'(Being an appeal from the conviction and sentence delivered on 4th August 2023 by Hon. L. W. Kabaria (Ms) (P.M). in Gichugu Magistrates Court S.O. Case No. 6 of 2020)
1. The appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on diverse dates in the year 2018 and 8th May 2020 at Kibigu village, Raimu sub-location, Baragwi location in Kirinyaga East Sub-County within Kirinyaga County, caused his penis to penetrate the vagina of R. W. G. who was to his knowledge his daughter.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same dates, place and time as in the principal charge the appellant intentionally caused his penis to come into contact with the vagina of R. W. G. a girl child aged 9 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 5 witnesses to support the charges. PW 1, R.W.G was the complainant and step-daughter of the appellant. PW 2, N.N.N. is the mother of the complainant and wife of the appellant. PW 3, Zebeon Njogu Magu, was a clinical officer from Kianyaga Sub-County hospital who gave medical attention to the complainant and completed her P3 form and Post Rape Care form. PW 4, PC Dorcas Nyaga wanted to testify on behalf of the investigating officer but the appellant insisted that the investigating officer attends and testifies. PW 5, IP Mombua was the investigating officer in the case.
4. The appellant DW 1, David Gitari Gichobi gave sworn evidence in defence and called two witnesses to support his case. DW 2, David Mboi Ngaruchi was the appellant’s employer during the period of the alleged offences. DW 3, Esther Wanjiku Gichobi is the appellant’s mother.
5. At the end of the trial, the appellant was found guilty of the principal charge of incest and he was convicted and sentenced to life imprisonment.
6. PW 1, P.M. the complainant made an unsworn statement in her testimony after a voire dire examination by the court. The trial court found that although she appreciated the importance of telling the truth, she could not bear the weight of an oath. She testified that she was a pupil in Grade 6 in a named school. She recounted one night on a date she could not remember in the year 2018, while her mother was away in hospital to deliver another child, her father, the appellant, went to her bed where she was sleeping with her brother and tied her hands and legs and carried her away to his bed. She did not realize at once when she was being tied. She only awoke when he was carrying her away.
7. While in his bed, the appellant removed her clothes and also removed his clothes and did bad manners to her. She described what happened. She said the appellant lay on her and spread her legs apart and put his anus in hers. The trial court recorded that the complainant explained while touching the centre of her legs that anus is the place she uses to urinate. She screamed and the appellant covered her mouth with his hand and told her that if she ever told her mother the incident, he would stab her with a knife in the neck. When her mother, PW 2, came back, the complainant did not tell her what had happened.
8. After the baby had grown, PW 2 got some job in town where she used to go to work and come back in the evening. The appellant used to go to work also. However, PW 1 narrated that he used to pretend that he was coming home for lunch then he would send PW 1’s brothers to go and collect firewood or buy cigarettes. He would then hold her and do bad manners to her. One day, he came home at lunch time and tripped her at the door and again did the bad manners to her.
9. PW 1 realized her father’s conduct of coming home to do the bad manners to her and decided that she would not be staying at home. She would to stay with friends outside the house. One Monday, she failed to do the household chores assigned to her by her mother. When the mother came back in the evening, her brother reported to the mother that the complainant had spent the day outside the house. Her mother was angry with her and beat her thoroughly to a point of tearing her clothes. When the appellant came back, he found her in a torn T-shirt. He gave her an assignment to write two compositions and insha.
10. The following morning, the complainant’s mother threatened to report her to the police and report her for not doing her household chores but instead spending the day out of the house when it was during the Covid 19 pandemic. She would then be taken to where children are detained.
11. When PW 1 realized that her mother was serious about making the report to the police, she asked her not to do so and she would tell her the reason she did not do her house chores. So, PW 1 revealed to her mother what the appellant had been doing to her. After the revelation the mother took PW 1 to Kianyaga hospital.
12. PW 2, gave evidence that the complainant was born on 15th July 2008 and produced her certificate of birth (Exh. 4). She said that when she married the appellant she already had the complainant.
13. PW 3, the clinical officer testified that the complainant was taken to the hospital on 12th May 2020 with a history of defilement that took place on 8th May 2020 at 6.00 p.m. and on previous occasions.
14. PW 3 examined the complainant’s vaginal area. He found no bleeding or injuries and the hymen was intact. But there was reddening of the outer parts that was very painful on touch with swellings and small bruises with a bit of discharge. Four medical personnel considered the findings together. There was PW 3, Nelly Mwendwa another clinician and two doctors Dr. Jack and Dr. Mbote. Laboratory tests of the complainant did not reveal anything significant. The medical personnel concluded there was attempted defilement because according to them, there was no penetration.
15. PW 3 completed the P3 and PRC forms for the complainant.
16. PW 5 conducted investigations in the matter and had the appellant arrested and charged. She recounted the story as narrated to her by the complainant and PW 2. She said during re-examination that she did not believe the findings of the medical examination due to what the complainant had said.
17. The appellant denied that he committed the offences and asserted that he had been framed by PW 2, who was his second wife because the appellant had reestablished contact with his children of the first wife. He was supporting them and lately they had asked him to get them their certificates of birth. When he informed PW 2, she became furious and threatened to do something for him that would make him not see the children again. He said that after his arrest, PW 2 had reconciled with her first husband and reunited and were staying together.
18. DW 2, the appellant’s employer testified that he had employed the appellant as a stone mason since 2017 and they worked until 2020. At the material time they had work in Kutus and the workers were spending the nights there. In May 2020, the appellant informed him that he had problems with his wife because of the children he had with his first wife. DW 2 advised the appellant that those were personal problems and he should sort them out. The appellant did not go to work afterwards and DW 2 heard that he had been arrested.
19. In cross-examination, DW 2 said that he knew the appellant’s first wife but not PW 2, the second one.
20. DW 3, the appellant’s mother testified that when PW 2 went to deliver herself of the baby, she was the one who remained taking care of the complainant and her brother. At the same time, she was the one tending to PW 2 while she was in hospital and she was the one who went to pick her from the hospital upon discharge, in her daughter’s car. She said that she would not have allowed the children to spend the night at their parents’ house by themselves.
21. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of incest against the appellant beyond a reasonable doubt and thus convicted and sentenced him to life imprisonment.
22. The appellant was aggrieved by the decision of the trial court and has set out to challenge it based on the following amended grounds of appeal:
a. that the learned trial magistrate erred in law by acting on wrong principles of law and passed a wrong sentence of life imprisonment upon the appellant. The proviso under section 20(1) of the Sexual Offences Act provides for a sentence of 10 years up to life imprisonment. Life imprisonment is therefore not mandatory.
b. that the learned trial magistrate erred in law and fact by failing to consider that the age of the complainant and penetration were not proved.
c. that the learned trial magistrate erred in law by failing to consider the appellant’s defence.
23. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
24. The appellant submits that the sentence of life imprisonment passed by the trial court was harsh and excessive. He submits that the learned trial magistrate was wrong in considering the sentence of life imprisonment provided for under section 20 of the Sexual Offences Act as mandatory. He has cited the case of M K v Republic [2015] KECA 468 (KLR) where the Court of Appeal held that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment and that the proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20 (1) the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment.
25. The appellant cited two other cases where the courts followed the case above and set aside sentences of life imprisonment and substituted them with lesser sentences.
26. The appellant also submitted that he was satisfied that the test of relationship between him and the complainant as his step-daughter. However, he was not satisfied that the age of the complainant and penetration had been proved.
27. The appellant also submitted that the learned trial magistrate failed to consider his defence he had been framed by PW 2 so that he leaves his first family.
28. The respondent submits that the age of the complainant is not material under section 20(1) of the Sexual Offences Act but that what is relevant is the relationship between the parties.
29. The respondent submits further that, as found by the trial court, all the elements of the offence of incest being penetration, relationship of the appellant and the complainant and the age of the complainant were proved.
30. Learned counsel also submits that there was no evidence of frame-up of the appellant by PW 2 as alleged in the defence. Learned counsel submits that the trial court correctly found that even though there was a grudge between the appellant and PW 2, the complainant was very coherent in her testimony and therefore the issue of the grudge was immaterial.
31. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
32. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
33. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
34. Sections 20(1) of the Sexual Offences Act under which the appellant was convicted for the offence of incest provides as follows:
S. 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.
35. In the case of LOA v Republic [2020] KECA 927 (KLR) the Court of Appeal considering the ingredients of the offence of incest held that:
“We have no doubt at all that for an offence of incest to be proved, pursuant to section 20 of the Sexual Offences Act, the prosecution needs to prove the sex of the victim, the relationship of the victim to the perpetrator, penetration and the age of the victim. The latter requirement is for purposes of sentencing.”
36. There was no dispute that the complainant was female and that the appellant was her stepfather. The complainant’s evidence was that she is female, certificate of birth (Exh. 4) showed her sex as female, the clinical officer who examined her genitalia confirmed that she was female and all the other prosecution witnesses being her mother, PW 2, and the investigations officer, PW 5, gave evidence that she was female. They referred to her as a girl. The appellant submits that he is satisfied that the test of relationship was proved.
37. I will skip the first ground of appeal which is on sentence and proceed to first consider the second ground that the age of the complainant and penetration were not proved.
38. The appellant submits that the age of the complainant was not proved because in the charge sheet her age was indicated as 9 years while in the evidence of the various prosecution witnesses, there were inconsistencies as they stated various ages.
39. It is true that various witnesses stated various ages for the complainant. However, this can be explained. The complainant’s testimony was that the first incident took place in 2018. She could not remember the date. In that year, she was 9 years old. That is why the charge sheet indicated her age as 9 years old. She then testified that the other time the incidents occurred was in 2020. This time she was about 12 years old. The clinical officer examined her on 12th May 2020 when she was about 12 years old. That was the evidence the clinical officer gave. By the time she gave evidence-in-chief on 30th June 2021 she was 13 years old. When her mother gave evidence on 8th June 2022 the complainant was 14 years old. None of the witnesses was wrong in his or her evidence of the complainant’s age at the material time.
40. In any case, if there was any inconsistence in the prosecution witnesses’ evidence, which there was not, then the same was clarified by the complainant’s mother and certificate of birth. The age of the complainant was given by her mother, PW 2 who said she was borne on 15th July 2008. This evidence was supported by the complainant’s certificate of birth which also indicated the same date of birth. There was therefore no inconsistence in the evidence of the prosecution witnesses on the complainant’s age.
41. The final issue is proof of penetration or an indecent act and that the appellant is the one who committed the act. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with her and the other ingredients of the offence of incest as stated above. She was thus the only eye witness on the issue of penetration.
42. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
43. As stated above, the complainant gave unsworn evidence.
44. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
45. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
46. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so, that in the judgment, the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
47. The appellant submits that the complainant failed to state the place, the time and the date where the penetration took place. On the place and time, the complainant testified that for the first incident, it took place at night in her parents’ room. For the subsequent incidents she seemed to indicate that it was in her parent’s house during lunch time. However, it is true as submitted by the appellant that the complainant never mentioned any definite date when any of the alleged incidents took place. She could be excused about the alleged first incident as that would be long ago when she was only 9 years old. What about the alleged incidents in 2020?
48. The charge sheet indicates that the latest incident took place on 8th May 2020 at 6.00 p.m. However, this date and time was only mentioned by the clinical officer, PW 3 and the investigating officer, PW 5. Neither the complainant nor her mother mentioned this date in their respective testimonies. The question then is where these two witnesses got the date and time from. If from the history narrated by the complainant, is it possible that she and her mother would fail to mention this crucial date in their evidence given the medical evidence that her vaginal orifice was reddish and inflamed?
49. The date and time are crucial. In the case of the date, it would mean that the findings of the complainant’s medical examination that her vaginal orifice was reddish and inflamed could only be true if the last incident took place on 8th May 2020 which was shortly before the complainant underwent the medical examination on 12th May 2020. In the case of time, the complainant never said that any of the alleged incidents happened in the evening around 6.00 p.m. Her evidence was that, other than the first incident in 2018 which allegedly took place at night when her mother was away in maternity, the other incidents took place at lunch time. Secondly, PW 2 said, and it is a matter for judicial notice that 8th May 2020 was during the Covid 19 pandemic and there was a curfew. How possible is it that by this time PW 2 was not yet home from work? Assuming that indeed she had not come back, where were the other two children during the alleged incident especially under the curfew circumstances? Was it possible for the appellant to commit the offence at that time in the evening when his wife was just about to be back?
50. In view of these unanswered questions, and considered in its entirety, I find that the complainant’s evidence and that of her mother do not point to 8th May at 6.00 p.m. as the date of the latest alleged incident of incest.
51. The complainant told her mother that she had failed to perform her household chores and she had gone and stayed at her friend’s house because she feared that the appellant would come home and defile her. Her mother said that the chores she failed to perform were cleaning utensils. There is evidence from the complainant, her mother, the appellant, the appellant’s employer and the appellant’s mother that indeed the appellant was working at Kutus. Indeed, when the appellant absconded court while on bond, he was working at the construction site at Kutus. The appellant said he had to work extra in order to manage to support his first family and the second family as well. The question that arises is, how possible was it for the appellant to be leaving his work place to come back home and sexually harass the complainant and then go back to work?
52. But more fundamentally is the question of why the complainant could not clean the utensils during the time the appellant was away? Yet again, with whom was she spending the time at the friend’s place and what were they doing?
53. PW 2 said that she questioned the complainant on why she had been loitering about yet it was during the Covid 19 pandemic and there was a curfew and she could be arrested. She then told the complainant to go and heat water to wash the children and the complainant clicked back at her. That was when PW 2 slapped her. The complainant appeared angry. PW 2 told her to go and get vegetables for PW 2 to prepare and the complainant declined. PW 2 said she beat the complainant until she tore her clothes. The appellant came in afterwards. Here is a girl who failed to perform household chores assigned by her mother, when questioned she had not answer and when sent, she clicks and declines to take up the work. Such conduct points to a girl who is ready to defy her parents and do whatever she pleases.
54. The complainant only told her mother what the appellant had allegedly done to her the following day after the beatings, in order to dissuade the mother from reporting her to the police. The question is, how trustworthy was the complainant’s story that her father, the appellant had defiled her severally? I find that she was not one to be believed line hook and sinker as the learned trial magistrate did. Her evidence must be taken with caution.
55. Her evidence that her father had defiled her severally was not corroborated by the medical evidence which found that her hymen was intact. The clinical evidence of examination of her genital organ was that it was reddish and inflamed. The complainant’s evidence was emphatic that the appellant had raped her. She used the word “raped me” on the occasion when she returned to court for cross-examination. On the day she gave her evidence-in-chief, she said that the appellant put his ánus in hers and did bad manners to her. I believe the prosecutor then prodded her to say what she meant by anus and her answer was, “the anus is the one used to urinate.” Clearly the anus is not used to urinate. Where did she get this word which she used to refer to both the male sexual organ in the case of the appellant and the female genital organ in her case?
56. Given that the complainant was found to have her hymen intact, is it possible that somehow, she meant to allege that the penetration had been done to her anus but she ended up pointing to her vaginal area when asked where her anus was? That discrepancy was not resolved.
57. In his testimony in court, the clinical officer said that “when I examined her vaginal area there were no injuries but there was reddening of the outer parts and it was very painful on touch, there was a bit of discharge, there were swellings and small bruises on the outside. The hymen was intact. To ensure that their examination was accurate they were two clinicians and two doctors; Dr. Jack, Dr. Mbote, Nelly Mwendwa clinician and PW 3.
58. I have looked at the clinical notes of examination, the P3 form and the PRC form and they all contain the following information on genital examination: “normal external genitalia with areas of erythema (reddening) around the vaginal orifice. Tenderness on the vaginal area on touch with minimal vaginal discharge. Mild inflammation on the major/minor majora. Hymen intact with minimal inflammation. I do not see any indication of “swellings and small bruises on the outside” as testified by the clinical officer.
59. But of most importance is that the findings of inflammation around the vaginal orifice would be indicative of recent penetration around the complainant’s vaginal orifice, which, from the evidence of the clinical officer, was not complete. But the complainant was emphatic that her the appellant raped her. She did not say that it was partial insertion of his genital organ in hers.
60. The appellant’s submission that there was no other witness to the offence is addressed by the proviso to section 124 of the Evidence Act. There need not be any other eye witness besides the complainant for as long as the court finds that the victim was telling the truth and also that it warned itself of the dangers of relying on the uncorroborated evidence of the victim.
61. The learned trial magistrate found that penetration had been proved by the complainant’s evidence as corroborated by the medical evidence. I have found above that the medical evidence could not offer corroboration of the complainant’s evidence of penetration because the medical evidence pointed to the penetration having occurred on 8th May 2020 at 6.00 p.m. yet the testimony of the complainant and that of her mother never mentioned that date and time.
62. In this case, the learned trial magistrate found that the complainant was speaking the truth as she was coherent and consistent in her testimony and there was no indication that she had been couched or she had rehearsed the story. She dismissed the evidence tendered by the appellant and his witnesses as shallow and incapable of creating a doubt in the court’s mind that the defilement took place.
63. The complainant’s story may have been consistent in itself and she may have appeared truthful to the learned trial magistrate. But as pointed out above, the story was not consistent with the medical evidence tendered upon her examination.
64. The offence of incest is committed by proof of either penetration or an indecent act in terms of section 20(1) of the Sexual Offences Act. In this case, the issue of penetration may have been corroborated by the findings of the medical examination that the complainant’s vaginal orifice was inflamed. However, there is doubt on whether the penetration was caused by the appellant or a different person.
65. The prosecution failed, without explanation, to make available the complainant
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1. The appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on diverse dates in the year 2018 and 8th May 2020 at Kibigu village, Raimu sub-location, Baragwi location in Kirinyaga East Sub-County within Kirinyaga County, caused his penis to penetrate the vagina of R. W. G. who was to his knowledge his daughter.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same dates, place and time as in the principal charge the appellant intentionally caused his penis to come into contact with the vagina of R. W. G. a girl child aged 9 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 5 witnesses to support the charges. PW 1, R.W.G was the complainant and step-daughter of the appellant. PW 2, N.N.N. is the mother of the complainant and wife of the appellant. PW 3, Zebeon Njogu Magu, was a clinical officer from Kianyaga Sub-County hospital who gave medical attention to the complainant and completed her P3 form and Post Rape Care form. PW 4, PC Dorcas Nyaga wanted to testify on behalf of the investigating officer but the appellant insisted that the investigating officer attends and testifies. PW 5, IP Mombua was the investigating officer in the case.
4. The appellant DW 1, David Gitari Gichobi gave sworn evidence in defence and called two witnesses to support his case. DW 2, David Mboi Ngaruchi was the appellant’s employer during the period of the alleged offences. DW 3, Esther Wanjiku Gichobi is the appellant’s mother.
5. At the end of the trial, the appellant was found guilty of the principal charge of incest and he was convicted and sentenced to life imprisonment.
6. PW 1, P.M. the complainant made an unsworn statement in her testimony after a voire dire examination by the court. The trial court found that although she appreciated the importance of telling the truth, she could not bear the weight of an oath. She testified that she was a pupil in Grade 6 in a named school. She recounted one night on a date she could not remember in the year 2018, while her mother was away in hospital to deliver another child, her father, the appellant, went to her bed where she was sleeping with her brother and tied her hands and legs and carried her away to his bed. She did not realize at once when she was being tied. She only awoke when he was carrying her away.
7. While in his bed, the appellant removed her clothes and also removed his clothes and did bad manners to her. She described what happened. She said the appellant lay on her and spread her legs apart and put his anus in hers. The trial court recorded that the complainant explained while touching the centre of her legs that anus is the place she uses to urinate. She screamed and the appellant covered her mouth with his hand and told her that if she ever told her mother the incident, he would stab her with a knife in the neck. When her mother, PW 2, came back, the complainant did not tell her what had happened.
8. After the baby had grown, PW 2 got some job in town where she used to go to work and come back in the evening. The appellant used to go to work also. However, PW 1 narrated that he used to pretend that he was coming home for lunch then he would send PW 1’s brothers to go and collect firewood or buy cigarettes. He would then hold her and do bad manners to her. One day, he came home at lunch time and tripped her at the door and again did the bad manners to her.
9. PW 1 realized her father’s conduct of coming home to do the bad manners to her and decided that she would not be staying at home. She would to stay with friends outside the house. One Monday, she failed to do the household chores assigned to her by her mother. When the mother came back in the evening, her brother reported to the mother that the complainant had spent the day outside the house. Her mother was angry with her and beat her thoroughly to a point of tearing her clothes. When the appellant came back, he found her in a torn T-shirt. He gave her an assignment to write two compositions and insha.
10. The following morning, the complainant’s mother threatened to report her to the police and report her for not doing her household chores but instead spending the day out of the house when it was during the Covid 19 pandemic. She would then be taken to where children are detained.
11. When PW 1 realized that her mother was serious about making the report to the police, she asked her not to do so and she would tell her the reason she did not do her house chores. So, PW 1 revealed to her mother what the appellant had been doing to her. After the revelation the mother took PW 1 to Kianyaga hospital.
12. PW 2, gave evidence that the complainant was born on 15th July 2008 and produced her certificate of birth (Exh. 4). She said that when she married the appellant she already had the complainant.
13. PW 3, the clinical officer testified that the complainant was taken to the hospital on 12th May 2020 with a history of defilement that took place on 8th May 2020 at 6.00 p.m. and on previous occasions.
14. PW 3 examined the complainant’s vaginal area. He found no bleeding or injuries and the hymen was intact. But there was reddening of the outer parts that was very painful on touch with swellings and small bruises with a bit of discharge. Four medical personnel considered the findings together. There was PW 3, Nelly Mwendwa another clinician and two doctors Dr. Jack and Dr. Mbote. Laboratory tests of the complainant did not reveal anything significant. The medical personnel concluded there was attempted defilement because according to them, there was no penetration.
15. PW 3 completed the P3 and PRC forms for the complainant.
16. PW 5 conducted investigations in the matter and had the appellant arrested and charged. She recounted the story as narrated to her by the complainant and PW 2. She said during re-examination that she did not believe the findings of the medical examination due to what the complainant had said.
17. The appellant denied that he committed the offences and asserted that he had been framed by PW 2, who was his second wife because the appellant had reestablished contact with his children of the first wife. He was supporting them and lately they had asked him to get them their certificates of birth. When he informed PW 2, she became furious and threatened to do something for him that would make him not see the children again. He said that after his arrest, PW 2 had reconciled with her first husband and reunited and were staying together.
18. DW 2, the appellant’s employer testified that he had employed the appellant as a stone mason since 2017 and they worked until 2020. At the material time they had work in Kutus and the workers were spending the nights there. In May 2020, the appellant informed him that he had problems with his wife because of the children he had with his first wife. DW 2 advised the appellant that those were personal problems and he should sort them out. The appellant did not go to work afterwards and DW 2 heard that he had been arrested.
19. In cross-examination, DW 2 said that he knew the appellant’s first wife but not PW 2, the second one.
20. DW 3, the appellant’s mother testified that when PW 2 went to deliver herself of the baby, she was the one who remained taking care of the complainant and her brother. At the same time, she was the one tending to PW 2 while she was in hospital and she was the one who went to pick her from the hospital upon discharge, in her daughter’s car. She said that she would not have allowed the children to spend the night at their parents’ house by themselves.
21. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of incest against the appellant beyond a reasonable doubt and thus convicted and sentenced him to life imprisonment.
22. The appellant was aggrieved by the decision of the trial court and has set out to challenge it based on the following amended grounds of appeal:
a. that the learned trial magistrate erred in law by acting on wrong principles of law and passed a wrong sentence of life imprisonment upon the appellant. The proviso under section 20(1) of the Sexual Offences Act provides for a sentence of 10 years up to life imprisonment. Life imprisonment is therefore not mandatory.
b. that the learned trial magistrate erred in law and fact by failing to consider that the age of the complainant and penetration were not proved.
c. that the learned trial magistrate erred in law by failing to consider the appellant’s defence.
23. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
24. The appellant submits that the sentence of life imprisonment passed by the trial court was harsh and excessive. He submits that the learned trial magistrate was wrong in considering the sentence of life imprisonment provided for under section 20 of the Sexual Offences Act as mandatory. He has cited the case of M K v Republic [2015] KECA 468 (KLR) where the Court of Appeal held that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment and that the proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20 (1) the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment.
25. The appellant cited two other cases where the courts followed the case above and set aside sentences of life imprisonment and substituted them with lesser sentences.
26. The appellant also submitted that he was satisfied that the test of relationship between him and the complainant as his step-daughter. However, he was not satisfied that the age of the complainant and penetration had been proved.
27. The appellant also submitted that the learned trial magistrate failed to consider his defence he had been framed by PW 2 so that he leaves his first family.
28. The respondent submits that the age of the complainant is not material under section 20(1) of the Sexual Offences Act but that what is relevant is the relationship between the parties.
29. The respondent submits further that, as found by the trial court, all the elements of the offence of incest being penetration, relationship of the appellant and the complainant and the age of the complainant were proved.
30. Learned counsel also submits that there was no evidence of frame-up of the appellant by PW 2 as alleged in the defence. Learned counsel submits that the trial court correctly found that even though there was a grudge between the appellant and PW 2, the complainant was very coherent in her testimony and therefore the issue of the grudge was immaterial.
31. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
32. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
33. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
34. Sections 20(1) of the Sexual Offences Act under which the appellant was convicted for the offence of incest provides as follows:
S. 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.
35. In the case of LOA v Republic [2020] KECA 927 (KLR) the Court of Appeal considering the ingredients of the offence of incest held that:
“We have no doubt at all that for an offence of incest to be proved, pursuant to section 20 of the Sexual Offences Act, the prosecution needs to prove the sex of the victim, the relationship of the victim to the perpetrator, penetration and the age of the victim. The latter requirement is for purposes of sentencing.”
36. There was no dispute that the complainant was female and that the appellant was her stepfather. The complainant’s evidence was that she is female, certificate of birth (Exh. 4) showed her sex as female, the clinical officer who examined her genitalia confirmed that she was female and all the other prosecution witnesses being her mother, PW 2, and the investigations officer, PW 5, gave evidence that she was female. They referred to her as a girl. The appellant submits that he is satisfied that the test of relationship was proved.
37. I will skip the first ground of appeal which is on sentence and proceed to first consider the second ground that the age of the complainant and penetration were not proved.
38. The appellant submits that the age of the complainant was not proved because in the charge sheet her age was indicated as 9 years while in the evidence of the various prosecution witnesses, there were inconsistencies as they stated various ages.
39. It is true that various witnesses stated various ages for the complainant. However, this can be explained. The complainant’s testimony was that the first incident took place in 2018. She could not remember the date. In that year, she was 9 years old. That is why the charge sheet indicated her age as 9 years old. She then testified that the other time the incidents occurred was in 2020. This time she was about 12 years old. The clinical officer examined her on 12th May 2020 when she was about 12 years old. That was the evidence the clinical officer gave. By the time she gave evidence-in-chief on 30th June 2021 she was 13 years old. When her mother gave evidence on 8th June 2022 the complainant was 14 years old. None of the witnesses was wrong in his or her evidence of the complainant’s age at the material time.
40. In any case, if there was any inconsistence in the prosecution witnesses’ evidence, which there was not, then the same was clarified by the complainant’s mother and certificate of birth. The age of the complainant was given by her mother, PW 2 who said she was borne on 15th July 2008. This evidence was supported by the complainant’s certificate of birth which also indicated the same date of birth. There was therefore no inconsistence in the evidence of the prosecution witnesses on the complainant’s age.
41. The final issue is proof of penetration or an indecent act and that the appellant is the one who committed the act. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with her and the other ingredients of the offence of incest as stated above. She was thus the only eye witness on the issue of penetration.
42. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
43. As stated above, the complainant gave unsworn evidence.
44. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
45. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
46. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so, that in the judgment, the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
47. The appellant submits that the complainant failed to state the place, the time and the date where the penetration took place. On the place and time, the complainant testified that for the first incident, it took place at night in her parents’ room. For the subsequent incidents she seemed to indicate that it was in her parent’s house during lunch time. However, it is true as submitted by the appellant that the complainant never mentioned any definite date when any of the alleged incidents took place. She could be excused about the alleged first incident as that would be long ago when she was only 9 years old. What about the alleged incidents in 2020?
48. The charge sheet indicates that the latest incident took place on 8th May 2020 at 6.00 p.m. However, this date and time was only mentioned by the clinical officer, PW 3 and the investigating officer, PW 5. Neither the complainant nor her mother mentioned this date in their respective testimonies. The question then is where these two witnesses got the date and time from. If from the history narrated by the complainant, is it possible that she and her mother would fail to mention this crucial date in their evidence given the medical evidence that her vaginal orifice was reddish and inflamed?
49. The date and time are crucial. In the case of the date, it would mean that the findings of the complainant’s medical examination that her vaginal orifice was reddish and inflamed could only be true if the last incident took place on 8th May 2020 which was shortly before the complainant underwent the medical examination on 12th May 2020. In the case of time, the complainant never said that any of the alleged incidents happened in the evening around 6.00 p.m. Her evidence was that, other than the first incident in 2018 which allegedly took place at night when her mother was away in maternity, the other incidents took place at lunch time. Secondly, PW 2 said, and it is a matter for judicial notice that 8th May 2020 was during the Covid 19 pandemic and there was a curfew. How possible is it that by this time PW 2 was not yet home from work? Assuming that indeed she had not come back, where were the other two children during the alleged incident especially under the curfew circumstances? Was it possible for the appellant to commit the offence at that time in the evening when his wife was just about to be back?
50. In view of these unanswered questions, and considered in its entirety, I find that the complainant’s evidence and that of her mother do not point to 8th May at 6.00 p.m. as the date of the latest alleged incident of incest.
51. The complainant told her mother that she had failed to perform her household chores and she had gone and stayed at her friend’s house because she feared that the appellant would come home and defile her. Her mother said that the chores she failed to perform were cleaning utensils. There is evidence from the complainant, her mother, the appellant, the appellant’s employer and the appellant’s mother that indeed the appellant was working at Kutus. Indeed, when the appellant absconded court while on bond, he was working at the construction site at Kutus. The appellant said he had to work extra in order to manage to support his first family and the second family as well. The question that arises is, how possible was it for the appellant to be leaving his work place to come back home and sexually harass the complainant and then go back to work?
52. But more fundamentally is the question of why the complainant could not clean the utensils during the time the appellant was away? Yet again, with whom was she spending the time at the friend’s place and what were they doing?
53. PW 2 said that she questioned the complainant on why she had been loitering about yet it was during the Covid 19 pandemic and there was a curfew and she could be arrested. She then told the complainant to go and heat water to wash the children and the complainant clicked back at her. That was when PW 2 slapped her. The complainant appeared angry. PW 2 told her to go and get vegetables for PW 2 to prepare and the complainant declined. PW 2 said she beat the complainant until she tore her clothes. The appellant came in afterwards. Here is a girl who failed to perform household chores assigned by her mother, when questioned she had not answer and when sent, she clicks and declines to take up the work. Such conduct points to a girl who is ready to defy her parents and do whatever she pleases.
54. The complainant only told her mother what the appellant had allegedly done to her the following day after the beatings, in order to dissuade the mother from reporting her to the police. The question is, how trustworthy was the complainant’s story that her father, the appellant had defiled her severally? I find that she was not one to be believed line hook and sinker as the learned trial magistrate did. Her evidence must be taken with caution.
55. Her evidence that her father had defiled her severally was not corroborated by the medical evidence which found that her hymen was intact. The clinical evidence of examination of her genital organ was that it was reddish and inflamed. The complainant’s evidence was emphatic that the appellant had raped her. She used the word “raped me” on the occasion when she returned to court for cross-examination. On the day she gave her evidence-in-chief, she said that the appellant put his ánus in hers and did bad manners to her. I believe the prosecutor then prodded her to say what she meant by anus and her answer was, “the anus is the one used to urinate.” Clearly the anus is not used to urinate. Where did she get this word which she used to refer to both the male sexual organ in the case of the appellant and the female genital organ in her case?
56. Given that the complainant was found to have her hymen intact, is it possible that somehow, she meant to allege that the penetration had been done to her anus but she ended up pointing to her vaginal area when asked where her anus was? That discrepancy was not resolved.
57. In his testimony in court, the clinical officer said that “when I examined her vaginal area there were no injuries but there was reddening of the outer parts and it was very painful on touch, there was a bit of discharge, there were swellings and small bruises on the outside. The hymen was intact. To ensure that their examination was accurate they were two clinicians and two doctors; Dr. Jack, Dr. Mbote, Nelly Mwendwa clinician and PW 3.
58. I have looked at the clinical notes of examination, the P3 form and the PRC form and they all contain the following information on genital examination: “normal external genitalia with areas of erythema (reddening) around the vaginal orifice. Tenderness on the vaginal area on touch with minimal vaginal discharge. Mild inflammation on the major/minor majora. Hymen intact with minimal inflammation. I do not see any indication of “swellings and small bruises on the outside” as testified by the clinical officer.
59. But of most importance is that the findings of inflammation around the vaginal orifice would be indicative of recent penetration around the complainant’s vaginal orifice, which, from the evidence of the clinical officer, was not complete. But the complainant was emphatic that her the appellant raped her. She did not say that it was partial insertion of his genital organ in hers.
60. The appellant’s submission that there was no other witness to the offence is addressed by the proviso to section 124 of the Evidence Act. There need not be any other eye witness besides the complainant for as long as the court finds that the victim was telling the truth and also that it warned itself of the dangers of relying on the uncorroborated evidence of the victim.
61. The learned trial magistrate found that penetration had been proved by the complainant’s evidence as corroborated by the medical evidence. I have found above that the medical evidence could not offer corroboration of the complainant’s evidence of penetration because the medical evidence pointed to the penetration having occurred on 8th May 2020 at 6.00 p.m. yet the testimony of the complainant and that of her mother never mentioned that date and time.
62. In this case, the learned trial magistrate found that the complainant was speaking the truth as she was coherent and consistent in her testimony and there was no indication that she had been couched or she had rehearsed the story. She dismissed the evidence tendered by the appellant and his witnesses as shallow and incapable of creating a doubt in the court’s mind that the defilement took place.
63. The complainant’s story may have been consistent in itself and she may have appeared truthful to the learned trial magistrate. But as pointed out above, the story was not consistent with the medical evidence tendered upon her examination.
64. The offence of incest is committed by proof of either penetration or an indecent act in terms of section 20(1) of the Sexual Offences Act. In this case, the issue of penetration may have been corroborated by the findings of the medical examination that the complainant’s vaginal orifice was inflamed. However, there is doubt on whether the penetration was caused by the appellant or a different person.
65. The prosecution failed, without explanation, to make available the complainant
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