1. In the first count, the Appellant, Dominic Mutie Ndola, was charged with incest contrary to section 20 of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the 9th day of June 2022, at an unknown time during the night, at Mutini village, Mutini sub-location, Mutini location in Kitui County, he intentionally and unlawfully committed an act which caused penetration with F.M.M., a child aged 15 years, by inserting his penis into her vagina, she being to his knowledge his daughter.
2. In the second count, the Appellant was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars were that on the 9th day of June 2022 at about 1730 hours, at Mutini village, Mutini sub-location, Mutini location in Kitui County, he willfully and unlawfully assaulted F.M.M., thereby occasioning her actual bodily harm.
3. The prosecution called five witnesses. PW1, F.M.M., the complainant, testified that she was aged 15 years and was in Class 5. She recalled returning home from school when her father asked to see her books and questioned her about her poor handwriting. He beat her. Later, they went to sleep on the same bed. While she was asleep, she felt someone on her stomach. She stated that the Appellant did “bad manners” to her by putting his “thing” into her private part and that she felt him removing her clothes. She subsequently went to school and reported the incident to her teacher. She also reported that she had sustained wounds from the beating. She stated that this was not the first occasion on which her father had done such things to her.
4. PW2, Rafarsa Mwangangi, a teacher at Mutini Primary School, testified that the complainant was a pupil at the school and had difficulties with speech and eyesight and was mentally challenged. On 10th June 2022, the complainant informed the teachers that her father had beaten her and that during the night she had felt her father on her stomach. The assistant chief was informed, after which the complainant was taken to Kabati Police Station and thereafter to Kauwi Hospital.
5. PW3, Justus Munyau Nzenya, the Assistant Chief, Mutini Sub-location, testified that on 10th June 2022 he was called by the complainant's head teacher. He went to the school and was informed that the complainant had been beaten and defiled by her father. He took the complainant to the police station and assisted the police in locating the Appellant.
6. PW4, Robinson Katana Musyoka, the medical officer, examined the complainant. He produced the P3 form dated 10th June 2022 as PExh.1 and the PRC form dated 10th June 2022 as PExh.2. The forms recorded no injuries to the genitalia, although the hymen was noted to be not intact. PW4 also produced the age assessment report dated 13th June 2022 as PExh.5, which assessed the complainant's age at 15 years.
7. PW5, PC Mary Njeru, the investigating officer, testified that she interrogated the complainant, who told her that she had been beaten and defiled by her father. The complainant had bruises on her leg, hand and back. PW5 took the complainant to Kauwi Hospital and recorded witness statements. Upon completion of the investigations, the Appellant was charged with incest and assault causing actual bodily harm.
8. The Appellant gave sworn evidence and denied defiling the complainant. He testified that on the material day his sister-in-law came to his home at about 3.00 p.m. to 4.00 p.m., after which they went to fetch water. When the complainant returned from school, he asked for her books and found that she had not done the teacher's work for three days. He caned her and thereafter left home to go to work, having asked his sister-in-law to take care of the complainant in his absence. He maintained that he did not sleep at home that night. The following day, he went to Kabati Police Station after learning that the complainant had been taken there. He stated that he remained at the station awaiting the police officers who had gone to collect the child and was subsequently arrested. He maintained that he had only disciplined the complainant because he wanted her to have a better life.
9. DW2 stated that the complainant had been left in her care when the Appellant went to work. She stated that the complainant had been left in the Appellant's care when she was still a small baby and that she had taken care of her since then. She stated that she had never seen the Appellant behave in the manner alleged.
10. DW3 stated that she was present when the Appellant caned the complainant for failing to do the teacher's work and thereafter accompanied him to fetch water, with the complainant taking the water home. At about 7.00 p.m., the Appellant asked her to take in the complainant for the night as he was going to work, which she did. The following day, at about 3.00 p.m., the Sub-Chief went to her home looking for the Appellant. She informed him that he had left for work, whereupon the Sub-Chief obtained his telephone number and called him. The Appellant subsequently returned and was informed that the police had taken the complainant.
11. At the close of the trial, the trial magistrate convicted the Appellant on the first count on 24th August 2023 and on 4th September 2023 sentenced him to life imprisonment. There was no determination of the second count of assault causing actual bodily harm.
12. Aggrieved by the conviction and sentence on the first count, the Appellant lodged the present appeal on 6th September 2023 on the following grounds:
1) That the learned trial magistrate erred in both law and fact by convicting him despite inconsistent and insufficient evidence.
2) That the credibility of PW1's evidence was questionable and doubtful.
3) That the trial court prejudiced him by conducting a flawed trial.
4) That the trial court overlooked vital elements in favour of the prosecution while ignoring his evidence.
5) That the medical evidence adduced by the medical officer, which the learned trial magistrate relied upon, was obscure and professionally dysfunctional.
6) That the learned trial magistrate gravely erred in rejecting his plausible defence.
7) That the sentence imposed was severe, illegal and unconstitutional.
13. The Appellant filed written submissions dated 25th August 2026. He submitted that the charge sheet was defective because the particulars alleged that he caused penetration by inserting his penis into the complainant's vagina, whereas the complainant testified that she felt “something” on her stomach and that “bad manners” had been done to her. He contended that the evidence was at variance with the particulars of the charge.
14. The Appellant challenged the medical evidence on the ground that PW4 was not the maker of the medical documents produced before the trial court. He also challenged the contents of the medical evidence, including the entry concerning the approximate age of the injury and its description. He challenged the age assessment report on the ground that its maker was not qualified to conduct the assessment.
15. The Appellant further submitted that penetration had not been proved. He conceded that the complainant was his daughter and did not seriously dispute her age, but maintained that the evidence did not establish that penetration had occurred.
16. The Appellant also challenged the reliance on the complainant's evidence under section 124 of the Evidence Act, contending that her difficulties with speech and other faculties required her evidence to be subjected to careful scrutiny. He also questioned the circumstances and timing of the report.
17. On the defence, the Appellant submitted that he had raised an alibi. He stated that on the material night he had gone to work and had asked his sister-in-law to accommodate the complainant. He therefore contended that he could not have committed the alleged offence.
18. On sentence, the Appellant submitted that the life imprisonment imposed upon him was harsh, excessive and unlawful. He urged this Court to allow the appeal, quash the conviction, set aside the sentence and order his release.
19. The Respondent filed written submissions dated 2nd September 2026. It submitted that the prosecution had proved the complainant's age, penetration and the Appellant's identity as the perpetrator.
20. On age and relationship, the Respondent submitted that PW1 testified that she was 15 years old and that the Appellant did not dispute either her age or the fact that she was his daughter.
21. On penetration, the Respondent submitted that the complainant's evidence, considered together with the medical findings, established the offence. It relied on section 124 of the Evidence Act and submitted that the complainant's use of expressions such as “bad manners” did not render her evidence ambiguous, having regard to her age and difficulties in articulation.
22. On the alibi, the Respondent submitted that the burden of disproving it rested upon the prosecution but contended that the defence was an afterthought because it was raised at the defence stage. It also pointed to alleged inconsistencies between the Appellant's evidence and that of DW3 concerning the time when he left home.
23. The Respondent submitted that the Appellant's identity was not in dispute because he was the complainant's father. It urged the Court to dismiss the appeal and uphold the conviction and sentence.
24. This Court has considered the grounds of appeal, the evidence adduced before the trial court, the Appellant’s defence, the written submissions by both parties and the applicable law. The following issues arise for determination:
1) Whether the charge was defective or there was a material variance between the charge and the evidence.
2) Whether the prosecution proved the complainant’s age and the prohibited relationship required for the offence of incest.
3) Whether penetration was proved.
4) Whether the Appellant was proved beyond reasonable doubt to be the perpetrator, having regard to his defence of alibi.
5) Whether the conviction was safe.
6) Whether the sentence imposed was lawful and proper.
25. This being a first appeal, this Court is required to subject the evidence to a fresh and exhaustive examination, weigh the conflicting evidence and draw its own conclusions, while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. This is the duty set out in Okeno v Republic [1972] EA 32.
26. I also note that the trial court did not make any determination on the second count of assault causing actual bodily harm. There being no conviction or sentence on that count, it does not arise for determination in this appeal.
27. The first issue for determination is whether the charge was defective or whether there was a material variance between the charge and the evidence.
28. The Appellant contends that the charge was defective because the complainant's evidence used expressions such as “something” and “bad manners” rather than expressly stating that the Appellant inserted his penis into her vagina.
29. Section 134 of the Criminal Procedure Code requires a charge to contain such particulars as are necessary to give reasonable information as to the nature of the offence charged. In Omambia v Republic [1995] KECA 156 (KLR), the Court of Appeal emphasised the importance of sufficient particulars to enable an accused person to understand the case he is required to answer.
30. The charge in the present case stated the date, place, age of the complainant, the alleged act of penetration, the manner in which penetration was allegedly caused and the relationship between the Appellant and the complainant. It therefore disclosed the nature and particulars of the allegation with sufficient clarity.
31. The evidence of PW1 must be considered in its entirety. Although she referred to “something” on her stomach and “bad manners”, she went further and stated that the Appellant put his “thing” into her private part. Her evidence was therefore not confined to the expressions upon which the Appellant relies.
32. The complainant was a child and the evidence was that she had difficulties with speech and eyesight and was mentally challenged. Her use of child-like or imprecise language cannot, without more, amount to a variance between the charge and the evidence.
33. The Appellant understood the allegation sufficiently to deny it and to raise a defence that he was elsewhere when the alleged offence occurred. The charge did not occasion him prejudice in the conduct of his defence.
34. This Court therefore finds that the charge was not defective and that no material variance between the charge and the evidence was established. This issue is determined against the Appellant.
35. The second issue for determination is whether the prosecution proved the complainant's age and the prohibited relationship.
36. PW1 testified that she was 15 years old. The age assessment report dated 13th June 2022, produced as PExh.5, also assessed her age at 15 years. The Appellant did not dispute that she was 15 years old. He also did not dispute that she was his daughter.
37. The Appellant's objection to the competence of the maker of the age assessment report therefore does not affect the determination of this issue. The complainant's age and her relationship to the Appellant were not seriously in dispute.
38. This court accordingly finds that the prosecution proved the complainant's age and the prohibited relationship.
39. The third issue for determination is whether penetration was proved. PW1 testified that while she was asleep, she felt someone on her stomach and that the Appellant put his “thing” into her private part. She also stated that she felt him removing her clothes. Although the language used by PW1 was not technical, it described an act involving her private part. Her evidence must be considered in the context of her age and the evidence concerning her difficulty in speech and mental functioning.
40. PW4 examined the complainant on 10th June 2022. The P3 and PRC forms recorded no injuries to the genitalia, although the hymen was noted to be not intact. In David Mwingirwa v Republic [2017] KECA 666 (KLR), the Court of Appeal cautioned against treating the condition of the hymen as conclusive proof of sexual intercourse. In the circumstances of this case, the medical findings were consistent with and corroborated the complainant's account of penetration.
41. The absence of genital injuries did not, by itself, disprove the complainant's account. The medical evidence, when considered together with PW1's testimony, therefore provided corroboration of the alleged sexual act and this court therefore finds that the evidence established the alleged penetration.
42. The fourth issue for determination is whether the Appellant was proved beyond reasonable doubt to be the perpetrator, having regard to his defence of alibi.
43. PW1 stated that it was her father who committed the alleged sexual act. Her evidence therefore directly implicated the Appellant.
44. The Appellant denied committing the offence. He testified that after disciplining the complainant on the evening of 9th June 2022, he left to go to work and asked his sister-in-law to take care of the complainant in his absence. This aspect of his evidence was materially supported by DW3, who testified that at about 7.00 p.m. the Appellant asked her to accommodate the complainant for the night because he was going to work. DW2 similarly stated that the complainant had been left in the care of DW3 on the material date.
45. The burden of disproving an alibi rest upon the prosecution and does not shift to the accused person. In Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR), the Court of Appeal reaffirmed that an accused person who raises an alibi assumes no burden of proving it. The fact that an alibi is raised at the defence stage does not, by itself, render it an afterthought. It must be considered against the evidence as a whole. See Joseph Waiguru Wang’ombe v Republic [1980] KECA 6 (KLR).
46. The evidence of alibi that the Appellant took the complainant to DW3’s home for the night because he was going to work was corroborated by DW2 and DW3. More significantly, the charge alleged that the offence occurred at an unknown time during the night. The prosecution did not establish the particular time when the alleged act occurred, nor did it adduce evidence showing that the Appellant returned to the complainant after she had been taken to DW3's home.
47. In Ouma v Republic [1986] KECA 50 (KLR),the Court of Appeal emphasised the need to consider whether the evidence as a whole left a reasonable possibility that the accused person was elsewhere when the offence was committed. Applying that principle to the evidence before me, this court finds that the prosecution did not satisfactorily exclude that possibility.
48. This court therefore finds that, notwithstanding PW1's evidence implicating the Appellant, the prosecution failed to prove beyond reasonable doubt that he was the perpetrator. The alibi, considered together with the evidence as a whole, raises a reasonable doubt which must be resolved in favour of the Appellant.
49. The fifth issue for determination is whether the conviction was safe. Having re-evaluated the evidence as required of a first appellate court, I find that although the prosecution established the complainant's age, her relationship with the Appellant and the alleged penetration, it did not prove beyond reasonable doubt that the Appellant was the person who committed the act. The reasonable doubt arising from the Appellant's alibi must be resolved in his favour.
50. This court therefore finds that the conviction for incest contrary to section 20(1) of the Sexual Offences Act was unsafe and cannot stand.
51. The final issue concerns the sentence. The Appellant was convicted on 24th August 2023 and sentenced to life imprisonment on 4th September 2023. The quashing of the conviction consequently leaves no lawful basis for the sentence, which must also be set aside.
52. In the result, the appeal is allowed.The conviction of the Appellant, Dominic Mutie Ndola, for incest contrary to section 20(1) of the Sexual Offences Act is hereby quashed. The sentence of life imprisonment imposed on 4th September 2023 is hereby set aside.
53. The Appellant shall be set at liberty forthwith unless otherwise lawfully held.
2. In the second count, the Appellant was charged with assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars were that on the 9th day of June 2022 at about 1730 hours, at Mutini village, Mutini sub-location, Mutini location in Kitui County, he willfully and unlawfully assaulted F.M.M., thereby occasioning her actual bodily harm.
3. The prosecution called five witnesses. PW1, F.M.M., the complainant, testified that she was aged 15 years and was in Class 5. She recalled returning home from school when her father asked to see her books and questioned her about her poor handwriting. He beat her. Later, they went to sleep on the same bed. While she was asleep, she felt someone on her stomach. She stated that the Appellant did “bad manners” to her by putting his “thing” into her private part and that she felt him removing her clothes. She subsequently went to school and reported the incident to her teacher. She also reported that she had sustained wounds from the beating. She stated that this was not the first occasion on which her father had done such things to her.
4. PW2, Rafarsa Mwangangi, a teacher at Mutini Primary School, testified that the complainant was a pupil at the school and had difficulties with speech and eyesight and was mentally challenged. On 10th June 2022, the complainant informed the teachers that her father had beaten her and that during the night she had felt her father on her stomach. The assistant chief was informed, after which the complainant was taken to Kabati Police Station and thereafter to Kauwi Hospital.
5. PW3, Justus Munyau Nzenya, the Assistant Chief, Mutini Sub-location, testified that on 10th June 2022 he was called by the complainant's head teacher. He went to the school and was informed that the complainant had been beaten and defiled by her father. He took the complainant to the police station and assisted the police in locating the Appellant.
6. PW4, Robinson Katana Musyoka, the medical officer, examined the complainant. He produced the P3 form dated 10th June 2022 as PExh.1 and the PRC form dated 10th June 2022 as PExh.2. The forms recorded no injuries to the genitalia, although the hymen was noted to be not intact. PW4 also produced the age assessment report dated 13th June 2022 as PExh.5, which assessed the complainant's age at 15 years.
7. PW5, PC Mary Njeru, the investigating officer, testified that she interrogated the complainant, who told her that she had been beaten and defiled by her father. The complainant had bruises on her leg, hand and back. PW5 took the complainant to Kauwi Hospital and recorded witness statements. Upon completion of the investigations, the Appellant was charged with incest and assault causing actual bodily harm.
8. The Appellant gave sworn evidence and denied defiling the complainant. He testified that on the material day his sister-in-law came to his home at about 3.00 p.m. to 4.00 p.m., after which they went to fetch water. When the complainant returned from school, he asked for her books and found that she had not done the teacher's work for three days. He caned her and thereafter left home to go to work, having asked his sister-in-law to take care of the complainant in his absence. He maintained that he did not sleep at home that night. The following day, he went to Kabati Police Station after learning that the complainant had been taken there. He stated that he remained at the station awaiting the police officers who had gone to collect the child and was subsequently arrested. He maintained that he had only disciplined the complainant because he wanted her to have a better life.
9. DW2 stated that the complainant had been left in her care when the Appellant went to work. She stated that the complainant had been left in the Appellant's care when she was still a small baby and that she had taken care of her since then. She stated that she had never seen the Appellant behave in the manner alleged.
10. DW3 stated that she was present when the Appellant caned the complainant for failing to do the teacher's work and thereafter accompanied him to fetch water, with the complainant taking the water home. At about 7.00 p.m., the Appellant asked her to take in the complainant for the night as he was going to work, which she did. The following day, at about 3.00 p.m., the Sub-Chief went to her home looking for the Appellant. She informed him that he had left for work, whereupon the Sub-Chief obtained his telephone number and called him. The Appellant subsequently returned and was informed that the police had taken the complainant.
11. At the close of the trial, the trial magistrate convicted the Appellant on the first count on 24th August 2023 and on 4th September 2023 sentenced him to life imprisonment. There was no determination of the second count of assault causing actual bodily harm.
12. Aggrieved by the conviction and sentence on the first count, the Appellant lodged the present appeal on 6th September 2023 on the following grounds:
1) That the learned trial magistrate erred in both law and fact by convicting him despite inconsistent and insufficient evidence.
2) That the credibility of PW1's evidence was questionable and doubtful.
3) That the trial court prejudiced him by conducting a flawed trial.
4) That the trial court overlooked vital elements in favour of the prosecution while ignoring his evidence.
5) That the medical evidence adduced by the medical officer, which the learned trial magistrate relied upon, was obscure and professionally dysfunctional.
6) That the learned trial magistrate gravely erred in rejecting his plausible defence.
7) That the sentence imposed was severe, illegal and unconstitutional.
13. The Appellant filed written submissions dated 25th August 2026. He submitted that the charge sheet was defective because the particulars alleged that he caused penetration by inserting his penis into the complainant's vagina, whereas the complainant testified that she felt “something” on her stomach and that “bad manners” had been done to her. He contended that the evidence was at variance with the particulars of the charge.
14. The Appellant challenged the medical evidence on the ground that PW4 was not the maker of the medical documents produced before the trial court. He also challenged the contents of the medical evidence, including the entry concerning the approximate age of the injury and its description. He challenged the age assessment report on the ground that its maker was not qualified to conduct the assessment.
15. The Appellant further submitted that penetration had not been proved. He conceded that the complainant was his daughter and did not seriously dispute her age, but maintained that the evidence did not establish that penetration had occurred.
16. The Appellant also challenged the reliance on the complainant's evidence under section 124 of the Evidence Act, contending that her difficulties with speech and other faculties required her evidence to be subjected to careful scrutiny. He also questioned the circumstances and timing of the report.
17. On the defence, the Appellant submitted that he had raised an alibi. He stated that on the material night he had gone to work and had asked his sister-in-law to accommodate the complainant. He therefore contended that he could not have committed the alleged offence.
18. On sentence, the Appellant submitted that the life imprisonment imposed upon him was harsh, excessive and unlawful. He urged this Court to allow the appeal, quash the conviction, set aside the sentence and order his release.
19. The Respondent filed written submissions dated 2nd September 2026. It submitted that the prosecution had proved the complainant's age, penetration and the Appellant's identity as the perpetrator.
20. On age and relationship, the Respondent submitted that PW1 testified that she was 15 years old and that the Appellant did not dispute either her age or the fact that she was his daughter.
21. On penetration, the Respondent submitted that the complainant's evidence, considered together with the medical findings, established the offence. It relied on section 124 of the Evidence Act and submitted that the complainant's use of expressions such as “bad manners” did not render her evidence ambiguous, having regard to her age and difficulties in articulation.
22. On the alibi, the Respondent submitted that the burden of disproving it rested upon the prosecution but contended that the defence was an afterthought because it was raised at the defence stage. It also pointed to alleged inconsistencies between the Appellant's evidence and that of DW3 concerning the time when he left home.
23. The Respondent submitted that the Appellant's identity was not in dispute because he was the complainant's father. It urged the Court to dismiss the appeal and uphold the conviction and sentence.
24. This Court has considered the grounds of appeal, the evidence adduced before the trial court, the Appellant’s defence, the written submissions by both parties and the applicable law. The following issues arise for determination:
1) Whether the charge was defective or there was a material variance between the charge and the evidence.
2) Whether the prosecution proved the complainant’s age and the prohibited relationship required for the offence of incest.
3) Whether penetration was proved.
4) Whether the Appellant was proved beyond reasonable doubt to be the perpetrator, having regard to his defence of alibi.
5) Whether the conviction was safe.
6) Whether the sentence imposed was lawful and proper.
25. This being a first appeal, this Court is required to subject the evidence to a fresh and exhaustive examination, weigh the conflicting evidence and draw its own conclusions, while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. This is the duty set out in Okeno v Republic [1972] EA 32.
26. I also note that the trial court did not make any determination on the second count of assault causing actual bodily harm. There being no conviction or sentence on that count, it does not arise for determination in this appeal.
27. The first issue for determination is whether the charge was defective or whether there was a material variance between the charge and the evidence.
28. The Appellant contends that the charge was defective because the complainant's evidence used expressions such as “something” and “bad manners” rather than expressly stating that the Appellant inserted his penis into her vagina.
29. Section 134 of the Criminal Procedure Code requires a charge to contain such particulars as are necessary to give reasonable information as to the nature of the offence charged. In Omambia v Republic [1995] KECA 156 (KLR), the Court of Appeal emphasised the importance of sufficient particulars to enable an accused person to understand the case he is required to answer.
30. The charge in the present case stated the date, place, age of the complainant, the alleged act of penetration, the manner in which penetration was allegedly caused and the relationship between the Appellant and the complainant. It therefore disclosed the nature and particulars of the allegation with sufficient clarity.
31. The evidence of PW1 must be considered in its entirety. Although she referred to “something” on her stomach and “bad manners”, she went further and stated that the Appellant put his “thing” into her private part. Her evidence was therefore not confined to the expressions upon which the Appellant relies.
32. The complainant was a child and the evidence was that she had difficulties with speech and eyesight and was mentally challenged. Her use of child-like or imprecise language cannot, without more, amount to a variance between the charge and the evidence.
33. The Appellant understood the allegation sufficiently to deny it and to raise a defence that he was elsewhere when the alleged offence occurred. The charge did not occasion him prejudice in the conduct of his defence.
34. This Court therefore finds that the charge was not defective and that no material variance between the charge and the evidence was established. This issue is determined against the Appellant.
35. The second issue for determination is whether the prosecution proved the complainant's age and the prohibited relationship.
36. PW1 testified that she was 15 years old. The age assessment report dated 13th June 2022, produced as PExh.5, also assessed her age at 15 years. The Appellant did not dispute that she was 15 years old. He also did not dispute that she was his daughter.
37. The Appellant's objection to the competence of the maker of the age assessment report therefore does not affect the determination of this issue. The complainant's age and her relationship to the Appellant were not seriously in dispute.
38. This court accordingly finds that the prosecution proved the complainant's age and the prohibited relationship.
39. The third issue for determination is whether penetration was proved. PW1 testified that while she was asleep, she felt someone on her stomach and that the Appellant put his “thing” into her private part. She also stated that she felt him removing her clothes. Although the language used by PW1 was not technical, it described an act involving her private part. Her evidence must be considered in the context of her age and the evidence concerning her difficulty in speech and mental functioning.
40. PW4 examined the complainant on 10th June 2022. The P3 and PRC forms recorded no injuries to the genitalia, although the hymen was noted to be not intact. In David Mwingirwa v Republic [2017] KECA 666 (KLR), the Court of Appeal cautioned against treating the condition of the hymen as conclusive proof of sexual intercourse. In the circumstances of this case, the medical findings were consistent with and corroborated the complainant's account of penetration.
41. The absence of genital injuries did not, by itself, disprove the complainant's account. The medical evidence, when considered together with PW1's testimony, therefore provided corroboration of the alleged sexual act and this court therefore finds that the evidence established the alleged penetration.
42. The fourth issue for determination is whether the Appellant was proved beyond reasonable doubt to be the perpetrator, having regard to his defence of alibi.
43. PW1 stated that it was her father who committed the alleged sexual act. Her evidence therefore directly implicated the Appellant.
44. The Appellant denied committing the offence. He testified that after disciplining the complainant on the evening of 9th June 2022, he left to go to work and asked his sister-in-law to take care of the complainant in his absence. This aspect of his evidence was materially supported by DW3, who testified that at about 7.00 p.m. the Appellant asked her to accommodate the complainant for the night because he was going to work. DW2 similarly stated that the complainant had been left in the care of DW3 on the material date.
45. The burden of disproving an alibi rest upon the prosecution and does not shift to the accused person. In Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR), the Court of Appeal reaffirmed that an accused person who raises an alibi assumes no burden of proving it. The fact that an alibi is raised at the defence stage does not, by itself, render it an afterthought. It must be considered against the evidence as a whole. See Joseph Waiguru Wang’ombe v Republic [1980] KECA 6 (KLR).
46. The evidence of alibi that the Appellant took the complainant to DW3’s home for the night because he was going to work was corroborated by DW2 and DW3. More significantly, the charge alleged that the offence occurred at an unknown time during the night. The prosecution did not establish the particular time when the alleged act occurred, nor did it adduce evidence showing that the Appellant returned to the complainant after she had been taken to DW3's home.
47. In Ouma v Republic [1986] KECA 50 (KLR),the Court of Appeal emphasised the need to consider whether the evidence as a whole left a reasonable possibility that the accused person was elsewhere when the offence was committed. Applying that principle to the evidence before me, this court finds that the prosecution did not satisfactorily exclude that possibility.
48. This court therefore finds that, notwithstanding PW1's evidence implicating the Appellant, the prosecution failed to prove beyond reasonable doubt that he was the perpetrator. The alibi, considered together with the evidence as a whole, raises a reasonable doubt which must be resolved in favour of the Appellant.
49. The fifth issue for determination is whether the conviction was safe. Having re-evaluated the evidence as required of a first appellate court, I find that although the prosecution established the complainant's age, her relationship with the Appellant and the alleged penetration, it did not prove beyond reasonable doubt that the Appellant was the person who committed the act. The reasonable doubt arising from the Appellant's alibi must be resolved in his favour.
50. This court therefore finds that the conviction for incest contrary to section 20(1) of the Sexual Offences Act was unsafe and cannot stand.
51. The final issue concerns the sentence. The Appellant was convicted on 24th August 2023 and sentenced to life imprisonment on 4th September 2023. The quashing of the conviction consequently leaves no lawful basis for the sentence, which must also be set aside.
52. In the result, the appeal is allowed.The conviction of the Appellant, Dominic Mutie Ndola, for incest contrary to section 20(1) of the Sexual Offences Act is hereby quashed. The sentence of life imprisonment imposed on 4th September 2023 is hereby set aside.
53. The Appellant shall be set at liberty forthwith unless otherwise lawfully held.