A. INTRODUCTION
1. The Appellant, Eliud Barasa Walukano, was convicted after a full trial of the offence of incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on the night of 8th/9th June 2017 at Kilimani Village, Chwele Location, Bungoma Central Sub-County within Bungoma County, the Appellant unlawfully caused his penis to penetrate the vagina of P.N.B., who was to his knowledge his daughter. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same night and at the same place, the Appellant unlawfully caused his penis to touch the vagina of P.N.B., a girl aged 8 years.
2. On 26th March 2021, the trial court found the Appellant guilty of the main charge of incest and sentenced him to 20 years imprisonment. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 6th May 2021, raising the following grounds: that he did not plead guilty; that the trial magistrate erred in law and fact by convicting him without proper inquiry and investigations; that the trial magistrate erred in failing to consider circumstantial evidence; that the trial magistrate grossly erred in convicting the Appellant in the absence of medical examination reports from both parties as stipulated under Section 36 of the Sexual Offences Act; and that the trial magistrate erred in law and fact by applying a wrong principle of conviction, thereby rejecting the Appellant's defence which sufficiently created a reasonable doubt.
3. The Appellant urges this Court to allow the appeal, quash the conviction, set aside the sentence and order that he be set at liberty, or in the alternative, grant such other relief as this Court may deem appropriate.
B. THE DUTY OF THIS COURT
4. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour. As was stated by the Court of Appeal in Okeno v Republic [1972] EA 32, the first appellate court must subject the evidence to exhaustive examination and reach its own conclusions, making proper allowance for the fact that it has not seen the witnesses. This principle has been consistently affirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174 and David Njuguna Wairimu v Republic [2010] eKLR.
C. SUMMARY OF THE PROSECUTION EVIDENCE
5. The prosecution called eight witnesses. PW1, the complainant P.N.B., testified after a successful voir dire examination that the Appellant was her father, whom she identified in court. She stated that on the night of 8th June 2017, her mother had gone to hospital with her sick sister H and had not returned. The Appellant, who ordinarily worked as a watchman at night, told the children he was not going to work and they could sleep at home. The family house had one bedroom for the parents and a sitting room with no door between them. She and her sister P went to sleep on the mattress in the parents' bedroom while the Appellant slept on a mattress on the floor in the sitting room. During the night, she felt the Appellant on top of her and discovered that her pants had been removed. The Appellant used his penis and inserted it into her vagina. She felt pain and cried, but her sister P was asleep. The Appellant warned her not to tell anyone or he would beat and kill her. The following morning she could not go to school because her chest and private parts were painful. When her mother returned that evening she disclosed what had happened, and her mother bathed her — causing more pain — before taking her to hospital and reporting to the police. On cross-examination, PW1 confirmed that the Appellant was her father, that it was the first time he had done that to her, that there was blood on her dress, that she recognised him by his voice, and that no one had told her to lie against him.
6. PW2, P.N.B. (the second daughter), gave unsworn evidence following a voir dire examination, as she was too young to understand the nature of an oath. She confirmed that the complainant was her sister and that the Appellant was her father. She recalled that their mother had taken H to hospital and had not returned, and that they spent that night at a neighbour's house before returning home the following day when the Appellant said he would not go to work. She went to school the next morning and upon returning found the complainant still in bed. She noticed blood and when she asked the complainant what had happened, the complainant told her that the Appellant — their father — had done bad things to her. Their mother had not yet returned when the incident occurred. On cross-examination, PW2 confirmed that the Appellant was her father, that he was a watchman, and that no one had told her to lie against him.
7. PW3, Monica Chepkurui Barasa, the mother of the complainant and wife to the Appellant, testified that she had lived with the Appellant since 1999 and they have ten children together, including the complainant. On 7th June 2017, her daughter H fell ill and she took her to Majanja Hospital, leaving the other children in the Appellant's care. H was admitted and she had to remain at the hospital. She was unable to reach the Appellant during this period and returned home with H on 9th June 2017 at around 6:00 pm. She found the complainant asleep in the sitting room. Upon waking the complainant for supper, she noticed the child was in pain and had a headache. She then noticed a strange smell from the complainant's private parts, found a discharge on examination, and observed blood stains on the complainant's skirt. The complainant disclosed that her father had done bad manners to her. PW3 bathed the complainant and took her to hospital, and also reported the matter to Nyumba Kumi elders. She stated that the complainant had told her this was not the first time. When she confronted the Appellant, he claimed the complainant had a mental illness. On cross-examination, she confirmed that they had ten children together, that the Appellant was a watchman, that she had not threatened the Appellant, and that she had not had an affair with another man.
8. PW4, Julius Wepukhulu Kituyi, the Nyumba Kumi chairman, testified that on 29th June 2017 he received a report from a neighbour that the Appellant had defiled his daughter. He reported to the Assistant Chief and was asked to go with another Nyumba Kumi elder to arrest the Appellant. He found the Appellant at the home of a person called Doris, approximately 50 metres from the Appellant's house, and arrested him and took him to Chwele Police Station accompanied by PW1 and PW3. He confirmed that the Appellant was the son of his uncle and a watchman.
9. PW5, Rebman Kasembelini Kituyi, a Nyumba Kumi coordinator, testified that on 29th June 2017 he was called by PW4 to assist in arresting the Appellant who had allegedly defiled his daughter. He joined the arrest and escorted the Appellant to the police station, where PW1 identified the Appellant. He confirmed that the Appellant had already committed the offence at the time of arrest and that the information about the offence came from the complainant.
10. PW6, Tom Barasa Juma, a clinical officer at Bungoma County Referral Hospital (formerly at Chwele Sub-County Hospital), testified that on 11th June 2017 the complainant, an 8-year-old girl, was brought to the facility. She had a history of defilement on the night of 8th June 2017 by a person known to her. On vaginal examination, PW6 found bruises on the labia majora and labia minora, a broken hymen, swollen and bruised vulva, and a smelly yellowish discharge. Laboratory results showed puss cells in the urine. She was HIV negative and VDRL negative. PW6 concluded that the complainant had been penetrated by a penis. He also conducted an age assessment using the dental formula — noting that both molars were erupting and the complainant had 28 teeth — and determined her age to be approximately 8 years. He produced the P3 form, treatment notes and age assessment form. On cross-examination, he confirmed that only the complainant and not the Appellant was examined.
11. PW7, Richard Kimutai Langat, a Government Analyst at Kisumu with 27 years of experience and a gazetted officer, testified that pursuant to a court order dated 21st November 2017, he received samples from PW1 (the complainant), PW3 (the mother), and the Appellant for DNA analysis. He explained that every person inherits half of their DNA from their biological mother and half from their biological father. Upon analysis, the results showed that the complainant had inherited half of her DNA from PW3 and the other half from the Appellant. He concluded that there is a 99.99% probability that the Appellant is the complainant's biological father.
12. PW8, PC Wilson Maina Muriuki, the Investigating Officer, testified that on 26th June 2017 the complainant arrived at Chwele Police Station, accompanied by her mother, and reported that she had been defiled by her father. The complainant was in poor health. He issued a P3 form and accompanied the complainant to Chwele Sub-County Hospital. Upon returning to the station, he found that the Appellant had already been arrested by Nyumba Kumi elders. He re-arrested the Appellant and recorded statements. The Appellant denied the allegations. Through his investigations, he established that the Appellant had defiled the complainant on the night of 8th to 9th June 2017. He confirmed the DNA results, age assessment, P3 form and treatment notes. On cross-examination, he stated that the complainant's clothes had been cleaned by the time of investigations and were therefore not available as exhibits.
13. Upon a finding of a prima facie case, the Appellant was placed on his defence and informed of his rights under Section 211 of the Criminal Procedure Code. He elected to give unsworn evidence. He testified that on 29th June 2017 he was at Makongeni at around 2:00 pm and met two people who told him that chicken was being sold at a certain place in Chwele. He went to Chwele near the police station and entered the station. He did not directly address the allegations against him.
14. DW2, Cyrus Juma Walukano, the Appellant's brother, testified that the Appellant was arrested on 30th June 2017. He knew the Appellant as a chicken businessman, and confirmed that PW1 and PW2 were the Appellant's children and that they were living together with him. He did not know whether his brother had defiled the complainant.
15. DW3, Josephat Mulwalo, testified that he knew the Appellant as a chicken businessman who operated within Makhonge market and Chwele. On 29th June 2017 he heard that the Appellant had committed an offence. He was surprised as he considered the Appellant a good man in the village and did not believe the allegations against him.
E. PARTIES' SUBMISSIONS
Appellant's Submissions
16. The Appellant canvassed his appeal by way of written submissions and raised several grounds of law. On the question of plea taking, the Appellant submitted that the manner in which the plea was recorded was irregular and violated his constitutional rights under Article 50(2) of the Constitution and Section 207(1), (2) and (3) of the Criminal Procedure Code. He argued that the trial court was under a mandatory duty to read out the charge and explain every element of the offence to the accused in a language he understands, and that it is insufficient for a court to merely record the plea without indicating how it was taken or demonstrating that the substance of the charge and its constituent elements were explained to the accused. He relied on the decisions in Ephantus Kamau & Another v Republic [2014] eKLR and Erick Omondi Mboya v Republic HCCRA No. 36 of 2014 (Eldoret) in support of this proposition.
17. The Appellant submitted that proper plea taking is the genesis and core foundation of a fair trial because it is only upon being properly informed of the charge that an accused person can make an informed decision on whether to affirm or deny it. He contended that the failure of the trial court to properly inform him of the charge constituted a violation of his constitutional right to a fair trial. He further submitted, pursuant to Section 134 of the CPC, that the particulars of the charge are an integral part of the charge itself, and that in the present case the complainant's name as stated in the charge sheet was different from the name she used when she testified, and similarly the names in the DNA report were different. He argued that the charge sheet was therefore defective and the proceedings founded upon it are irregular.
18. On the question of legal representation, the Appellant submitted that he was not informed of his right to legal counsel at the commencement of proceedings, in violation of Article 50(2)(g) of the Constitution. He relied on Njuguna v Republic [2007] 2 EA 370, where the court held that failure to inform an accused person of his legal rights is not a mere procedural irregularity curable under Section 382 of the CPC. He submitted that he is a layman aged 70 years who was unrepresented throughout the trial, and that the trial court was under a duty to inquire whether he was capable of self-representation, given the seriousness of the charge and the severe consequences of a conviction. He relied on Republic v Karisa Chengo & 2 Others [2017] eKLR, which held that an indigent accused is entitled to state-funded legal representation, and on Albanus Mwasa Mutua v Republic CRA No. 120 of 2014, which held that an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the strength of the prosecution evidence. He further cited Patrick Oduot Ochieng v Republic CRA No. 49 of 2020 [2022] KECA 23 eKLR, where the Court of Appeal held that the operative circumstance triggering the necessity of legal representation is where substantial injustice would result from the complexity and seriousness of the charge.
19. The Appellant also submitted that the prosecution failed to disclose to him the evidence it intended to rely upon at trial, including witness statements and documentary exhibits. He relied on Thomas Patrick Cholmondeley v Republic CRA No. 116 of 2007, where the court affirmed that the prosecution bears a duty of pre-trial disclosure requiring that all statements and exhibits intended to be used by the prosecution be availed to the defence beforehand, whether or not a formal request is made. He contended that this failure violated his constitutional rights under Articles 50(2)(c) and 50(2)(j) of the Constitution, being the right to adequate time and facilities to prepare a defence and the right to be informed in advance of the evidence to be relied upon.
20. Finally, the Appellant submitted on sentence that the trial court did not direct that the sentence be computed from the date he first went into custody. He urged this Court to consider that he had been in custody for 3 years, 20 months and 3 days prior to conviction, in accordance with the mandatory provisions of Section 333(2) of the Criminal Procedure Code.
Respondent's Submissions
21. The Respondent opposed the appeal against conviction in its entirety and urged this Court to uphold the conviction. The State further sought enhancement of the sentence from 20 years to 40 years imprisonment. The Respondent submitted that the prosecution proved all the essential ingredients of the offence of incest beyond reasonable doubt, that the conviction entered by the trial court was proper and supported by the evidence, that the Appellant was correctly identified as the perpetrator, and that DNA evidence conclusively established that the complainant was the Appellant's biological daughter. The Respondent relied on four key exhibits — the Attendance Card (Exhibit 1), the P3 Form (Exhibit 2), the Age Assessment Report (Exhibit 3), and the DNA Test Results — which it argued collectively established all the ingredients of the offence.
22. On the age of the complainant, the Respondent submitted that there was overwhelming evidence establishing that she was approximately 8 years old at the time of the offence. The prosecution relied on the Age Assessment Report, the P3 Form, and the complainant's own testimony, in which she stated she was 10 years old at the time she gave evidence. The Respondent cited Richard Wahome Chege v Republic Criminal Appeal No. 61 of 2014, where the Court of Appeal held that age need not be proved exclusively through a birth certificate, and that testimony from a parent, medical evidence, and other supporting evidence may sufficiently establish age. The State also relied on Francis Omironi v Uganda Criminal Appeal No. 2 of 2000, where the court emphasised that medical evidence is important in age determination and that age may also be proved through parental testimony and common-sense observation.
23. On the question of penetration, the Respondent submitted that it was proved both through the medical evidence contained in the P3 Form and through the complainant's testimony. Relying on Section 2 of the Sexual Offences Act, the Respondent submitted that penetration means the partial or complete insertion of the genital organs of one person into those of another. The State cited Mark Oiruri Mose v Republic [2013] eKLR for the proposition that penetration need not be deep and that proof of spermatozoa is not necessary — slight penetration is sufficient. The State further relied on Erick Onyango Ondeng v Republic [2014] eKLR, which affirmed that the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence and that rupture of the hymen is not a prerequisite.
24. On the identification of the Appellant, the Respondent submitted that there was no possibility of mistaken identity because the complainant knew the Appellant well, was living with him, recognised him as her father, and had frequent interaction with him throughout her life. The State relied on Ogeto v Republic [2004] KLR 19 and submitted that this was a case of recognition rather than mere identification, and that since the complainant was identifying her own father, there was no realistic possibility of error.
25. On proof of the close blood relationship required for the offence of incest, the Respondent submitted that the complainant's own testimony identified the Appellant as her father, and that this was conclusively corroborated by the DNA evidence. The Government Analyst, PW7, testified that the DNA analysis established a 99.99% probability that the Appellant is the biological father of the complainant, which the Respondent argued conclusively proved the consanguinity element of the charge. The Respondent submitted that having regard to the complainant's testimony, the medical evidence, the age assessment evidence, the DNA evidence and the circumstantial evidence collectively, the trial court was correct in finding that the prosecution had proved the case beyond reasonable doubt, and urged this Court not to interfere with the conviction.
26. On sentence, the Respondent made substantial submissions in favour of enhancement. The State cited Section 20(1) of the Sexual Offences Act and emphasised the proviso thereto, which provides that where the female victim is under 18 years of age and the offence is proved, the offender is liable to imprisonment for life. The Respondent highlighted the following aggravating factors: the complainant was approximately 8 years old; the Appellant was her biological father; the abuse was committed against a very young child who depended entirely on the Appellant for her security, maintenance and protection; the child suffered physical, psychological and emotional harm; and the offence constituted a gross abuse of parental trust and authority. The Respondent submitted that the sentence of 20 years imprisonment did not adequately reflect the gravity of the offence.
27. In support of the prayer for sentence enhancement, the Respondent relied on Rotike v Republic (Miscellaneous Criminal Application No. E014 of 2021), where the court affirmed that in sentencing, courts retain discretion and should consider aggravating factors including the age of the child, the manner in which the offence was committed, and the physical and emotional harm caused. The Respondent also relied on Supreme Court Petition No. E018 of 2023 — Republic v Joshua Gichui Mwangi & Initiative for Strategic Litigation in Africa (ISLA) and Others — to support the proposition that substantial custodial sentences under the Sexual Offences Act remain lawful and enforceable, and that the provisions of the Sexual Offences Act on sentencing continue to apply. The Respondent ultimately prayed that this Court dismiss the appeal, uphold the conviction, and enhance the sentence from 20 years to 40 years imprisonment.
F. ANALYSIS AND DETERMINATION
Issue 1: Regularity of Plea Taking and Compliance with Article 50(2)(b)
28. The Appellant's first substantive ground is that the plea was taken irregularly, in breach of Article 50(2)(b) of the Constitution and Section 207 of the Criminal Procedure Code. The record shows that on 3rd July 2017, the Appellant took plea in Kiswahili — a language he confirmed he understood — and that the trial magistrate recorded that every element of the charge was explained to the Appellant in Kiswahili, to which he responded 'It is not true.' On the amended charge taken on 4th October 2017, the record similarly reflects a plea of not guilty.
29. The test for regularity of plea taking was comprehensively stated by the Court of Appeal in Ephantus Kamau & Another v Republic [2014] eKLR, where the court held that the charge and every element thereof must be stated or explained to an accused person in a language they understand before a plea is recorded. Where the record affirmatively demonstrates that the elements of the charge were explained in a language understood by the accused and the accused responded by denying the charge, the provisions of Article 50(2)(b) are satisfied. The record in this case states precisely that: that every element of the charge was explained to the Appellant in Kiswahili which he understood. This Court is satisfied that the plea was taken regularly. This ground fails.
30. On the question of the discrepancy between the complainant's name in the charge sheet and in her testimony, as well as the name discrepancy in the DNA report, this Court notes that these are minor variances that do not go to the root of the charge. As the Court of Appeal held in Phillip Nzaka Watu v Republic [2016] eKLR, minor discrepancies in evidence do not affect credibility or vitiate proceedings where the identity of the persons concerned is not genuinely in dispute. It has never been the Appellant's case that the complainant in the dock was a different person from the child named in the charge — his own brother DW2 confirmed that PW1 and PW2 are his children. This complaint is without substance.
Issue 2: Right to Legal Representation
31. The Appellant submits that he was not informed of his right to legal representation at the commencement of the trial, in violation of Article 50(2)(g) of the Constitution and Section 43(1)(a) and (b) of the Legal Aid Act. This is a ground that requires careful examination. The right to legal representation is a fundamental component of the right to a fair trial. The Court of Appeal in Patrick Oduot Ochieng v Republic [2022] KECA 23 eKLR affirmed that the operative circumstances triggering the necessity of state-funded legal representation are where substantial injustice would result from the complexity and seriousness of the charge. The offence of incest carries a minimum sentence of 15 years upon the facts of this case and the Appellant, an elderly man of 70 years, faced trial unrepresented.
32. However, the question of whether failure to inform an accused of the right to legal representation automatically vitiates a conviction requires a nuanced approach. The Court of Appeal in Republic v Karisa Chengo & 2 Others [2017] eKLR held that an accused who is indigent and faces a serious charge is entitled to state-funded representation. However, the same Court has also recognised in subsequent decisions that not every failure to inform an accused of the right to counsel will result in an acquittal — the court must examine whether the failure caused actual and material prejudice to the conduct of the defence. Where an accused conducted a vigorous defence, cross-examined witnesses, and called witnesses of their own, the courts have held that the omission to inform of the right to legal representation did not occasion a failure of justice: see Shadrack Kipkoech Kogo v Republic [2018] eKLR.
33. In the present case, the Appellant cross-examined prosecution witnesses, called two defence witnesses, and filed written submissions on appeal. His defence, though ultimately unsuccessful, was conducted actively. This Court does not find that the failure — if any — to inform the Appellant of his right to legal representation occasioned a failure of justice or resulted in a trial so fundamentally unfair as to require the conviction to be quashed. This ground does not succeed.
Issue 3: Pre-Trial Disclosure
34. The Appellant submits that the prosecution did not disclose witness statements and documentary evidence before trial. As the High Court stated in Thomas Patrick Cholmondeley v Republic CRA No. 116 of 2007, the prosecution bears a duty of pre-trial disclosure. However, the remedy for failure to disclose is ordinarily an adjournment to allow the defence time to consider the material, not an acquittal — unless the failure has caused such prejudice that a fair trial was rendered impossible. The Appellant has not demonstrated with specificity how the alleged failure to disclose any particular piece of evidence prevented him from preparing an adequate defence or caused material prejudice to his case. The DNA evidence, for instance, was the subject of a court order in which all parties participated. This ground fails.
Issue 4: Absence of Medical Examination of the Appellant under Section 36 of the Sexual Offences Act
35. The Appellant submits that the trial magistrate erred by convicting him in the absence of medical examination reports from both parties as required under Section 36 of the Sexual Offences Act. Section 36 of the Sexual Offences Act provides that a medical examination of the accused may be ordered to obtain evidence. It does not, however, make such an examination a mandatory prerequisite for a conviction. The Court of Appeal in Erick Onyango Ondeng v Republic [2014] eKLR affirmed that the offence of penetration can be proved through the complainant's testimony and medical evidence of the complainant alone, without a corresponding examination of the accused. PW6 confirmed on cross-examination that he only examined the complainant and not the Appellant, but this does not undermine the sufficiency of the prosecution evidence. This ground fails.
Issue 5: Whether the Elements of Incest Were Proved Beyond Reasonable Doubt
36. Age of the Complainant. The prosecution relied on the Age Assessment Report, the P3 Form and the complainant's own testimony to establish her age. PW6 conducted a clinical age assessment using the dental formula and determined the complainant to be approximately 8 years old. The P3 Form recorded her age as 8 years. The complainant herself testified that she was 10 years old at the time she gave evidence. As the Court of Appeal held in Richard Wahome Chege v Republic Criminal Appeal No. 61 of 2014, age need not be proved exclusively by a birth certificate and medical evidence combined with other supporting evidence is sufficient. This Court is satisfied that the complainant was a child of approximately 8 to 10 years at the date of the offence, well within the threshold of Section 20(3) of the Sexual Offences Act.
37. Penetration. PW1 testified in clear, cogent and age-appropriate language that the Appellant inserted his penis into her vagina and that she felt pain. The medical evidence of PW6 confirmed a broken hymen, bruising of the labia majora and labia minora, swelling of the vulva, and a smelly yellowish discharge — all consistent with penile penetration. PW6 concluded that the complainant had been penetrated by a penis. As affirmed in Mark Oiruri Mose v Republic [2013] eKLR, penetration need not be complete and no proof of spermatozoa is required. Penetration was proved beyond reasonable doubt.
38. Identification. The complainant identified the Appellant as her father throughout her testimony, confirmed on cross-examination. PW3 confirmed that the Appellant is the father of the complainant and they have lived together since 1999. PW2 similarly confirmed the Appellant as her father. As the Court of Appeal stated in Wamunga v Republic [1989] KLR 424, where identification is by recognition of a person well known to the witness, the dangers attending stranger identification do not apply with the same force. This was identification by recognition in the most reliable circumstances — a biological daughter identifying her father. There was no possibility of error.
39. Proof of the Blood Relationship. The consanguinity element — that the Appellant knew the complainant was his daughter — was proved by four independent sources: the complainant's own testimony; PW3's evidence; the Appellant's own admission at the time of plea that the complainant was his daughter; and, most conclusively, the DNA evidence of PW7, wh
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1. The Appellant, Eliud Barasa Walukano, was convicted after a full trial of the offence of incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on the night of 8th/9th June 2017 at Kilimani Village, Chwele Location, Bungoma Central Sub-County within Bungoma County, the Appellant unlawfully caused his penis to penetrate the vagina of P.N.B., who was to his knowledge his daughter. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same night and at the same place, the Appellant unlawfully caused his penis to touch the vagina of P.N.B., a girl aged 8 years.
2. On 26th March 2021, the trial court found the Appellant guilty of the main charge of incest and sentenced him to 20 years imprisonment. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 6th May 2021, raising the following grounds: that he did not plead guilty; that the trial magistrate erred in law and fact by convicting him without proper inquiry and investigations; that the trial magistrate erred in failing to consider circumstantial evidence; that the trial magistrate grossly erred in convicting the Appellant in the absence of medical examination reports from both parties as stipulated under Section 36 of the Sexual Offences Act; and that the trial magistrate erred in law and fact by applying a wrong principle of conviction, thereby rejecting the Appellant's defence which sufficiently created a reasonable doubt.
3. The Appellant urges this Court to allow the appeal, quash the conviction, set aside the sentence and order that he be set at liberty, or in the alternative, grant such other relief as this Court may deem appropriate.
B. THE DUTY OF THIS COURT
4. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour. As was stated by the Court of Appeal in Okeno v Republic [1972] EA 32, the first appellate court must subject the evidence to exhaustive examination and reach its own conclusions, making proper allowance for the fact that it has not seen the witnesses. This principle has been consistently affirmed by the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174 and David Njuguna Wairimu v Republic [2010] eKLR.
C. SUMMARY OF THE PROSECUTION EVIDENCE
5. The prosecution called eight witnesses. PW1, the complainant P.N.B., testified after a successful voir dire examination that the Appellant was her father, whom she identified in court. She stated that on the night of 8th June 2017, her mother had gone to hospital with her sick sister H and had not returned. The Appellant, who ordinarily worked as a watchman at night, told the children he was not going to work and they could sleep at home. The family house had one bedroom for the parents and a sitting room with no door between them. She and her sister P went to sleep on the mattress in the parents' bedroom while the Appellant slept on a mattress on the floor in the sitting room. During the night, she felt the Appellant on top of her and discovered that her pants had been removed. The Appellant used his penis and inserted it into her vagina. She felt pain and cried, but her sister P was asleep. The Appellant warned her not to tell anyone or he would beat and kill her. The following morning she could not go to school because her chest and private parts were painful. When her mother returned that evening she disclosed what had happened, and her mother bathed her — causing more pain — before taking her to hospital and reporting to the police. On cross-examination, PW1 confirmed that the Appellant was her father, that it was the first time he had done that to her, that there was blood on her dress, that she recognised him by his voice, and that no one had told her to lie against him.
6. PW2, P.N.B. (the second daughter), gave unsworn evidence following a voir dire examination, as she was too young to understand the nature of an oath. She confirmed that the complainant was her sister and that the Appellant was her father. She recalled that their mother had taken H to hospital and had not returned, and that they spent that night at a neighbour's house before returning home the following day when the Appellant said he would not go to work. She went to school the next morning and upon returning found the complainant still in bed. She noticed blood and when she asked the complainant what had happened, the complainant told her that the Appellant — their father — had done bad things to her. Their mother had not yet returned when the incident occurred. On cross-examination, PW2 confirmed that the Appellant was her father, that he was a watchman, and that no one had told her to lie against him.
7. PW3, Monica Chepkurui Barasa, the mother of the complainant and wife to the Appellant, testified that she had lived with the Appellant since 1999 and they have ten children together, including the complainant. On 7th June 2017, her daughter H fell ill and she took her to Majanja Hospital, leaving the other children in the Appellant's care. H was admitted and she had to remain at the hospital. She was unable to reach the Appellant during this period and returned home with H on 9th June 2017 at around 6:00 pm. She found the complainant asleep in the sitting room. Upon waking the complainant for supper, she noticed the child was in pain and had a headache. She then noticed a strange smell from the complainant's private parts, found a discharge on examination, and observed blood stains on the complainant's skirt. The complainant disclosed that her father had done bad manners to her. PW3 bathed the complainant and took her to hospital, and also reported the matter to Nyumba Kumi elders. She stated that the complainant had told her this was not the first time. When she confronted the Appellant, he claimed the complainant had a mental illness. On cross-examination, she confirmed that they had ten children together, that the Appellant was a watchman, that she had not threatened the Appellant, and that she had not had an affair with another man.
8. PW4, Julius Wepukhulu Kituyi, the Nyumba Kumi chairman, testified that on 29th June 2017 he received a report from a neighbour that the Appellant had defiled his daughter. He reported to the Assistant Chief and was asked to go with another Nyumba Kumi elder to arrest the Appellant. He found the Appellant at the home of a person called Doris, approximately 50 metres from the Appellant's house, and arrested him and took him to Chwele Police Station accompanied by PW1 and PW3. He confirmed that the Appellant was the son of his uncle and a watchman.
9. PW5, Rebman Kasembelini Kituyi, a Nyumba Kumi coordinator, testified that on 29th June 2017 he was called by PW4 to assist in arresting the Appellant who had allegedly defiled his daughter. He joined the arrest and escorted the Appellant to the police station, where PW1 identified the Appellant. He confirmed that the Appellant had already committed the offence at the time of arrest and that the information about the offence came from the complainant.
10. PW6, Tom Barasa Juma, a clinical officer at Bungoma County Referral Hospital (formerly at Chwele Sub-County Hospital), testified that on 11th June 2017 the complainant, an 8-year-old girl, was brought to the facility. She had a history of defilement on the night of 8th June 2017 by a person known to her. On vaginal examination, PW6 found bruises on the labia majora and labia minora, a broken hymen, swollen and bruised vulva, and a smelly yellowish discharge. Laboratory results showed puss cells in the urine. She was HIV negative and VDRL negative. PW6 concluded that the complainant had been penetrated by a penis. He also conducted an age assessment using the dental formula — noting that both molars were erupting and the complainant had 28 teeth — and determined her age to be approximately 8 years. He produced the P3 form, treatment notes and age assessment form. On cross-examination, he confirmed that only the complainant and not the Appellant was examined.
11. PW7, Richard Kimutai Langat, a Government Analyst at Kisumu with 27 years of experience and a gazetted officer, testified that pursuant to a court order dated 21st November 2017, he received samples from PW1 (the complainant), PW3 (the mother), and the Appellant for DNA analysis. He explained that every person inherits half of their DNA from their biological mother and half from their biological father. Upon analysis, the results showed that the complainant had inherited half of her DNA from PW3 and the other half from the Appellant. He concluded that there is a 99.99% probability that the Appellant is the complainant's biological father.
12. PW8, PC Wilson Maina Muriuki, the Investigating Officer, testified that on 26th June 2017 the complainant arrived at Chwele Police Station, accompanied by her mother, and reported that she had been defiled by her father. The complainant was in poor health. He issued a P3 form and accompanied the complainant to Chwele Sub-County Hospital. Upon returning to the station, he found that the Appellant had already been arrested by Nyumba Kumi elders. He re-arrested the Appellant and recorded statements. The Appellant denied the allegations. Through his investigations, he established that the Appellant had defiled the complainant on the night of 8th to 9th June 2017. He confirmed the DNA results, age assessment, P3 form and treatment notes. On cross-examination, he stated that the complainant's clothes had been cleaned by the time of investigations and were therefore not available as exhibits.
13. Upon a finding of a prima facie case, the Appellant was placed on his defence and informed of his rights under Section 211 of the Criminal Procedure Code. He elected to give unsworn evidence. He testified that on 29th June 2017 he was at Makongeni at around 2:00 pm and met two people who told him that chicken was being sold at a certain place in Chwele. He went to Chwele near the police station and entered the station. He did not directly address the allegations against him.
14. DW2, Cyrus Juma Walukano, the Appellant's brother, testified that the Appellant was arrested on 30th June 2017. He knew the Appellant as a chicken businessman, and confirmed that PW1 and PW2 were the Appellant's children and that they were living together with him. He did not know whether his brother had defiled the complainant.
15. DW3, Josephat Mulwalo, testified that he knew the Appellant as a chicken businessman who operated within Makhonge market and Chwele. On 29th June 2017 he heard that the Appellant had committed an offence. He was surprised as he considered the Appellant a good man in the village and did not believe the allegations against him.
E. PARTIES' SUBMISSIONS
Appellant's Submissions
16. The Appellant canvassed his appeal by way of written submissions and raised several grounds of law. On the question of plea taking, the Appellant submitted that the manner in which the plea was recorded was irregular and violated his constitutional rights under Article 50(2) of the Constitution and Section 207(1), (2) and (3) of the Criminal Procedure Code. He argued that the trial court was under a mandatory duty to read out the charge and explain every element of the offence to the accused in a language he understands, and that it is insufficient for a court to merely record the plea without indicating how it was taken or demonstrating that the substance of the charge and its constituent elements were explained to the accused. He relied on the decisions in Ephantus Kamau & Another v Republic [2014] eKLR and Erick Omondi Mboya v Republic HCCRA No. 36 of 2014 (Eldoret) in support of this proposition.
17. The Appellant submitted that proper plea taking is the genesis and core foundation of a fair trial because it is only upon being properly informed of the charge that an accused person can make an informed decision on whether to affirm or deny it. He contended that the failure of the trial court to properly inform him of the charge constituted a violation of his constitutional right to a fair trial. He further submitted, pursuant to Section 134 of the CPC, that the particulars of the charge are an integral part of the charge itself, and that in the present case the complainant's name as stated in the charge sheet was different from the name she used when she testified, and similarly the names in the DNA report were different. He argued that the charge sheet was therefore defective and the proceedings founded upon it are irregular.
18. On the question of legal representation, the Appellant submitted that he was not informed of his right to legal counsel at the commencement of proceedings, in violation of Article 50(2)(g) of the Constitution. He relied on Njuguna v Republic [2007] 2 EA 370, where the court held that failure to inform an accused person of his legal rights is not a mere procedural irregularity curable under Section 382 of the CPC. He submitted that he is a layman aged 70 years who was unrepresented throughout the trial, and that the trial court was under a duty to inquire whether he was capable of self-representation, given the seriousness of the charge and the severe consequences of a conviction. He relied on Republic v Karisa Chengo & 2 Others [2017] eKLR, which held that an indigent accused is entitled to state-funded legal representation, and on Albanus Mwasa Mutua v Republic CRA No. 120 of 2014, which held that an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the strength of the prosecution evidence. He further cited Patrick Oduot Ochieng v Republic CRA No. 49 of 2020 [2022] KECA 23 eKLR, where the Court of Appeal held that the operative circumstance triggering the necessity of legal representation is where substantial injustice would result from the complexity and seriousness of the charge.
19. The Appellant also submitted that the prosecution failed to disclose to him the evidence it intended to rely upon at trial, including witness statements and documentary exhibits. He relied on Thomas Patrick Cholmondeley v Republic CRA No. 116 of 2007, where the court affirmed that the prosecution bears a duty of pre-trial disclosure requiring that all statements and exhibits intended to be used by the prosecution be availed to the defence beforehand, whether or not a formal request is made. He contended that this failure violated his constitutional rights under Articles 50(2)(c) and 50(2)(j) of the Constitution, being the right to adequate time and facilities to prepare a defence and the right to be informed in advance of the evidence to be relied upon.
20. Finally, the Appellant submitted on sentence that the trial court did not direct that the sentence be computed from the date he first went into custody. He urged this Court to consider that he had been in custody for 3 years, 20 months and 3 days prior to conviction, in accordance with the mandatory provisions of Section 333(2) of the Criminal Procedure Code.
Respondent's Submissions
21. The Respondent opposed the appeal against conviction in its entirety and urged this Court to uphold the conviction. The State further sought enhancement of the sentence from 20 years to 40 years imprisonment. The Respondent submitted that the prosecution proved all the essential ingredients of the offence of incest beyond reasonable doubt, that the conviction entered by the trial court was proper and supported by the evidence, that the Appellant was correctly identified as the perpetrator, and that DNA evidence conclusively established that the complainant was the Appellant's biological daughter. The Respondent relied on four key exhibits — the Attendance Card (Exhibit 1), the P3 Form (Exhibit 2), the Age Assessment Report (Exhibit 3), and the DNA Test Results — which it argued collectively established all the ingredients of the offence.
22. On the age of the complainant, the Respondent submitted that there was overwhelming evidence establishing that she was approximately 8 years old at the time of the offence. The prosecution relied on the Age Assessment Report, the P3 Form, and the complainant's own testimony, in which she stated she was 10 years old at the time she gave evidence. The Respondent cited Richard Wahome Chege v Republic Criminal Appeal No. 61 of 2014, where the Court of Appeal held that age need not be proved exclusively through a birth certificate, and that testimony from a parent, medical evidence, and other supporting evidence may sufficiently establish age. The State also relied on Francis Omironi v Uganda Criminal Appeal No. 2 of 2000, where the court emphasised that medical evidence is important in age determination and that age may also be proved through parental testimony and common-sense observation.
23. On the question of penetration, the Respondent submitted that it was proved both through the medical evidence contained in the P3 Form and through the complainant's testimony. Relying on Section 2 of the Sexual Offences Act, the Respondent submitted that penetration means the partial or complete insertion of the genital organs of one person into those of another. The State cited Mark Oiruri Mose v Republic [2013] eKLR for the proposition that penetration need not be deep and that proof of spermatozoa is not necessary — slight penetration is sufficient. The State further relied on Erick Onyango Ondeng v Republic [2014] eKLR, which affirmed that the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence and that rupture of the hymen is not a prerequisite.
24. On the identification of the Appellant, the Respondent submitted that there was no possibility of mistaken identity because the complainant knew the Appellant well, was living with him, recognised him as her father, and had frequent interaction with him throughout her life. The State relied on Ogeto v Republic [2004] KLR 19 and submitted that this was a case of recognition rather than mere identification, and that since the complainant was identifying her own father, there was no realistic possibility of error.
25. On proof of the close blood relationship required for the offence of incest, the Respondent submitted that the complainant's own testimony identified the Appellant as her father, and that this was conclusively corroborated by the DNA evidence. The Government Analyst, PW7, testified that the DNA analysis established a 99.99% probability that the Appellant is the biological father of the complainant, which the Respondent argued conclusively proved the consanguinity element of the charge. The Respondent submitted that having regard to the complainant's testimony, the medical evidence, the age assessment evidence, the DNA evidence and the circumstantial evidence collectively, the trial court was correct in finding that the prosecution had proved the case beyond reasonable doubt, and urged this Court not to interfere with the conviction.
26. On sentence, the Respondent made substantial submissions in favour of enhancement. The State cited Section 20(1) of the Sexual Offences Act and emphasised the proviso thereto, which provides that where the female victim is under 18 years of age and the offence is proved, the offender is liable to imprisonment for life. The Respondent highlighted the following aggravating factors: the complainant was approximately 8 years old; the Appellant was her biological father; the abuse was committed against a very young child who depended entirely on the Appellant for her security, maintenance and protection; the child suffered physical, psychological and emotional harm; and the offence constituted a gross abuse of parental trust and authority. The Respondent submitted that the sentence of 20 years imprisonment did not adequately reflect the gravity of the offence.
27. In support of the prayer for sentence enhancement, the Respondent relied on Rotike v Republic (Miscellaneous Criminal Application No. E014 of 2021), where the court affirmed that in sentencing, courts retain discretion and should consider aggravating factors including the age of the child, the manner in which the offence was committed, and the physical and emotional harm caused. The Respondent also relied on Supreme Court Petition No. E018 of 2023 — Republic v Joshua Gichui Mwangi & Initiative for Strategic Litigation in Africa (ISLA) and Others — to support the proposition that substantial custodial sentences under the Sexual Offences Act remain lawful and enforceable, and that the provisions of the Sexual Offences Act on sentencing continue to apply. The Respondent ultimately prayed that this Court dismiss the appeal, uphold the conviction, and enhance the sentence from 20 years to 40 years imprisonment.
F. ANALYSIS AND DETERMINATION
Issue 1: Regularity of Plea Taking and Compliance with Article 50(2)(b)
28. The Appellant's first substantive ground is that the plea was taken irregularly, in breach of Article 50(2)(b) of the Constitution and Section 207 of the Criminal Procedure Code. The record shows that on 3rd July 2017, the Appellant took plea in Kiswahili — a language he confirmed he understood — and that the trial magistrate recorded that every element of the charge was explained to the Appellant in Kiswahili, to which he responded 'It is not true.' On the amended charge taken on 4th October 2017, the record similarly reflects a plea of not guilty.
29. The test for regularity of plea taking was comprehensively stated by the Court of Appeal in Ephantus Kamau & Another v Republic [2014] eKLR, where the court held that the charge and every element thereof must be stated or explained to an accused person in a language they understand before a plea is recorded. Where the record affirmatively demonstrates that the elements of the charge were explained in a language understood by the accused and the accused responded by denying the charge, the provisions of Article 50(2)(b) are satisfied. The record in this case states precisely that: that every element of the charge was explained to the Appellant in Kiswahili which he understood. This Court is satisfied that the plea was taken regularly. This ground fails.
30. On the question of the discrepancy between the complainant's name in the charge sheet and in her testimony, as well as the name discrepancy in the DNA report, this Court notes that these are minor variances that do not go to the root of the charge. As the Court of Appeal held in Phillip Nzaka Watu v Republic [2016] eKLR, minor discrepancies in evidence do not affect credibility or vitiate proceedings where the identity of the persons concerned is not genuinely in dispute. It has never been the Appellant's case that the complainant in the dock was a different person from the child named in the charge — his own brother DW2 confirmed that PW1 and PW2 are his children. This complaint is without substance.
Issue 2: Right to Legal Representation
31. The Appellant submits that he was not informed of his right to legal representation at the commencement of the trial, in violation of Article 50(2)(g) of the Constitution and Section 43(1)(a) and (b) of the Legal Aid Act. This is a ground that requires careful examination. The right to legal representation is a fundamental component of the right to a fair trial. The Court of Appeal in Patrick Oduot Ochieng v Republic [2022] KECA 23 eKLR affirmed that the operative circumstances triggering the necessity of state-funded legal representation are where substantial injustice would result from the complexity and seriousness of the charge. The offence of incest carries a minimum sentence of 15 years upon the facts of this case and the Appellant, an elderly man of 70 years, faced trial unrepresented.
32. However, the question of whether failure to inform an accused of the right to legal representation automatically vitiates a conviction requires a nuanced approach. The Court of Appeal in Republic v Karisa Chengo & 2 Others [2017] eKLR held that an accused who is indigent and faces a serious charge is entitled to state-funded representation. However, the same Court has also recognised in subsequent decisions that not every failure to inform an accused of the right to counsel will result in an acquittal — the court must examine whether the failure caused actual and material prejudice to the conduct of the defence. Where an accused conducted a vigorous defence, cross-examined witnesses, and called witnesses of their own, the courts have held that the omission to inform of the right to legal representation did not occasion a failure of justice: see Shadrack Kipkoech Kogo v Republic [2018] eKLR.
33. In the present case, the Appellant cross-examined prosecution witnesses, called two defence witnesses, and filed written submissions on appeal. His defence, though ultimately unsuccessful, was conducted actively. This Court does not find that the failure — if any — to inform the Appellant of his right to legal representation occasioned a failure of justice or resulted in a trial so fundamentally unfair as to require the conviction to be quashed. This ground does not succeed.
Issue 3: Pre-Trial Disclosure
34. The Appellant submits that the prosecution did not disclose witness statements and documentary evidence before trial. As the High Court stated in Thomas Patrick Cholmondeley v Republic CRA No. 116 of 2007, the prosecution bears a duty of pre-trial disclosure. However, the remedy for failure to disclose is ordinarily an adjournment to allow the defence time to consider the material, not an acquittal — unless the failure has caused such prejudice that a fair trial was rendered impossible. The Appellant has not demonstrated with specificity how the alleged failure to disclose any particular piece of evidence prevented him from preparing an adequate defence or caused material prejudice to his case. The DNA evidence, for instance, was the subject of a court order in which all parties participated. This ground fails.
Issue 4: Absence of Medical Examination of the Appellant under Section 36 of the Sexual Offences Act
35. The Appellant submits that the trial magistrate erred by convicting him in the absence of medical examination reports from both parties as required under Section 36 of the Sexual Offences Act. Section 36 of the Sexual Offences Act provides that a medical examination of the accused may be ordered to obtain evidence. It does not, however, make such an examination a mandatory prerequisite for a conviction. The Court of Appeal in Erick Onyango Ondeng v Republic [2014] eKLR affirmed that the offence of penetration can be proved through the complainant's testimony and medical evidence of the complainant alone, without a corresponding examination of the accused. PW6 confirmed on cross-examination that he only examined the complainant and not the Appellant, but this does not undermine the sufficiency of the prosecution evidence. This ground fails.
Issue 5: Whether the Elements of Incest Were Proved Beyond Reasonable Doubt
36. Age of the Complainant. The prosecution relied on the Age Assessment Report, the P3 Form and the complainant's own testimony to establish her age. PW6 conducted a clinical age assessment using the dental formula and determined the complainant to be approximately 8 years old. The P3 Form recorded her age as 8 years. The complainant herself testified that she was 10 years old at the time she gave evidence. As the Court of Appeal held in Richard Wahome Chege v Republic Criminal Appeal No. 61 of 2014, age need not be proved exclusively by a birth certificate and medical evidence combined with other supporting evidence is sufficient. This Court is satisfied that the complainant was a child of approximately 8 to 10 years at the date of the offence, well within the threshold of Section 20(3) of the Sexual Offences Act.
37. Penetration. PW1 testified in clear, cogent and age-appropriate language that the Appellant inserted his penis into her vagina and that she felt pain. The medical evidence of PW6 confirmed a broken hymen, bruising of the labia majora and labia minora, swelling of the vulva, and a smelly yellowish discharge — all consistent with penile penetration. PW6 concluded that the complainant had been penetrated by a penis. As affirmed in Mark Oiruri Mose v Republic [2013] eKLR, penetration need not be complete and no proof of spermatozoa is required. Penetration was proved beyond reasonable doubt.
38. Identification. The complainant identified the Appellant as her father throughout her testimony, confirmed on cross-examination. PW3 confirmed that the Appellant is the father of the complainant and they have lived together since 1999. PW2 similarly confirmed the Appellant as her father. As the Court of Appeal stated in Wamunga v Republic [1989] KLR 424, where identification is by recognition of a person well known to the witness, the dangers attending stranger identification do not apply with the same force. This was identification by recognition in the most reliable circumstances — a biological daughter identifying her father. There was no possibility of error.
39. Proof of the Blood Relationship. The consanguinity element — that the Appellant knew the complainant was his daughter — was proved by four independent sources: the complainant's own testimony; PW3's evidence; the Appellant's own admission at the time of plea that the complainant was his daughter; and, most conclusively, the DNA evidence of PW7, wh
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