(An appeal from the conviction and sentence in Chief Magistrates Court Makueni Sexual Offence Case No. E003 of 2023, Judgment delivered on 24 th august, 2023 by Hon. Elizabeth Kemei, SRM)
1. The Appellants were charged with 4 counts of the offense of Incest by male contrary to Section 20 (1) of the Sexual Offences Act No.3 of 2006. Count I and Count II related to the 1 st Appellant while Count III and Count IV related to the 2 nd Appellant.
The 1 st Appellant- Bonface Kyalo Ndambuki (Count I & II)
2. The particulars of Count I are that, 1 st Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini village, Kalawa sub Location, Mbooni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of FMK a child aged 12 years who to his knowledge was his daughter.
3. He also faced an alternative charge of Indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. No. 3 of 2006. The particulars of this alternative charge were that, 1 st Appellant, on diverse dates in January, 2022 and January 2023 at unknown time at Ndevoini Village, Kalawa sub Location, Mbooni Sub-County within Makueni County he unlawfully touched the vagina of FMK aged 12 years with his penis.
4. The particulars of Count II are that, 1 st Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa Sub Location, Mbooni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of WMK a child aged 10 years who to his knowledge was his daughter.
5. He also faced an alternative charge of Indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of this alternative charge are that, 1 st Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa sub Location, Mbooni Sub-County within Makueni County he unlawfully touched the vagina of WMK aged 10 years with his penis.
The 2 nd Appellant- Mutinda Ndambuki Alias Corona (Count III & IV)
6. The particulars of Count III are that, 2 nd Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa Sub Location, Mbooni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of FMK a child aged 12 years who to his knowledge was his niece.
7. He also faced an alternative charge of Indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge are that, 2 nd Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa sub-Location, Mbooni Sub-County within Makueni County he unlawfully touched the vagina of FMK aged 12 years with his penis.
8. The particulars of Count IV are that, 2 nd Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa sub-Location, Mbooni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of WMKa child aged 10 years who to his knowledge was his niece.
9. He also faced an alternative charge of Indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge was that, 2 nd Appellant, on the diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa sub Location, Mbooni Sub-County within Makueni County he unlawfully touched the vagina of WMK aged 10 years with his penis.
10. Both Appellants pleaded not guilty and the matter was set down for hearing. The Court delivered Judgment on 24 th August, 2023, wherein it convicted the Appellants. The 1 st Appellant was convicted of the offence of Incest by male contrary to Section 20 (1) of the Sexual Offences Act No.3 of 2006 in Count I & II, while the 2 nd Appellant was convicted of the same offence in Count III & IV. The Court sentenced them to serve a term of 25 years in prison.
11. The Appellants were dissatisfied with the judgment and appealed to this Court against both conviction and sentences. They filed a Petition of Appeal dated 13 th June, 2024, in which they listed the following grounds;
1) The Learned Trial Magistrate erred in law and fact in convicting the Appellants while there was insufficient evidence to prove the charge which evidence was otherwise inconsistent, discredited, fabricated, and suspicious.
2) The Learned Trial Magistrate erred in law and fact in convicting the Appellants in a trial that failed to meet the threshold set out in Article 50 (2) (c) (h) and (j) of the Constitution of Kenya, 2010.
3) The Learned Trial Magistrate erred in shifting the burden of proof to the Appellants by rejecting their defense without proper evaluation.
4) That the Learned Trial Magistrate erred both in law and in fact by relying on hearsay evidence in convicting the Appellants making their conviction unjustified and unsafe.
5) That the sentence of 25 years imprisonment meted out on each of the Appellants was harsh and excessive and against the spirit of the rehabilitation and reintegration considering current developments in jurisprudence as regards sentencing.
12. They asked this Court to allow the appeal in its entirety and set aside their convictions and sentences.
13. The Appeal was canvassed by way of written submissions. Each of the Appellants filed written submissions. The 1 st Appellant’s submissions are dated 17 th March, 2025, while the 2 nd Appellant’s were dated the same day. The Court considered the said submissions at length.
Issues for Determination
14. Having considered the grounds of appeal and the submission by the parties, I find that there are two issues for determination.
a) Whether the prosecution proved the charges to the required standards and;
b) Whether the sentences were appropriated.
15. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
The Law and the Elements
16. The offense of Incest is provided for under Section 20(1) of the Sexual Offences Act, 2006 , which states as follows:
20. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
17. In order to secure a conviction for the offence of incest, the prosecution is required to prove two elements. First, it is required to prove either penetration or an indecent act. Secondly, it is required to prove the relationship between the accused and the victim/complainant.
18. I shall start with the second element because it is less problematic. The Appellants do not dispute their relationship with the complainants, that is, FMK and WMK. The 1 st Appellant told the lower Court that the two complainants were his daughters while the 2 nd Appellant told the lower Court that the two complainants were his nieces. Accordingly, I find that this element was proved.
19. The prosecution’s case and the subsequent conviction were that there was penetration; thus, the next issue for determination is whether there was penetration.
20. In order to achieve a logical analysis of the evidence on record, I shall first discuss whether the prosecution proved penetration in Count II and Count IV, both of which relate to the 2 nd Complainant, WMK. Thereafter, I shall discuss whether the prosecution proved penetration in Count I and Count III, both of which relate to the 1 st Complainant, FMK.
Whether the prosecution proved penetration in Count II and Count IV
21. WMK, who was PW2, told the court that the Appellants had defiled her severally on different occasions. She told the court that the 1 st Appellant defiled her thrice, on different occasions, while she was out in the field grazing the cattle. She narrated how the defilement happened. She also told the court that the 2 nd Appellant defiled her twice, on different occasions, while she was out in the field grazing the cattle. She also described how the defilement by the 2 nd Appellant happened. She told the court that, in all these incidents, the Appellants defiled her in the field during the day, and that she had never been defiled in the house.
22. PW3 was a male teacher in WMK’s school, and he is the one who apparently discovered the entire defilement. He told the court that, on 1 st February, 2023, he went to the WMK’s classroom and was met by a foul smell. He stated that, upon inquiry, he found that WMK had a foul odour. PW3 informed a female teacher at the school, PW5, to assess the girl. PW5 informed the Court that WMK was emitting a foul smell, and when asked about it, she remained silent.
23. PW5 stated that she then involved another female teacher, PW4. She told the court that, once PW4 joined them, WMK opened up and told them that the 1 st Appellant usually defiles her. PW4, on her part, told the court that WMK was dirty and reeking. She told the Court that when they asked WMK about her odour, she explained that she had been defiled by her father. This third teacher mentioned that the smell was unpleasant.
24. Lastly, PW8 was a medical officer at Kalawa Health Centre Sub-County Hospital. He produced a PRC form, a Lab request and Report form, and a P3 form. I have seen the medical reports for WMK. The report shows that no pus cells, yeast cells, spermatozoa, or TVs were seen. The doctor, PW8, produced these reports to the Court and told the Court that, upon examining WMK, there was no discharge and no abnormal findings. He told the Court that the cervix could not open to be assessed due to the small size of the vaginal perforated hymen.
25. The question before this Court is whether the above evidence, taken as a whole, proves penetration.
26. This court notes something curious about the testimonies of PW3, PW4, and PW5, all of whom were teachers at the school where WMK is a pupil. The three teachers told the Court that WMK was emitting a strong, foul odor. They all described the smell as very bad. PW3, who seemingly uncovered the full situation, explained that he was prompted to investigate by the foul smell. However, the medical doctor who examined WMK on the same day, within a few hours, did not detect any smell.
27. From the facts, the sequence of the events was as follows; The teachers discovered the foul smell at 10.00 am after which they informed the area chief. The minors were then taken to the police station, after which they were taken to Kalawa Sub-County Hospital for examination. Based on this sequence of events, WMK did not shower or take a bath between the time the teachers discovered the odour and the time she was examined at the hospital.
28. The impression created by the three teachers is that the smell was so reeking that anyone would notice it. It becomes curious that the medical doctor did not detect the same. This begs the question: why did the medical doctor not detect the foul smell that the three teachers had? In addition, the medical examination revealed that there were no pus cells seen, no yeast cells seen, no spermatozoa seen and no TVs seen. The doctor himself told the court that there was no discharge and no abnormal findings. Given that there was no discharge and there was no abnormal finding, where was the alleged smell coming from?
29. In my view, these facts collectively cast doubt on the genesis of the investigations. Therefore, I consider the testimonies of the three teachers, PW3, PW4, and PW5, less convincing because they seem to conflict with the medical report regarding WMK’s physical condition at her medical examination. I have no reason to believe that the teachers accurately described their involvement in the supposed discovery of the alleged abuse incidents.
30. PW1’s testimony also raised some suspicion on the conduct of the teachers, especially PW3 and PW4. PW1, who is the 1 st Complainant, told the Court the teachers, PW3 and PW4, had beaten her so as to implicate the 1 st Appellant. She stated this, I quote: “ When I was in grade 4, 5, and 6, I used to be beaten at school by teachers telling me to say that I was sleeping with my father. The teachers are Kilatya (PW4) and Maingi (PW3) .”
31. I note that, at some point, PW1 was later stood down on the grounds that there was a change in demeanour, which was attributed to the presence of the Appellants. However, I note that, once she took the stand again, the Prosecution did not probe her on her statement that the teachers had pressurized her.
32. In addition, I have analyzed the context in which she made this statement. Before she made this statement, she had done a detailed introduction about her family, and that information was corroborated by all other witnesses-including defense witnesses. In addition, after she made this statement, she gave a detailed description of their house, and that information was corroborated by all the other witnesses- including defence witnesses. In my assessment, all the information that she gave before she was stood down turned out to be true, because it was corroborated by all other witnesses, including defence witnesses.
33. Based on the above factual analysis, I find it is more likely that PW1 (1 st Complainant) was telling the truth that her teachers used to beat her to force her implicate the 1 st Appellant (her father). This factual finding might explain why the teachers reported a strong, foul odour, which the medical officer was unable to detect or observe.
34. Lastly, I noted the contradiction between the testimonies of the two complainants, FMK and WMK, especially on how FMK was defiled by the 1 st Appellant. FMK told the Court that the 1 st Appellant (her father) defiled her on two occasions only. She said that the first incident happened when she was in Grade 5. This means that this first time happened possibly the previous year, because she was in Grade 6 at the time of the trial. She said it happened while they were out in the field collecting firewood.
35. She stated that the second defilement incident happened while they were in the home kitchen. She stated that the 1 st Appellant inserted his penis into her anus. She said that it was at night and the others were asleep. She did not state when the second incident happened. Her evidence was that the 1 st Appellant defiled her twice- once in the field and once in the kitchen. She maintained that there was no other incident (with 1 st Appellant). On cross- examination, she told the Court that she was not defiled at the house.
36. On the other hand, WMK gave a contradictory testimony on the circumstances under which her sister, FMK, was defiled by their father. She told the Court that her sister was defiled in the house on two occasions, and that she witnessed the two defilement incidents. She said, and I quote: “ F. [FMK] is usually defiled by our father where we sleep. I have seen it twice. I usually see them because we use electronic lights .”
37. I note this contradiction. While FMK maintained that she was never defiled in the house, her sister WMK insisted that she saw her sister being defiled at the house, on two occasions. This contradiction is irreconcilable. It is obvious that one or both of them were not telling the truth. The question of whether the 1 st Appellant defiled FMK at the house is a factual issue. It is either that it happened or it did not. If it happened, then FMK was not telling the truth and was possibly concealing more. If it did not happen, then WMK lied to the Court and was possibly fabricating evidence against the 1 st Appellant.
38. Lastly, I wish to point out something peculiar about these proceedings. The complaints, FMK and WMK, at the police station on 1 st February, 2023 stated that their last incident of defilement was on 31 st January, 2023 meaning that they had both been defiled the previous day. What I find curious is that they did not identify the very person who had defiled them the previous day. FMK did not tell the doctor or the police who exactly between the Appellants had defiled her the previous day. The same case for the 2 nd Complainant, WMK. She did not specify who had defiled her the previous day.
39. While it is possible that the complainants had been defiled in the past, and that they could not remember the dates when the previous defilement incidents happened, the same cannot be said about their respective last incident. Given that the alleged defilement had just happened the previous day, I presume that the details of the incident must have been so fresh in their minds and they would have been in a position to, at the very least, specify who it is that had defiled them.
40. Many questions then emerge on what could have happened on 31 st January, 2023; did the 1 st Appellant defile both of them or did the 2 nd Respondent defile both of them? Or was each complainant defiled by a different Appellant?
41. Accordingly, these factual findings cast doubt on the mind of this Court on whether the entire defilement allegations were a fabrication or whether it actually happened.
42. The Court of Appeal in Sawe v Republic (Criminal Appeal 2 of 2002) [2003] eKLR , underscored the need for the prosecution to prove a case beyond reasonable doubt. It stated;
“We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence.”
43. In totality, in the circumstances on this case, it is not safe to convict the 1 st Appellant for Count II. The evidence supporting the Charge and the alternative charge is questionable and has been characterized with major inconsistencies and a real possibility that one of the witnesses was beaten to implicate him. Similarly, it is not safe to convict the 2 nd Appellant for Count IV. The prosecution did not prove penetration because there were real doubts on the credibility of WMK and the truthfulness of her entire testimony.
Whether the prosecution proved penetration in Count I and Count III
44. The two accounts relate to the 1 st Complainant, FMK. In determining whether the prosecution proved these 2 counts, I rely on my factual findings and observations in the previous paragraphs.
45. I find that it is not safe to convict the 1 st Appellant for Count I. The evidence supporting the Charge is questionable and has been characterized with major inconsistencies and a real possibility that one of the witnesses was beaten to implicate him. Similarly, it is not safe to convict the 2 nd Appellant for Count III. The prosecution did not prove penetration because there were real doubts about the credibility of FMK and the truthfulness of her entire testimony.
46. The upshot is that the Appeal is allowed and their conviction is set aside.
Disposition
47. Appeal is allowed.
48. The Conviction for the offence of incest in the judgment dated and delivered on 24th August, 2023 before Hon. E. J. Kemei (SRM) in Criminal Sexual Case Number E003 of 2023 is hereby set aside.
49. The Appellants shall be set at liberty forthwith unless otherwise lawfully held.
50. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellants– present
Ms. Mutua, ODPP
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1. The Appellants were charged with 4 counts of the offense of Incest by male contrary to Section 20 (1) of the Sexual Offences Act No.3 of 2006. Count I and Count II related to the 1 st Appellant while Count III and Count IV related to the 2 nd Appellant.
The 1 st Appellant- Bonface Kyalo Ndambuki (Count I & II)
2. The particulars of Count I are that, 1 st Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini village, Kalawa sub Location, Mbooni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of FMK a child aged 12 years who to his knowledge was his daughter.
3. He also faced an alternative charge of Indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. No. 3 of 2006. The particulars of this alternative charge were that, 1 st Appellant, on diverse dates in January, 2022 and January 2023 at unknown time at Ndevoini Village, Kalawa sub Location, Mbooni Sub-County within Makueni County he unlawfully touched the vagina of FMK aged 12 years with his penis.
4. The particulars of Count II are that, 1 st Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa Sub Location, Mbooni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of WMK a child aged 10 years who to his knowledge was his daughter.
5. He also faced an alternative charge of Indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of this alternative charge are that, 1 st Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa sub Location, Mbooni Sub-County within Makueni County he unlawfully touched the vagina of WMK aged 10 years with his penis.
The 2 nd Appellant- Mutinda Ndambuki Alias Corona (Count III & IV)
6. The particulars of Count III are that, 2 nd Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa Sub Location, Mbooni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of FMK a child aged 12 years who to his knowledge was his niece.
7. He also faced an alternative charge of Indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge are that, 2 nd Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa sub-Location, Mbooni Sub-County within Makueni County he unlawfully touched the vagina of FMK aged 12 years with his penis.
8. The particulars of Count IV are that, 2 nd Appellant, on diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa sub-Location, Mbooni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate the vagina of WMKa child aged 10 years who to his knowledge was his niece.
9. He also faced an alternative charge of Indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative charge was that, 2 nd Appellant, on the diverse dates in January, 2022 and January, 2023 at unknown time at Ndevoini Village, Kalawa sub Location, Mbooni Sub-County within Makueni County he unlawfully touched the vagina of WMK aged 10 years with his penis.
10. Both Appellants pleaded not guilty and the matter was set down for hearing. The Court delivered Judgment on 24 th August, 2023, wherein it convicted the Appellants. The 1 st Appellant was convicted of the offence of Incest by male contrary to Section 20 (1) of the Sexual Offences Act No.3 of 2006 in Count I & II, while the 2 nd Appellant was convicted of the same offence in Count III & IV. The Court sentenced them to serve a term of 25 years in prison.
11. The Appellants were dissatisfied with the judgment and appealed to this Court against both conviction and sentences. They filed a Petition of Appeal dated 13 th June, 2024, in which they listed the following grounds;
1) The Learned Trial Magistrate erred in law and fact in convicting the Appellants while there was insufficient evidence to prove the charge which evidence was otherwise inconsistent, discredited, fabricated, and suspicious.
2) The Learned Trial Magistrate erred in law and fact in convicting the Appellants in a trial that failed to meet the threshold set out in Article 50 (2) (c) (h) and (j) of the Constitution of Kenya, 2010.
3) The Learned Trial Magistrate erred in shifting the burden of proof to the Appellants by rejecting their defense without proper evaluation.
4) That the Learned Trial Magistrate erred both in law and in fact by relying on hearsay evidence in convicting the Appellants making their conviction unjustified and unsafe.
5) That the sentence of 25 years imprisonment meted out on each of the Appellants was harsh and excessive and against the spirit of the rehabilitation and reintegration considering current developments in jurisprudence as regards sentencing.
12. They asked this Court to allow the appeal in its entirety and set aside their convictions and sentences.
13. The Appeal was canvassed by way of written submissions. Each of the Appellants filed written submissions. The 1 st Appellant’s submissions are dated 17 th March, 2025, while the 2 nd Appellant’s were dated the same day. The Court considered the said submissions at length.
Issues for Determination
14. Having considered the grounds of appeal and the submission by the parties, I find that there are two issues for determination.
a) Whether the prosecution proved the charges to the required standards and;
b) Whether the sentences were appropriated.
15. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
The Law and the Elements
16. The offense of Incest is provided for under Section 20(1) of the Sexual Offences Act, 2006 , which states as follows:
20. (1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
17. In order to secure a conviction for the offence of incest, the prosecution is required to prove two elements. First, it is required to prove either penetration or an indecent act. Secondly, it is required to prove the relationship between the accused and the victim/complainant.
18. I shall start with the second element because it is less problematic. The Appellants do not dispute their relationship with the complainants, that is, FMK and WMK. The 1 st Appellant told the lower Court that the two complainants were his daughters while the 2 nd Appellant told the lower Court that the two complainants were his nieces. Accordingly, I find that this element was proved.
19. The prosecution’s case and the subsequent conviction were that there was penetration; thus, the next issue for determination is whether there was penetration.
20. In order to achieve a logical analysis of the evidence on record, I shall first discuss whether the prosecution proved penetration in Count II and Count IV, both of which relate to the 2 nd Complainant, WMK. Thereafter, I shall discuss whether the prosecution proved penetration in Count I and Count III, both of which relate to the 1 st Complainant, FMK.
Whether the prosecution proved penetration in Count II and Count IV
21. WMK, who was PW2, told the court that the Appellants had defiled her severally on different occasions. She told the court that the 1 st Appellant defiled her thrice, on different occasions, while she was out in the field grazing the cattle. She narrated how the defilement happened. She also told the court that the 2 nd Appellant defiled her twice, on different occasions, while she was out in the field grazing the cattle. She also described how the defilement by the 2 nd Appellant happened. She told the court that, in all these incidents, the Appellants defiled her in the field during the day, and that she had never been defiled in the house.
22. PW3 was a male teacher in WMK’s school, and he is the one who apparently discovered the entire defilement. He told the court that, on 1 st February, 2023, he went to the WMK’s classroom and was met by a foul smell. He stated that, upon inquiry, he found that WMK had a foul odour. PW3 informed a female teacher at the school, PW5, to assess the girl. PW5 informed the Court that WMK was emitting a foul smell, and when asked about it, she remained silent.
23. PW5 stated that she then involved another female teacher, PW4. She told the court that, once PW4 joined them, WMK opened up and told them that the 1 st Appellant usually defiles her. PW4, on her part, told the court that WMK was dirty and reeking. She told the Court that when they asked WMK about her odour, she explained that she had been defiled by her father. This third teacher mentioned that the smell was unpleasant.
24. Lastly, PW8 was a medical officer at Kalawa Health Centre Sub-County Hospital. He produced a PRC form, a Lab request and Report form, and a P3 form. I have seen the medical reports for WMK. The report shows that no pus cells, yeast cells, spermatozoa, or TVs were seen. The doctor, PW8, produced these reports to the Court and told the Court that, upon examining WMK, there was no discharge and no abnormal findings. He told the Court that the cervix could not open to be assessed due to the small size of the vaginal perforated hymen.
25. The question before this Court is whether the above evidence, taken as a whole, proves penetration.
26. This court notes something curious about the testimonies of PW3, PW4, and PW5, all of whom were teachers at the school where WMK is a pupil. The three teachers told the Court that WMK was emitting a strong, foul odor. They all described the smell as very bad. PW3, who seemingly uncovered the full situation, explained that he was prompted to investigate by the foul smell. However, the medical doctor who examined WMK on the same day, within a few hours, did not detect any smell.
27. From the facts, the sequence of the events was as follows; The teachers discovered the foul smell at 10.00 am after which they informed the area chief. The minors were then taken to the police station, after which they were taken to Kalawa Sub-County Hospital for examination. Based on this sequence of events, WMK did not shower or take a bath between the time the teachers discovered the odour and the time she was examined at the hospital.
28. The impression created by the three teachers is that the smell was so reeking that anyone would notice it. It becomes curious that the medical doctor did not detect the same. This begs the question: why did the medical doctor not detect the foul smell that the three teachers had? In addition, the medical examination revealed that there were no pus cells seen, no yeast cells seen, no spermatozoa seen and no TVs seen. The doctor himself told the court that there was no discharge and no abnormal findings. Given that there was no discharge and there was no abnormal finding, where was the alleged smell coming from?
29. In my view, these facts collectively cast doubt on the genesis of the investigations. Therefore, I consider the testimonies of the three teachers, PW3, PW4, and PW5, less convincing because they seem to conflict with the medical report regarding WMK’s physical condition at her medical examination. I have no reason to believe that the teachers accurately described their involvement in the supposed discovery of the alleged abuse incidents.
30. PW1’s testimony also raised some suspicion on the conduct of the teachers, especially PW3 and PW4. PW1, who is the 1 st Complainant, told the Court the teachers, PW3 and PW4, had beaten her so as to implicate the 1 st Appellant. She stated this, I quote: “ When I was in grade 4, 5, and 6, I used to be beaten at school by teachers telling me to say that I was sleeping with my father. The teachers are Kilatya (PW4) and Maingi (PW3) .”
31. I note that, at some point, PW1 was later stood down on the grounds that there was a change in demeanour, which was attributed to the presence of the Appellants. However, I note that, once she took the stand again, the Prosecution did not probe her on her statement that the teachers had pressurized her.
32. In addition, I have analyzed the context in which she made this statement. Before she made this statement, she had done a detailed introduction about her family, and that information was corroborated by all other witnesses-including defense witnesses. In addition, after she made this statement, she gave a detailed description of their house, and that information was corroborated by all the other witnesses- including defence witnesses. In my assessment, all the information that she gave before she was stood down turned out to be true, because it was corroborated by all other witnesses, including defence witnesses.
33. Based on the above factual analysis, I find it is more likely that PW1 (1 st Complainant) was telling the truth that her teachers used to beat her to force her implicate the 1 st Appellant (her father). This factual finding might explain why the teachers reported a strong, foul odour, which the medical officer was unable to detect or observe.
34. Lastly, I noted the contradiction between the testimonies of the two complainants, FMK and WMK, especially on how FMK was defiled by the 1 st Appellant. FMK told the Court that the 1 st Appellant (her father) defiled her on two occasions only. She said that the first incident happened when she was in Grade 5. This means that this first time happened possibly the previous year, because she was in Grade 6 at the time of the trial. She said it happened while they were out in the field collecting firewood.
35. She stated that the second defilement incident happened while they were in the home kitchen. She stated that the 1 st Appellant inserted his penis into her anus. She said that it was at night and the others were asleep. She did not state when the second incident happened. Her evidence was that the 1 st Appellant defiled her twice- once in the field and once in the kitchen. She maintained that there was no other incident (with 1 st Appellant). On cross- examination, she told the Court that she was not defiled at the house.
36. On the other hand, WMK gave a contradictory testimony on the circumstances under which her sister, FMK, was defiled by their father. She told the Court that her sister was defiled in the house on two occasions, and that she witnessed the two defilement incidents. She said, and I quote: “ F. [FMK] is usually defiled by our father where we sleep. I have seen it twice. I usually see them because we use electronic lights .”
37. I note this contradiction. While FMK maintained that she was never defiled in the house, her sister WMK insisted that she saw her sister being defiled at the house, on two occasions. This contradiction is irreconcilable. It is obvious that one or both of them were not telling the truth. The question of whether the 1 st Appellant defiled FMK at the house is a factual issue. It is either that it happened or it did not. If it happened, then FMK was not telling the truth and was possibly concealing more. If it did not happen, then WMK lied to the Court and was possibly fabricating evidence against the 1 st Appellant.
38. Lastly, I wish to point out something peculiar about these proceedings. The complaints, FMK and WMK, at the police station on 1 st February, 2023 stated that their last incident of defilement was on 31 st January, 2023 meaning that they had both been defiled the previous day. What I find curious is that they did not identify the very person who had defiled them the previous day. FMK did not tell the doctor or the police who exactly between the Appellants had defiled her the previous day. The same case for the 2 nd Complainant, WMK. She did not specify who had defiled her the previous day.
39. While it is possible that the complainants had been defiled in the past, and that they could not remember the dates when the previous defilement incidents happened, the same cannot be said about their respective last incident. Given that the alleged defilement had just happened the previous day, I presume that the details of the incident must have been so fresh in their minds and they would have been in a position to, at the very least, specify who it is that had defiled them.
40. Many questions then emerge on what could have happened on 31 st January, 2023; did the 1 st Appellant defile both of them or did the 2 nd Respondent defile both of them? Or was each complainant defiled by a different Appellant?
41. Accordingly, these factual findings cast doubt on the mind of this Court on whether the entire defilement allegations were a fabrication or whether it actually happened.
42. The Court of Appeal in Sawe v Republic (Criminal Appeal 2 of 2002) [2003] eKLR , underscored the need for the prosecution to prove a case beyond reasonable doubt. It stated;
“We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence.”
43. In totality, in the circumstances on this case, it is not safe to convict the 1 st Appellant for Count II. The evidence supporting the Charge and the alternative charge is questionable and has been characterized with major inconsistencies and a real possibility that one of the witnesses was beaten to implicate him. Similarly, it is not safe to convict the 2 nd Appellant for Count IV. The prosecution did not prove penetration because there were real doubts on the credibility of WMK and the truthfulness of her entire testimony.
Whether the prosecution proved penetration in Count I and Count III
44. The two accounts relate to the 1 st Complainant, FMK. In determining whether the prosecution proved these 2 counts, I rely on my factual findings and observations in the previous paragraphs.
45. I find that it is not safe to convict the 1 st Appellant for Count I. The evidence supporting the Charge is questionable and has been characterized with major inconsistencies and a real possibility that one of the witnesses was beaten to implicate him. Similarly, it is not safe to convict the 2 nd Appellant for Count III. The prosecution did not prove penetration because there were real doubts about the credibility of FMK and the truthfulness of her entire testimony.
46. The upshot is that the Appeal is allowed and their conviction is set aside.
Disposition
47. Appeal is allowed.
48. The Conviction for the offence of incest in the judgment dated and delivered on 24th August, 2023 before Hon. E. J. Kemei (SRM) in Criminal Sexual Case Number E003 of 2023 is hereby set aside.
49. The Appellants shall be set at liberty forthwith unless otherwise lawfully held.
50. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellants– present
Ms. Mutua, ODPP
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