1. The appellant, Edward Machoge Nyabiage, was charged before the Senior Principal Magistrate's Court at Keroka with the offence of incest contrary to section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on 20th November 2022 at Nyangori Area in Masaba North Sub-County within Nyamira County, he intentionally and unlawfully caused penetration of the vagina of B.K.M., a child aged six years, knowing her to be his daughter. In the alternative, he faced a charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
2. PW1, B.K.M., the complainant, testified as a minor witness. Having been subjected to voire dire examination, the trial court found that although she did not understand the nature of an oath, she nonetheless appreciated the difference between truth and falsehood, and she was accordingly permitted to give unsworn evidence. Her account, given first in Kiswahili and later, upon recall, in Ekegusii, was that the appellant, whom she identified as her father, called her to the kitchen and thereafter directed her to accompany him to the bathroom. There, he told her to remove her dress and panty, removed his own trousers and underwear, and inserted his penis into her vagina, causing her pain. She stated that he threatened to stab her with a knife should she disclose the incident to anyone, and that he had defiled her on previous occasions. On the first occasion she attempted to testify, she broke down in tears after stating that her father had done bad things to her, necessitating an adjournment. On the second occasion, testifying with the aid of a protective facility arranged through the Witness Protection Agency, she narrated the events with composure and consistency, and maintained her account under cross-examination.
3. PW2, EMM, the complainant's younger brother, corroborated the complainant's account to the extent that he stated he had observed the appellant's feet and shoes in the bathroom, that he saw the complainant enter the bathroom, and that the bathroom lacked a door. He stated that the complainant informed him, upon emerging from the bathroom, that the appellant had done bad things to her. He was the one who reported the matter to their mother, PW3.
4. PW3, Wilma Kemunto, the complainant's mother and the appellant's wife, testified that upon returning home from work on the material day, she was informed by PW2 of what had occurred. She examined the complainant's genitalia and observed a discharge. She attempted unsuccessfully to summon the appellant, who did not respond, and enlisted the help of a neighbour, one Pauline, who managed to call the appellant out of the house and who, according to PW3, also inspected the complainant and confirmed that she had been defiled. PW3 thereafter reported the matter to clan elders, who referred her to the police, and the complainant was subsequently examined at Keroka Sub-County Hospital. PW3 produced the complainant's birth certificate, which recorded her date of birth as 03rd July 2017, clarifying an earlier discrepancy where a different date had been given to the police. Under cross-examination, PW3 conceded to a history of marital discord with the appellant, including allegations that she had been infected with HIV by him, but denied that she had coached the complainant to testify falsely or that she harboured any grudge resulting in a false implication of the appellant.
5. PW4, Janet Moraa, the clinical officer who examined the complainant on the day of the incident, testified that she found no injuries to the complainant generally, that the external genitalia appeared normal, that the hymen was missing though not freshly torn, and that laboratory investigation of the high vaginal swab revealed the presence of pus cells and red blood cells. She explained that pus cells were indicative of infection and that red blood cells could indicate an inflammation or irritation associated with penetration. She concluded that there was an impression of alleged defilement. On cross-examination, she conceded that she could not ascertain the cause of the missing hymen, that a subsequent HIV test after the requisite three-month window had not been conducted, and that a torn or missing hymen was not, in every case, a necessary indicator of penetration.
6. PW5, PC Daniel Obiero, the investigating officer, testified as to the circumstances of the report, the arrest of the appellant following a period during which he could not be traced, and the recovery of the complainant's birth certificate confirming her age. He recounted what he had been told by the complainant and by PW2 in the course of his investigations. Under cross-examination, he denied any impropriety in the conduct of the investigation and denied the appellant's suggestion that he had solicited a bribe.
7. In his defence, the appellant gave a sworn statement in which he denied committing the offence, attributed the charge to marital discord with PW3 arising from their differing HIV status and her alleged infidelity, and contended that had he defiled the complainant while himself being HIV positive, she would necessarily have tested positive as well. He further contended that the investigating officer had not properly investigated the matter and that he had been assaulted while in custody, though this was not raised before the trial court at the time.
8. Upon a full trial in which the prosecution called five witnesses, the learned trial magistrate found the appellant guilty of the main charge, convicted him and sentenced him to thirty (30) years' imprisonment.
9. Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal challenging the findings of the trial court on both factual and legal grounds.
10. In his petition of appeal, the appellant contends that:
1) That the trial magistrate erred in both law and fact by convicting the appellant without observing that the offence had not been proved beyond the required standard.
2) That the trial magistrate further erred in both law and fact by convicting the appellant without observing that the investigations conducted in the case were scanty and shoddy, and incapable of sustaining a safe conviction.
3) That the trial magistrate erred in both law and fact by relying on medical evidence that was unreliable and improperly relied upon.
4) That the trial magistrate erred in both law and fact by convicting the appellant despite the presence of material contradictions in the prosecution evidence, thereby rendering the conviction unsafe.
11. The appellant amplified those grounds through written submissions dated 30th April 2026 in which he principally attacked the credibility of the prosecution witnesses. He argued that their testimonies were inconsistent on material particulars, that crucial witnesses were not called, and that the investigations fell below the standard expected in criminal proceedings. He maintained that those deficiencies created reasonable doubt which ought to have been resolved in his favour.
12. This being a first appeal, this Court is under a duty to re-evaluate and re-analyse the entire evidence adduced before the trial court and to arrive at its own independent conclusions. In undertaking that exercise, however, the Court must bear in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. The principles governing the duty of a first appellate court were succinctly stated in Okeno v Republic [1972] EA 32, where the former Court of Appeal for East Africa held that a first appellate court is obliged to subject the evidence to a fresh and exhaustive examination, weigh the conflicting evidence and draw its own conclusions while making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
13. I have carefully considered the petition of appeal, the appellant's written submissions, the record of the proceedings before the trial court and the impugned judgment. In my view, the appeal raises the following issues for determination:
1) Whether the prosecution proved the offence of incest contrary to section 20(1) of the Sexual Offences Act beyond reasonable doubt.
2) Whether the alleged inconsistencies in the prosecution evidence and the complaints regarding the investigations rendered the conviction unsafe.
3) Whether the Appellant’s defence was given due consideration
4) Whether there is any basis for this Court to interfere with the sentence imposed by the trial court.
14. Before considering those issues, it is necessary to restate the legal ingredients of the offence. Section 20(1) of the Sexual Offences Act criminalises an act of penetration committed by a male person with a female person to whom he is related within the prohibited degrees of consanguinity, where the relationship is known to the offender. Accordingly, the prosecution was required to establish beyond reasonable doubt that there was penetration, that the complainant was related to the appellant within the prohibited degree, and that the appellant knew of that relationship.
15. The prosecution bore the burden of proving each of the essential ingredients of the offence beyond reasonable doubt, a burden that never shifted to the appellant. The appellant assumed no obligation to prove his innocence, and any reasonable doubt arising from the evidence had to be resolved in his favour. As the Court of Appeal observed in Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR), the accused person's defence must nevertheless be considered and weighed alongside the prosecution evidence before the court determines whether the prosecution has discharged its burden.
16. Having re-evaluated the evidence, I turn to whether the ingredients of incest were proved beyond reasonable doubt, before addressing the alleged inconsistencies and the sentence. On the element of relationship, PW3 confirmed her marriage to the appellant and that the complainant was a child of that union, a fact corroborated by PW2 and by the birth certificate produced through PW5 naming the appellant as father. Paternity was never disputed. This ingredient is proved beyond reasonable doubt.
17. As to the age of the complainant, the certified birth certificate, Serial Number A4156432, indicated a date of birth of 3rd July 2017, making her five years and eight months old at the time of the alleged offence on 20th November 2022. The charge sheet indicated an age of six years, a minor discrepancy that does not, in my view, occasion any prejudice to the appellant nor detract from the fact that the complainant was, on any view of the evidence, a child of tender years falling squarely within the class of persons the Sexual Offences Act seeks to protect, being a child under the age of eighteen years for whom the enhanced penalty under the proviso to section 20(1) applies. I am satisfied that the age of the complainant was proved with the requisite certainty.
18. On penetration, the complainant's evidence, given first with visible distress and, upon recall, with composure and consistency, was direct and unequivocal that the appellant inserted his penis into her vagina. That account remained consistent in both her examination-in-chief and cross-examination. It was materially corroborated by PW2, EMM, who testified that he saw the appellant's shoes outside the bathroom and, shortly thereafter, saw both the appellant and the complainant emerge from the bathroom. When he asked the complainant what had transpired, she immediately disclosed that the appellant had done "bad manners" to her inside the bathroom, prompting PW2 to report the matter to PW3. During cross-examination, PW2 maintained that although he did not witness the act itself, he saw the appellant's shoes outside the bathroom, saw the appellant and the complainant emerge therefrom, and relayed the complainant's immediate disclosure to PW3. PW3 confirmed that upon returning home on 20th November 2022, PW2 informed her that the appellant had done "bad manners" to the complainant in the bathroom. On examining the complainant, PW3 noticed a discharge from her genitalia before reporting the matter to the authorities and taking her to hospital. The evidence of PW4, the clinical officer, further supported that account. PW4 testified that the presence of red blood cells on the high vaginal swab was indicative of inflammation or irritation consistent with penetration, notwithstanding that the hymen was not freshly torn.
19. The appellant nevertheless challenged the medical evidence as "shady", "shoddy" and fabricated. The record provides no basis for that contention. PW4, a qualified clinical officer, examined the complainant on the material day, recorded her findings contemporaneously in the P3 Form and the Post Rape Care (PRC) Form, and gave a coherent account of both her findings and their clinical significance, which remained unshaken during cross-examination. Although PW4 properly acknowledged that the medical findings were not, by themselves, conclusive proof of penetration, the learned trial magistrate did not treat them as such but correctly considered them alongside the complainant's direct evidence and the surrounding circumstances. That approach was consistent with section 124 of the Evidence Act, which permits a court to convict on the evidence of a complainant in a sexual offence, provided that the court records the reasons for believing that evidence.
20. In the present case, the trial court expressly found the complainant to be a truthful witness after observing her demeanour while testifying, and her evidence was materially reinforced by her prompt report to PW2, PW2's immediate disclosure to PW3, PW3's observations upon examining the complainant, and the medical findings of PW4. Upon my own re-evaluation of the record, I find no reason to depart from that assessment. I am satisfied that the complainant's evidence was truthful and credible and, taken together with the supporting evidence on record, established the ingredient of penetration beyond reasonable doubt.
21. On the question of identification, the offence occurred in broad daylight within the family home. The complainant was in no doubt as to the identity of her assailant, whom she knew as her biological father. This was therefore a case of recognition rather than visual identification by a stranger. The appellant nevertheless contended that PW2 gave inconsistent evidence by stating at one point that he saw only the appellant's shoes outside the bathroom and elsewhere that he saw both the appellant and the complainant emerge from the bathroom. I do not consider that discrepancy material. PW2 was a child witness recounting events that had occurred when he himself was of tender years. His evidence consistently placed the appellant at the bathroom with the complainant immediately before the complainant disclosed to him that the appellant had done "bad manners" to her. The alleged inconsistency neither detracts from the evidence of penetration nor casts doubt on the appellant's identity as the perpetrator. As the Court of Appeal observed in Watu v Republic [2016] KECA 696 (KLR), the court must determine whether discrepancies are minor or whether they go to the root of the prosecution case, bearing in mind that no two witnesses can be expected to recall events with exact precision. I find the discrepancy complained of to be peripheral and incapable of creating a reasonable doubt.
22. Having re-evaluated the evidence, I am satisfied that the appellant was positively recognised as the perpetrator. The complainant's evidence on recognition was clear, unwavering and consistent, and there was no possibility of mistaken identity. I therefore find that the prosecution proved the identity of the appellant beyond reasonable doubt.
23. The appellant also challenged the credibility of the prosecution case on the basis that PW2 testified that he was arrested about two days after the incident whereas PW3 stated that he was arrested several months later. I do not consider that discrepancy to be material. The documentary record, particularly the charge sheet, shows that the offence was allegedly committed on 20th November 2022 and that the appellant was arrested on 16th November 2023. More importantly, the period that elapsed before the appellant's arrest is not an ingredient of the offence charged and has no bearing on whether the prosecution proved the relationship between the appellant and the complainant, the complainant's age, penetration, or the appellant's identity as the perpetrator. The inconsistency complained of therefore relates to a collateral matter occurring after the commission of the offence and is incapable of undermining the cogent evidence establishing the essential ingredients of the charge or creating a reasonable doubt as to the appellant's guilt.
24. The appellant further contended that the investigations were inadequate because the prosecution failed to call Kerubo, Pauline, the clan elder and Agnes, the complainant's grandmother, all of whom were mentioned during the trial and whom, in his view, would have corroborated the prosecution case and enabled the court to establish the truth. While section 143 of the Evidence Act provides that no particular number of witnesses is required to prove any fact, that provision does not oblige the prosecution to call every person mentioned in the evidence but only those whose evidence is necessary to establish the charge. As the Court of Appeal observed in Omambia & 2 others v Republic [2026] KECA 966 (KLR) that the purpose of a criminal trial is to ensure a fair evaluation of the evidence and, although no particular number of witnesses is prescribed, the prosecution is expected to avail witnesses necessary to establish the truth.
25. Consequently, I find as did the trial court, that the evidence of the complainant, PW2, PW3, PW4 and PW5 sufficiently established each of the essential ingredients of the offence beyond reasonable doubt. The appellant has not demonstrated that the evidence of the omitted witnesses would have been material to the determination of the charge, that their absence occasioned him any prejudice, or that it rendered the prosecution case unsafe.
26. The appellant also placed considerable reliance on the fact that he tested HIV positive while the complainant tested negative, contending that this scientifically excluded him as the perpetrator. However, PW4 explained, and was not challenged on this evidence, that HIV has an incubation period and that a conclusive determination of transmission could only be made after a follow-up test conducted at least three months after the alleged exposure. No such follow-up test was carried out on the complainant. In those circumstances, the negative HIV result recorded on the date of the medical examination was inconclusive as to whether transmission had occurred. Moreover, even if the complainant had remained HIV negative after the appropriate testing period, the absence of transmission would not, without more, negate the evidence of penetration, since transmission of HIV does not inevitably occur following every act of sexual intercourse or sexual assault. The appellant's reliance on the differing HIV test results therefore does not undermine the otherwise cogent evidence establishing the offence or create a reasonable doubt as to his guilt.
27. The appellant's defence was essentially a denial of the charge coupled with the assertion that the complaint was fabricated by PW3 owing to differences in their relationship, including allegations that he had infected her with HIV. He maintained that PW3 had influenced the complainant and PW2 to testify falsely against him. As a first appellate court, I have reconsidered that defence alongside the prosecution evidence in its entirety. The record, however, discloses no evidential basis for the allegations of fabrication or coaching. The complainant gave a coherent and consistent account of the incident, which she maintained during cross-examination and which was materially corroborated by the evidence of PW2, PW3, PW4 and PW5 on the essential elements of the offence. The existence of domestic differences between the appellant and PW3, without more, does not establish that the complaint was fabricated or that the prosecution witnesses were coached to testify falsely. I therefore find that the learned trial magistrate properly rejected the appellant's defence, as it did not raise a reasonable doubt capable of displacing the prosecution case.
28. Finally, on sentence, the appellant was sentenced to thirty (30) years' imprisonment upon conviction. It is now settled that sentencing is a matter resting within the discretion of the trial court and that an appellate court will not readily interfere with the sentence imposed unless it is shown that the sentence is manifestly excessive in the circumstances, that the trial court overlooked a material factor, took into account an irrelevant consideration, or acted on a wrong principle. Even where the appellate court might itself have imposed a different sentence, that alone is not a sufficient basis for interfering with the exercise of the trial court's discretion. See (Agumba & another v Republic [2026] KECA 1160 (KLR).
29. The proviso to section 20(1) of the Sexual Offences Act provides that where it is alleged in the charge and proved that the female person is under the age of eighteen years, the offender "shall be liable to imprisonment for life." The complainant was five years and eight months old at the time of the offence, and the appellant was her biological father. The offence therefore involved a grave breach of parental trust against a child of tender years. In those circumstances, I find no basis for concluding that the learned trial magistrate acted on a wrong principle or imposed a sentence that was manifestly excessive, and consequently there is no justification for this Court to interfere with the sentence imposed.
30. In the result, I find no merit in this appeal. The conviction of the appellant for the offence of incest contrary to section 20(1) of the Sexual Offences Act is hereby upheld. T he sentence of thirty (30) years' imprisonment is likewise affirmed. In compliance with section 333(2) of the Criminal Procedure Code, the sentence shall be computed from 16th November 2023, being the date on which the appellant was arrested and first remanded in custody.
2. PW1, B.K.M., the complainant, testified as a minor witness. Having been subjected to voire dire examination, the trial court found that although she did not understand the nature of an oath, she nonetheless appreciated the difference between truth and falsehood, and she was accordingly permitted to give unsworn evidence. Her account, given first in Kiswahili and later, upon recall, in Ekegusii, was that the appellant, whom she identified as her father, called her to the kitchen and thereafter directed her to accompany him to the bathroom. There, he told her to remove her dress and panty, removed his own trousers and underwear, and inserted his penis into her vagina, causing her pain. She stated that he threatened to stab her with a knife should she disclose the incident to anyone, and that he had defiled her on previous occasions. On the first occasion she attempted to testify, she broke down in tears after stating that her father had done bad things to her, necessitating an adjournment. On the second occasion, testifying with the aid of a protective facility arranged through the Witness Protection Agency, she narrated the events with composure and consistency, and maintained her account under cross-examination.
3. PW2, EMM, the complainant's younger brother, corroborated the complainant's account to the extent that he stated he had observed the appellant's feet and shoes in the bathroom, that he saw the complainant enter the bathroom, and that the bathroom lacked a door. He stated that the complainant informed him, upon emerging from the bathroom, that the appellant had done bad things to her. He was the one who reported the matter to their mother, PW3.
4. PW3, Wilma Kemunto, the complainant's mother and the appellant's wife, testified that upon returning home from work on the material day, she was informed by PW2 of what had occurred. She examined the complainant's genitalia and observed a discharge. She attempted unsuccessfully to summon the appellant, who did not respond, and enlisted the help of a neighbour, one Pauline, who managed to call the appellant out of the house and who, according to PW3, also inspected the complainant and confirmed that she had been defiled. PW3 thereafter reported the matter to clan elders, who referred her to the police, and the complainant was subsequently examined at Keroka Sub-County Hospital. PW3 produced the complainant's birth certificate, which recorded her date of birth as 03rd July 2017, clarifying an earlier discrepancy where a different date had been given to the police. Under cross-examination, PW3 conceded to a history of marital discord with the appellant, including allegations that she had been infected with HIV by him, but denied that she had coached the complainant to testify falsely or that she harboured any grudge resulting in a false implication of the appellant.
5. PW4, Janet Moraa, the clinical officer who examined the complainant on the day of the incident, testified that she found no injuries to the complainant generally, that the external genitalia appeared normal, that the hymen was missing though not freshly torn, and that laboratory investigation of the high vaginal swab revealed the presence of pus cells and red blood cells. She explained that pus cells were indicative of infection and that red blood cells could indicate an inflammation or irritation associated with penetration. She concluded that there was an impression of alleged defilement. On cross-examination, she conceded that she could not ascertain the cause of the missing hymen, that a subsequent HIV test after the requisite three-month window had not been conducted, and that a torn or missing hymen was not, in every case, a necessary indicator of penetration.
6. PW5, PC Daniel Obiero, the investigating officer, testified as to the circumstances of the report, the arrest of the appellant following a period during which he could not be traced, and the recovery of the complainant's birth certificate confirming her age. He recounted what he had been told by the complainant and by PW2 in the course of his investigations. Under cross-examination, he denied any impropriety in the conduct of the investigation and denied the appellant's suggestion that he had solicited a bribe.
7. In his defence, the appellant gave a sworn statement in which he denied committing the offence, attributed the charge to marital discord with PW3 arising from their differing HIV status and her alleged infidelity, and contended that had he defiled the complainant while himself being HIV positive, she would necessarily have tested positive as well. He further contended that the investigating officer had not properly investigated the matter and that he had been assaulted while in custody, though this was not raised before the trial court at the time.
8. Upon a full trial in which the prosecution called five witnesses, the learned trial magistrate found the appellant guilty of the main charge, convicted him and sentenced him to thirty (30) years' imprisonment.
9. Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal challenging the findings of the trial court on both factual and legal grounds.
10. In his petition of appeal, the appellant contends that:
1) That the trial magistrate erred in both law and fact by convicting the appellant without observing that the offence had not been proved beyond the required standard.
2) That the trial magistrate further erred in both law and fact by convicting the appellant without observing that the investigations conducted in the case were scanty and shoddy, and incapable of sustaining a safe conviction.
3) That the trial magistrate erred in both law and fact by relying on medical evidence that was unreliable and improperly relied upon.
4) That the trial magistrate erred in both law and fact by convicting the appellant despite the presence of material contradictions in the prosecution evidence, thereby rendering the conviction unsafe.
11. The appellant amplified those grounds through written submissions dated 30th April 2026 in which he principally attacked the credibility of the prosecution witnesses. He argued that their testimonies were inconsistent on material particulars, that crucial witnesses were not called, and that the investigations fell below the standard expected in criminal proceedings. He maintained that those deficiencies created reasonable doubt which ought to have been resolved in his favour.
12. This being a first appeal, this Court is under a duty to re-evaluate and re-analyse the entire evidence adduced before the trial court and to arrive at its own independent conclusions. In undertaking that exercise, however, the Court must bear in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. The principles governing the duty of a first appellate court were succinctly stated in Okeno v Republic [1972] EA 32, where the former Court of Appeal for East Africa held that a first appellate court is obliged to subject the evidence to a fresh and exhaustive examination, weigh the conflicting evidence and draw its own conclusions while making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
13. I have carefully considered the petition of appeal, the appellant's written submissions, the record of the proceedings before the trial court and the impugned judgment. In my view, the appeal raises the following issues for determination:
1) Whether the prosecution proved the offence of incest contrary to section 20(1) of the Sexual Offences Act beyond reasonable doubt.
2) Whether the alleged inconsistencies in the prosecution evidence and the complaints regarding the investigations rendered the conviction unsafe.
3) Whether the Appellant’s defence was given due consideration
4) Whether there is any basis for this Court to interfere with the sentence imposed by the trial court.
14. Before considering those issues, it is necessary to restate the legal ingredients of the offence. Section 20(1) of the Sexual Offences Act criminalises an act of penetration committed by a male person with a female person to whom he is related within the prohibited degrees of consanguinity, where the relationship is known to the offender. Accordingly, the prosecution was required to establish beyond reasonable doubt that there was penetration, that the complainant was related to the appellant within the prohibited degree, and that the appellant knew of that relationship.
15. The prosecution bore the burden of proving each of the essential ingredients of the offence beyond reasonable doubt, a burden that never shifted to the appellant. The appellant assumed no obligation to prove his innocence, and any reasonable doubt arising from the evidence had to be resolved in his favour. As the Court of Appeal observed in Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR), the accused person's defence must nevertheless be considered and weighed alongside the prosecution evidence before the court determines whether the prosecution has discharged its burden.
16. Having re-evaluated the evidence, I turn to whether the ingredients of incest were proved beyond reasonable doubt, before addressing the alleged inconsistencies and the sentence. On the element of relationship, PW3 confirmed her marriage to the appellant and that the complainant was a child of that union, a fact corroborated by PW2 and by the birth certificate produced through PW5 naming the appellant as father. Paternity was never disputed. This ingredient is proved beyond reasonable doubt.
17. As to the age of the complainant, the certified birth certificate, Serial Number A4156432, indicated a date of birth of 3rd July 2017, making her five years and eight months old at the time of the alleged offence on 20th November 2022. The charge sheet indicated an age of six years, a minor discrepancy that does not, in my view, occasion any prejudice to the appellant nor detract from the fact that the complainant was, on any view of the evidence, a child of tender years falling squarely within the class of persons the Sexual Offences Act seeks to protect, being a child under the age of eighteen years for whom the enhanced penalty under the proviso to section 20(1) applies. I am satisfied that the age of the complainant was proved with the requisite certainty.
18. On penetration, the complainant's evidence, given first with visible distress and, upon recall, with composure and consistency, was direct and unequivocal that the appellant inserted his penis into her vagina. That account remained consistent in both her examination-in-chief and cross-examination. It was materially corroborated by PW2, EMM, who testified that he saw the appellant's shoes outside the bathroom and, shortly thereafter, saw both the appellant and the complainant emerge from the bathroom. When he asked the complainant what had transpired, she immediately disclosed that the appellant had done "bad manners" to her inside the bathroom, prompting PW2 to report the matter to PW3. During cross-examination, PW2 maintained that although he did not witness the act itself, he saw the appellant's shoes outside the bathroom, saw the appellant and the complainant emerge therefrom, and relayed the complainant's immediate disclosure to PW3. PW3 confirmed that upon returning home on 20th November 2022, PW2 informed her that the appellant had done "bad manners" to the complainant in the bathroom. On examining the complainant, PW3 noticed a discharge from her genitalia before reporting the matter to the authorities and taking her to hospital. The evidence of PW4, the clinical officer, further supported that account. PW4 testified that the presence of red blood cells on the high vaginal swab was indicative of inflammation or irritation consistent with penetration, notwithstanding that the hymen was not freshly torn.
19. The appellant nevertheless challenged the medical evidence as "shady", "shoddy" and fabricated. The record provides no basis for that contention. PW4, a qualified clinical officer, examined the complainant on the material day, recorded her findings contemporaneously in the P3 Form and the Post Rape Care (PRC) Form, and gave a coherent account of both her findings and their clinical significance, which remained unshaken during cross-examination. Although PW4 properly acknowledged that the medical findings were not, by themselves, conclusive proof of penetration, the learned trial magistrate did not treat them as such but correctly considered them alongside the complainant's direct evidence and the surrounding circumstances. That approach was consistent with section 124 of the Evidence Act, which permits a court to convict on the evidence of a complainant in a sexual offence, provided that the court records the reasons for believing that evidence.
20. In the present case, the trial court expressly found the complainant to be a truthful witness after observing her demeanour while testifying, and her evidence was materially reinforced by her prompt report to PW2, PW2's immediate disclosure to PW3, PW3's observations upon examining the complainant, and the medical findings of PW4. Upon my own re-evaluation of the record, I find no reason to depart from that assessment. I am satisfied that the complainant's evidence was truthful and credible and, taken together with the supporting evidence on record, established the ingredient of penetration beyond reasonable doubt.
21. On the question of identification, the offence occurred in broad daylight within the family home. The complainant was in no doubt as to the identity of her assailant, whom she knew as her biological father. This was therefore a case of recognition rather than visual identification by a stranger. The appellant nevertheless contended that PW2 gave inconsistent evidence by stating at one point that he saw only the appellant's shoes outside the bathroom and elsewhere that he saw both the appellant and the complainant emerge from the bathroom. I do not consider that discrepancy material. PW2 was a child witness recounting events that had occurred when he himself was of tender years. His evidence consistently placed the appellant at the bathroom with the complainant immediately before the complainant disclosed to him that the appellant had done "bad manners" to her. The alleged inconsistency neither detracts from the evidence of penetration nor casts doubt on the appellant's identity as the perpetrator. As the Court of Appeal observed in Watu v Republic [2016] KECA 696 (KLR), the court must determine whether discrepancies are minor or whether they go to the root of the prosecution case, bearing in mind that no two witnesses can be expected to recall events with exact precision. I find the discrepancy complained of to be peripheral and incapable of creating a reasonable doubt.
22. Having re-evaluated the evidence, I am satisfied that the appellant was positively recognised as the perpetrator. The complainant's evidence on recognition was clear, unwavering and consistent, and there was no possibility of mistaken identity. I therefore find that the prosecution proved the identity of the appellant beyond reasonable doubt.
23. The appellant also challenged the credibility of the prosecution case on the basis that PW2 testified that he was arrested about two days after the incident whereas PW3 stated that he was arrested several months later. I do not consider that discrepancy to be material. The documentary record, particularly the charge sheet, shows that the offence was allegedly committed on 20th November 2022 and that the appellant was arrested on 16th November 2023. More importantly, the period that elapsed before the appellant's arrest is not an ingredient of the offence charged and has no bearing on whether the prosecution proved the relationship between the appellant and the complainant, the complainant's age, penetration, or the appellant's identity as the perpetrator. The inconsistency complained of therefore relates to a collateral matter occurring after the commission of the offence and is incapable of undermining the cogent evidence establishing the essential ingredients of the charge or creating a reasonable doubt as to the appellant's guilt.
24. The appellant further contended that the investigations were inadequate because the prosecution failed to call Kerubo, Pauline, the clan elder and Agnes, the complainant's grandmother, all of whom were mentioned during the trial and whom, in his view, would have corroborated the prosecution case and enabled the court to establish the truth. While section 143 of the Evidence Act provides that no particular number of witnesses is required to prove any fact, that provision does not oblige the prosecution to call every person mentioned in the evidence but only those whose evidence is necessary to establish the charge. As the Court of Appeal observed in Omambia & 2 others v Republic [2026] KECA 966 (KLR) that the purpose of a criminal trial is to ensure a fair evaluation of the evidence and, although no particular number of witnesses is prescribed, the prosecution is expected to avail witnesses necessary to establish the truth.
25. Consequently, I find as did the trial court, that the evidence of the complainant, PW2, PW3, PW4 and PW5 sufficiently established each of the essential ingredients of the offence beyond reasonable doubt. The appellant has not demonstrated that the evidence of the omitted witnesses would have been material to the determination of the charge, that their absence occasioned him any prejudice, or that it rendered the prosecution case unsafe.
26. The appellant also placed considerable reliance on the fact that he tested HIV positive while the complainant tested negative, contending that this scientifically excluded him as the perpetrator. However, PW4 explained, and was not challenged on this evidence, that HIV has an incubation period and that a conclusive determination of transmission could only be made after a follow-up test conducted at least three months after the alleged exposure. No such follow-up test was carried out on the complainant. In those circumstances, the negative HIV result recorded on the date of the medical examination was inconclusive as to whether transmission had occurred. Moreover, even if the complainant had remained HIV negative after the appropriate testing period, the absence of transmission would not, without more, negate the evidence of penetration, since transmission of HIV does not inevitably occur following every act of sexual intercourse or sexual assault. The appellant's reliance on the differing HIV test results therefore does not undermine the otherwise cogent evidence establishing the offence or create a reasonable doubt as to his guilt.
27. The appellant's defence was essentially a denial of the charge coupled with the assertion that the complaint was fabricated by PW3 owing to differences in their relationship, including allegations that he had infected her with HIV. He maintained that PW3 had influenced the complainant and PW2 to testify falsely against him. As a first appellate court, I have reconsidered that defence alongside the prosecution evidence in its entirety. The record, however, discloses no evidential basis for the allegations of fabrication or coaching. The complainant gave a coherent and consistent account of the incident, which she maintained during cross-examination and which was materially corroborated by the evidence of PW2, PW3, PW4 and PW5 on the essential elements of the offence. The existence of domestic differences between the appellant and PW3, without more, does not establish that the complaint was fabricated or that the prosecution witnesses were coached to testify falsely. I therefore find that the learned trial magistrate properly rejected the appellant's defence, as it did not raise a reasonable doubt capable of displacing the prosecution case.
28. Finally, on sentence, the appellant was sentenced to thirty (30) years' imprisonment upon conviction. It is now settled that sentencing is a matter resting within the discretion of the trial court and that an appellate court will not readily interfere with the sentence imposed unless it is shown that the sentence is manifestly excessive in the circumstances, that the trial court overlooked a material factor, took into account an irrelevant consideration, or acted on a wrong principle. Even where the appellate court might itself have imposed a different sentence, that alone is not a sufficient basis for interfering with the exercise of the trial court's discretion. See (Agumba & another v Republic [2026] KECA 1160 (KLR).
29. The proviso to section 20(1) of the Sexual Offences Act provides that where it is alleged in the charge and proved that the female person is under the age of eighteen years, the offender "shall be liable to imprisonment for life." The complainant was five years and eight months old at the time of the offence, and the appellant was her biological father. The offence therefore involved a grave breach of parental trust against a child of tender years. In those circumstances, I find no basis for concluding that the learned trial magistrate acted on a wrong principle or imposed a sentence that was manifestly excessive, and consequently there is no justification for this Court to interfere with the sentence imposed.
30. In the result, I find no merit in this appeal. The conviction of the appellant for the offence of incest contrary to section 20(1) of the Sexual Offences Act is hereby upheld. T he sentence of thirty (30) years' imprisonment is likewise affirmed. In compliance with section 333(2) of the Criminal Procedure Code, the sentence shall be computed from 16th November 2023, being the date on which the appellant was arrested and first remanded in custody.