the PW4. The medical documents prove that there was penetration. The evidence on penetration was therefore solid and proved.
d. proper identification of the perpetrator.
39. PWI and PW2 all testified that they lived with the Appellant in the same house. They further stated that the Appellant was their dad/father. He is well known to them. PW3 indicated that the Appellant was her husband and the two victims were their daughters. In cross examination PW3 stated that the Appellant would take care of the girls when she was away. The identity of the Appellant was by way of recognition by the Complainants and their mother and the Appellant’s wife which is the best form of identification. The ingredient of identity was proved beyond reasonable doubt.
40. Upon re-analysing the totality of the evidence presented and re-evaluating the Appellants defence, there is no doubt that the prosecution proved their case beyond reasonable doubt as to the offence of incest. The upshot is that the appeal as against conviction under the offence of incest therefore fails.
41. As regards the sentence, this Court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated as follows:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
42. In Maingi & 5 others Vs. Director of Public Prosecution & Another (Petition No. E117 of 2021) (2022) KEHC 13118 (KLR) the Petitioners who were convicts serving offences under Sexual Offences Act No 3 of 2006 sued the Attorney General and sought for declaration that the mandatory nature of sentence under the Sexual Offences Act were unconstitutional as it fettered the discretion of Judges and Magistrates in meting out sentence. Justice G.V Odunga vide his considered judgment dated 17th May, 2022 did find that –
“to the extent that the Sexual Offences Act prescribed minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentence fall foul of Article 28 of the Constitution. However, the courts are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be mandatory minimum prescribed sentences.”
43. The legislation that was in force before commencement of the Constitution of Kenya 2010 must be considered with adaptation, qualification and exception when it comes to the mandatory minimum sentence and in particular when the said sentences do not take into account the dignity of the individual as mandated under Article 27 of the Constitution, 2010 and as appreciated in the Francis Muruatetu case and applied by courts in several cases. See Christopher Ochieng V Republic Kisumu CA Criminal Appeal No 202 of 2011 and Jared Koita Injiri V Republic Kisumu CA Criminal Appeal No 92 0f 2104.
44. Sentencing is a discretion of the court of law but the court should look at the facts and the circumstances in the entirety so as to arrive at an appropriate sentence. The Court of Appeal in Thomas Mwamba Wanyi Vs Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Antony Pereira Vs The state of Maharastra at paragraph 70 – 71 where the court held;
“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate and proportionate sentences commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles; twin objective of sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of crime, motive for the crime, nature of the offence and all the attendant circumstances. The principle of proportionality by sentencing a crime done is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment must bear relevant influence in determining the sentence of the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
45. In Francis Karioki Muruatetu & another Vs Republic the Supreme Court did provide guidelines and mitigating factors in re-hearing of sentence. The Judiciary sentencing policy guidelines list the objective of Sentencing At. Paragraph 4.1 they include the gravity of the offence, the threat of violence against the victim, the nature and type of weapon used by the applicants to inflict harm.
46. Having considered the sentence meted out and circumstances of this case and also having considered that the said Section 20(1) of the Sexual offences Act No. 3 of 2006 fettered the courts discretion in sentencing, I do find that the sentence was within the law given a reasonable proportionality between the sentence passed and the crime committed. In Republic vs Scott (2005) NSWCCA 152 Howie J Grove & Barn J J it was stated;
“There is a fundamental and immutable principle of sentencing, that is, sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed… one of the purposes of punishment is to ensure that an offender is adequately punished… a further purpose is to denounce the conduct of the offender.
47. The upshot is that, I hereby find that this appeal lacks merit and is thus dismissed in its entirety.
48. Right of Appeal 14 days.
49. It is so ordered.
JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 29TH MAY 2025.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH MAY 2025
In the presence of:
At Kamiti Max. Prison............... for Applicant
Ms. Agatha............. for Respondent
Wambua............ Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NUMBER E037 OF 2022
BENJAMIN MUTUA MUTISO.................................................................APPELLANT
-VERSUS-
REPUBLIC........................................................................................RESPONDENT
(Appeal Arising from judgment and sentence delivered by Hon. M. E. Analo (RM) on 15th September 2022 in Criminal Case Sexual Offence No. S.O 72 of 2019 Machakos Law Courts)
JUDGEMENT
Introduction
1. The Appellant Benjamin Mutua Mutiso was charged with two counts of incest.
2. Count I charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 25th day of November 2019 at around 20:00hrs at Ngalalia village, Ngiini Sub Location, Kathiani Sub-County within Machakos County the Appellant herein intentionally and unlawfully caused his penis to penetrate the vagina of K.M a girl aged 15 years who was to his knowledge his daughter in violation of Section 20(1) of the Sexual Offence Act No. 3 of 2006.
3. Count 2 charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge are that on 23rd day of November 2019 at around 20:00hrs at Ngalalia village, Ngiini Sub Location, Kathiani sub county within Machakos County the Appellant herein intentionally and unlawfully caused his penis to penetrate the vagina of W.M a girl aged 11 years who was to his knowledge his daughter in violation of section 20(1) of the Sexual Offence Act No. 3 of 2006.
4. The Appellant pleaded not guilty to the two charges and the alternative charges and the matter was set down for hearing.
5. During trial, the prosecution called six witnesses in proving its case. The Appellant was placed on his defence. He gave sworn evidence and did not call any witnesses to support his case. The trial magistrate did consider all the evidence adduced and found the Appellant guilty of the offence of incest and convicted him under Section 215 of the criminal procedure code. The Appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act and sentenced to 30 years on 11th May 2023.
Petition of appeal
6. Being dissatisfied with the decision of the trial court, the Appellant lodged the instant appeal against both the conviction and sentence. The Appellant has raised two grounds of appeal in his undated petition of appeal as follows:
i. THAT the learned trial magistrate erred in both fact and law by convicting me in evidence that didn't meet the minimum threshold to uphold a conviction.
ii. THAT the learned trial magistrate erred in both fact and law by not considering his sworn defence.
7. The prosecution opposes the instant appeal and submits that the trial court properly evaluated the evidence and came to the right conclusion.
The trial
The prosecution’s case
8. PWI- R.M testified to the effect that the accused person herein is his father. She noted that in 2019 person herein did bad manners. She testified that the Appellant removed her clothes and also removed his cloths and inserted his penis into her vagina. She noted that accused that on 3 occasions.
9. She testified that on the 1st instance, they were at home with her sister WM and their mother had gone to visit her parents whereof the Appellant send her sister Wanjiku Mutiso to the shop whereof she remained at home whereby the accused person got hold of her and took her to his bed in his bedroom whereof he removed her trouser and panty and then made her to lie on the his bed thereby he removed his clothes and placed his penis vagina. PWI noted that thereafter the Appellant told her to go and wash her clothes. She further stated that the said incident occurred in the evening.
10. PWI stated that the said incident occurred on 25.11.2019. She stated that she did not call for help because the Appellant closed her mouth using his hand. She stated that she told her sister what had transpired.
She testified that again on another date when her mother was still at her parents, the Appellant came to the house when she they were sleeping with her sister WM in their bedroom and picked her and took her to his bed and removed clothes together with her panty and inserted his penis into her vagina. She stated that the said second incident occurred some days after the first incident.
11. PWI further testified that on the third occasion, her mother had gone to attend a burial whereof the Appellant came back in the evening and found her sister sleeping. He got hold of PWI and took her to his bed where he removed her clothes together with her panty and also, he removed his clothes and he then inserted his penis into her vagina. PWI stated that when her mother came back, she told her what had transpired whereof a report was made to Ngoleni police post thereafter they were referred to Kathiani police station where they were issued with a P3 Form and referred to Kathiani Hospital for treatment and the P3 Form and PRC Forms were filled. She stated that her sister was also given a PRC Form and the P3 Form.
12. In cross examination, PW1 noted that the 1st incident occurred on 25.11.2019 and the 2nd incident occurred on 26.11.2019. she stated that on 27.11.2019 they told their mother what had transpired.
13. PW2-T.W testified to the effect that she was 13 years old. She stated that she used to reside with PW1 with her mother PW3 and their father the Appellant.
PW2 stated that in 2019 her mother together with her sister went to Kathiani and she was left at home with the Appellant who is also her father. She testified that, that night her mother did not come back home hence she went to sleep later the Appellant came from his room into the room where she was sleeping. She stated that the Appellant then removed her dress together with her panty and inserted his penis into her vagina. She stated that she did not scream because the Appellant threatened to hit her.
14. She further stated that on 23.11.2019, again her mother had gone to her parents' home and her sister PW1 was sent to her grandmother by the Appellant and on that night, the Appellant called her to his bedroom and caused her to sleep on his bed where he removed her clothes and also removed his clothes then inserted his penis into her vagina. She did not call for help because the Appellant closed her mouth with a piece of clothe. That when the Appellant had her sister knocking on the door he put on his clothes and went to open the door. She also stated that she did not tell her sister what had transpired until the following day is when she told her what had transpired the previous day and her sister also disclosed that the Appellant had done the same thing to her that is when they both agreed to tell their mother what had transpired.
15. PW2 stated that her mother then reported the incident to the area chief and thereafter they reported the incident to Kathiani police station. They were then treated at Kathiani Hospital and PRC and P3 Forms were issued to that effect.
16. PW3- Faith Wairimu testified to the effect that the Appellant herein was her husband. She stated that both PW1 and PW2 are her daughters. She produced Immunizations Cards to that effect. She stated that on 24/11/2019, the Appellant had sexual intercourse with the said daughters when she had gone to work. She stated that it was PW1 who informed her what had transpired. She also stated that there is a time she had gone to Olkalau and PW2 told her that the Appellant used to carry her to his bed then they would have sexual intercourse. She stated that she reported the incident to Kathiani police station and later they went to Kathiani hospital for treatment and the minors were then taken to children’s home. She further stated that at the hospital PRC Forms were issued for the two minors and P3 Forms were also filled.
17. On cross examination, PW3 admitted that it is the Appellant who had been taking care of the PW1 and PW2 since when they were 1 and 3 months old. She stated that she went to Olkalau after they had a disagreement with the Appellant. She also stated that they have had disagreements with the Appellant on several occasions. She stated that the disagreements have been with regard to the minors.
18. PW4 Dr. Katua Daniel testified to the effect that she had the two P3 Forms for the two minors herein. PW1 was aged 15 years. She stated that the said minor was brought to the facility on the allegations of having been defiled by his father on 26.11.2019. He stated that upon examination it was noted that the hymen was torn; vaginal walls had bruises; labia minora and Majora were normal. He stated that there was foul smell and there was also vaginal discharge.
He thus produced the PRC Form and the P3 Form for PW1.
19. PW4 also stated that he had the P3 Form for PW2 aged 11 years. He stated that PW2 was brought to the facility with a history of having been defiled by her father on 24/11/2029. He stated that the hymen of the victim was torn and her vaginal wall had perforations and there was a foul smell from the vagina. He produced the P3Form and PRC Form for the said minor as exhibit.
20. On cross examination, PW4 stated that he was not the one who attended to the minors herein. He also stated that the victim had stayed for 2 days before going to the hospital. The Examining doctor was one Sandra Kituku. He stated that hymen had been destroyed approximately 2 days before visiting the hospital. He also noted that the minors had STD infections.
21. PW5 testified to the effect that he was the Investigating officer of the instant case. He stated that a report of defilement of the two minors herein was made to the station whereof P3 Forms were issued. She stated that witness statements of the various witnesses were recorded and the Appellant was arrested and charged with the instant charges.
Defence case
22. Upon the Appellant being put to his defence he gave sworn statement to the effect that at the time the incident occurred he was not at home but at Ngoleni. He also stated that he was not in good terms with his wife, the mother to the minors herein. He reiterated that he did not commit the offence.
In cross examination the Appellant stated that when his wife was not around the victims herein used to sleep with their grandmother. He thus urged the court to discharge him. He also confirmed that the said grand mother had not been called to testify.
Analysis and Determination
23. The appeal was directed to be canvassed by way of written submissions. The Appellant’s submissions are dated 24/9/2024 while the Respondent’s submissions are dated 20/02/2025.
24. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -
“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.
25. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
26. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-
“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”
27. Having considered the lower court record, the grounds of appeal and the submissions of the parties, I find the following as issues for determination;
a. Whether the prosecution proved the case beyond reasonable doubt
b. Whether the sentence should be interfered with.
28. It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
29. In this case, the Appellant was charged and sentenced under Section 20 (1) of the Sexual Offences Act which provide as follows:
(1) “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
30. The ingredients for the offence of incest can be summarized as follows;
a. Proof of the age of the victim.
b. Proof that the offender is a relative of the victim,
c. Proof of penetration or indecent act
d. proper identification of the perpetrator.
a. Proof of the age of the victim.
31. On the ingredient of age of minority, the incident happened on diverse dates in November 2019. PWI testified and stated that she was aged 16 years, born in 2004 and in Class 7. PW2 testified and stated that she was aged 13 years old and in Class 6. PW3 stated that PWI was born in 2004 and produced clinic Immunization Card as PExt.5. PW3. She also stated that PW2 was born in 2008 and produced her clinic Immunization Card as PExt.6. It is thus confirmed that at the time of the incident the complainants were 15 years and II years of age respectively. I find that the ingredient of age of minority was proved by the prosecution.
b. Proof that the offender is a relative of the victim.
32. PW I and PW2 confirmed that they lived together with the Appellant and their mother PW3. They further stated that when the mother left them at home they would stay with the Appellant and he would sleep in his room and the victims would sleep in the sitting room. PW3 confirmed that the Appellant was her husband. Further that PW I and PW 2 stayed at a children's home so as to protect them and take them away from the scene of the incident which was their home. In his defence the Appellant also confirmed that he prepared meals for the victims severally at their home and refers to them as his daughters/children.
33. Section 22 of the Sexual Offences Act provides the test of relationship as:
l. In cases of the offence of incest, brother and sister includes half brother, half sister and adoptive brother and adoptive sister and father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.
2 In this Act-
a. "uncle" means the brother of a person's parent and "aunt" has a corresponding meaning
b. "nephew" means the child of a person 's brother or sister and “niece” has a corresponding meaning
c. "half-brother " means a brother who shares only one parent with another
d. "half-sister" means a sister who shares only one parent with another; and
e. "adoptive brother' means a brother who is related to another through adoption and "adoptive sister " has a corresponding meaning
3. An accused person shall be presumed, unless the contrary is proved to have had knowledge, al the time of the alleged offence, of the relationship existing between him or her and the other party 10 the incest.
34. The complainants were PW3 daughters. They lived with the Appellant and PW3 in the same house. Therefore, the evidence on relationship between the complainants and the Appellant is water tight.
c. Proof of penetration or indecent act
35. On the issue of penetration, the same is defined in Section 2 of the Sexual Offences Act as;
“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
36. PWI stated that she resided with her mother, sister, brother and Appellant who she referred to as dad. She stated that in 2019 the Appellant did bad manners to her. The Appellant removed her clothes and his clothes and inserted his penis in her private part. PWI state the Appellant defiled her on three occasions. On the three occasions, PWI stated the Appellant would take her to his bed and remove his clothes and her clothes and insert his penis into her vagina. PW2 also testified that the Appellant defiled her. She stated that she used to live with her mother, sister, brother and Appellant. She stated that the Appellant went to the sitting room where she was sleeping and removed her panty and inserted his penis into her vagina. The second time he defiled her in his bedroom. PW2 informed her sister PWI what had been happening and her sister PWI also told her that the Appellant had defiled her as well. PW3 was the mother to the two victims PW I and PW2. She indicates that her daughters PWI and PW2 informed her that their father the Appellant had defiled them. She reported the matter to the police station.
37. PW4 was the medical doctor who corroborated the evidence by PW I and PW2. For PWI upon examination and finding that the hymen was torn, the vaginal wall was bruised and the probable weapon was penile penetration. For PW2 PW4 indicated upon examination and finding that the hymen was torn, labia majora and minora were normal and the vagina wall was perforated. PW4 made reference to the P3 Form and PRC forms produced as PExt.l, PExt.3, PExt.2 and PExt.4. For PW I then cross examination PW4 stated that conclusion was that the minors had been defiled and that the hymen had been destroyed approximately 2 days before visiting the hospital. He also stated in cross examination that the minors had STD infections.
38. The evidence of PW I and PW2 is consistent. The evidence of the complainants PW I and PW2 is corroborated by the PW4. The medical documents prove that there was penetration. The evidence on penetration was therefore solid and proved.
d. proper identification of the perpetrator.
39. PWI and PW2 all testified that they lived with the Appellant in the same house. They further stated that the Appellant was their dad/father. He is well known to them. PW3 indicated that the Appellant was her husband and the two victims were their daughters. In cross examination PW3 stated that the Appellant would take care of the girls when she was away. The identity of the Appellant was by way of recognition by the Complainants and their mother and the Appellant’s wife which is the best form of identification. The ingredient of identity was proved beyond reasonable doubt.
40. Upon re-analysing the totality of the evidence presented and re-evaluating the Appellants defence, there is no doubt that the prosecution proved their case beyond reasonable doubt as to the offence of incest. The upshot is that the appeal as against conviction under the offence of incest therefore fails.
41. As regards the sentence, this Court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated as follows:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
42. In Maingi & 5 others Vs. Director of Public Prosecution & Another (Petition No. E117 of 2021) (2022) KEHC 13118 (KLR) the Petitioners who were convicts serving offences under Sexual Offences Act No 3 of 2006 sued the Attorney General and sought for declaration that the mandatory nature of sentence under the Sexual Offences Act were unconstitutional as it fettered the discretion of Judges and Magistrates in meting out sentence. Justice G.V Odunga vide his considered judgment dated 17th May, 2022 did find that –
“to the extent that the Sexual Offences Act prescribed minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such sentence fall foul of Article 28 of the Constitution. However, the courts are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be mandatory minimum prescribed sentences.”
43. The legislation that was in force before commencement of the Constitution of Kenya 2010 must be considered with adaptation, qualification and exception when it comes to the mandatory minimum sentence and in particular when the said sentences do not take into account the dignity of the individual as mandated under Article 27 of the Constitution, 2010 and as appreciated in the Francis Muruatetu case and applied by courts in several cases. See Christopher Ochieng V Republic Kisumu CA Criminal Appeal No 202 of 2011 and Jared Koita Injiri V Republic Kisumu CA Criminal Appeal No 92 0f 2104.
44. Sentencing is a discretion of the court of law but the court should look at the facts and the circumstances in the entirety so as to arrive at an appropriate sentence. The Court of Appeal in Thomas Mwamba Wanyi Vs Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Antony Pereira Vs The state of Maharastra at paragraph 70 – 71 where the court held;
“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate and proportionate sentences commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles; twin objective of sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of crime, motive for the crime, nature of the offence and all the attendant circumstances. The principle of proportionality by sentencing a crime done is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment must bear relevant influence in determining the sentence of the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
45. In Francis Karioki Muruatetu & another Vs Republic the Supreme Court did provide guidelines and mitigating factors in re-hearing of sentence. The Judiciary sentencing policy guidelines list the objective of Sentencing At. Paragraph 4.1 they include the gravity of the offence, the threat of violence against the victim, the nature and type of weapon used by the applicants to inflict harm.
46. Having considered the sentence meted out and circumstances of this case and also having considered that the said Section 20(1) of the Sexual offences Act No. 3 of 2006 fettered the courts discretion in sentencing, I do find that the sentence was within the law given a reasonable proportionality between the sentence passed and the crime committed. In Republic vs Scott (2005) NSWCCA 152 Howie J Grove & Barn J J it was stated;
“There is a fundamental and immutable principle of sentencing, that is, sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed… one of the purposes of punishment is to ensure that an offender is adequately punished… a further purpose is to denounce the conduct of the offender.
47. The upshot is that, I hereby find that this appeal lacks merit and is thus dismissed in its entirety.
48. Right of Appeal 14 days.
49. It is so ordered.
JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 29TH MAY 2025.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 29TH MAY 2025
In the presence of:
At Kamiti Max. Prison............... for Applicant
Ms. Agatha............. for Respondent
Wambua............ Court Assistant