REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E023 OF 2025
ERIC MULEI KITUU.................................................................APPELLANT
-VERSUS-
REPUBLIC..........................................................................RESPONDENT
(Being an appeal from the conviction and sentence in S. O. No. E036 of2022 at Machakos Law Court delivered on 12/5/2025)
JUDGEMENT
Introduction
1. The Appellant ERICK MULEI KITUU was charged with the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on diverse dates between August 2019 and September 2020 at Mwanyani village, Katanga Sub-location, Kola Location in Kalama Sub-county within Machakos County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of A.M.M a child aged 9 years old knowing she was his niece.
2. The Appellant was also charged with the alternative charge of committing indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006. The particulars are that on diverse dates between August 2019 and September 2020 at Mwanyani village, Katanga sublocation, Kola Location in Kalama Sub-county within Machakos County, the Appellant intentionally and unlawfully touched the vagina of A.M.M a child aged 9 years old.
The Appellant pleaded not guilty to both the main charge and the alternative charge and the matter was set down for hearing.
5. During trial the prosecution called five (5) witnesses who testified in support of its case. The Appellant was placed on his defence. He gave sworn evidence and called (1) witness to support his case. The trial magistrate did consider all the evidence adduced and found the Appellant guilty of the offence of incest and convicted him under Section 215 of the criminal procedure code to serve a life imprisonment.
Petition of Appeal
6. The Appellant being dissatisfied by the conviction and sentence filed this appeal vide a Petition of Appeal dated 24th February 2025 raising twelve (12) grounds of appeal as follows that:
1. The learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant when there was no evidence to support the charge.
2. The learned trial magistrate erred in law and fact by convicting and sentencing the Appellant on inconsistent, doubtful and contradictory evidence.
3. The learned trial magistrate erred in law and fact by convicting and sentencing the Appellant by relying on the evidence presented by the prosecution and disregarding the Defence tendered by the Appellant.
4. The trial learned magistrate erred in law and fact by holding that the prosecution had proved its case against the Appellants beyond reasonable doubt.
5. The trial court erred in law and fact by convicting and sentencing the Appellant on defective charges which were not supported by the particulars of offence.
6. The learned trial magistrate erred in law and fact in failing to fully consider the mitigation, the pre-sentencing report and thus meting excessively harsh sentence on the appellant.
7. The trial court erred in law and fact by disregarding the submissions Appellant thus convicting and sentencing the Appellant wrongly.
8. The learned trial judge erred in law and fact by relying on evidence of a single identifying witness who was contradictory and untruthful.
9. The trial court erred in law and fact by disregarding the findings of the probation officer in the pre-sentencing report.
10. The learned trial judge fell into error by considering extraneous factors and allegations which did not meet the standard of proof set in criminal matters.
11. The learned court erred in law by considering the prosecution.
12. The Trial Court erred in law and fact by convicting and sentencing the Appellant to serve an excessive sentence of life imprisonment in the circumstances.
7. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 17th March 2026 filed by Mr. Mutava Advocate of the law firm of B.M. Mungáta & Co. Advocates while the Respondent’s submissions dated 25th February 2026 (erroneously typed 2025) filed by Ms. Agatha Abang, prosecution counsel.
Appellant’s submissions.
8. The Appellant submitted on two issues; i) whether the prosecution case was proved beyond reasonable doubt and ii) whether the Appellant's alibi defence was properly considered.
9. With respect to the first issue, the Appellant submitted that the prosecution was required to establish three elements to support the charge of defilement: age of the complainant; proof of penetration; and a positive identification of the assailant. The age of the complainant was not contested by the Appellant. The complainant's birth certificate produced in evidence established that she was four and a half years of age at the time the assault occurred:
10. The Appellant argued that penetration was not established by the prosecution. He faulted the learned trial magistrate for relying on the uncorroborated evidence of the complainant to convict him. That the act of penetration, as was held by this Court in Kassim Ali v. Republic [2006] eKLR can be proved by the oral evidence of a victim of rape or defilement, or by circumstantial evidence. In this case, the evidence of penetration was adduced by the complainant's unsworn evidence, and was corroborated by the medical evidence.
11. However, it was not conclusive whether the Appellant was the one who caused the penetration as the P3 form produced showed hymen torn but old. The prosecution has not proved penetration beyond reasonable doubt. They have curved this entire case on the basis of a single identifying and uncorroborated evidence. The complainant was the only witness to testify against the Appellant having witnessed the occurrence.
12. On the second issue it is submitted that the Appellant raised a Defence of alibi which remained uncontroverted but the trial court chose to ignore all that evidence in favour of the complainant’s evidence yet it is trite law that suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
13. The Appellant proposes that this appeal be allowed, the conviction quashed and sentence set aside.
Respondent’s submissions.
14. On the other hand, the Respondent opposes the instant appeal and submits that the trial court properly evaluated the evidence and came to the right conclusion. The Respondent submits that looking at the circumstances of this case, the Appellant took advantage of his already vulnerable niece. The Appellant owed a duty of care to the victim as her uncle to protect her and provide for her but instead the Appellant became her tormentor and she was still traumatised. The victim PW1 has to live with the very sad fact and reality that the Appellant, her uncle defiled her.
15. The Respondent submits that the Appellant in his defence denied the incident and stated that there was a grudge over a shamba issue. That the testimony of the Appellant’s witness (DW2) added no value to the Appellant’s defence case. The Appellant’s defence was an afterthought and further, the Appellant did not raise either the issue of the grudge over the shamba, the withdrawal of the case or the alibi defence during the hearing of the Prosecution’s case and on cross examination of the prosecution witnesses.
16. The Respondent’s position is that the sentence was legal and proper as prescribed by law and humbly urge this Court to uphold the conviction and sentence of the Appellant as imposed by trial court. The Respondent submits that the appeal lacks merit and ought to be dismissed in its entirety.
Analysis and Determination
17. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno -vs- Republic (1972) EA 32 where it was stated as follows: -
“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.
18. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
19. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-
“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”
20. In the case of Mwangi vs Republic [2004] eKLR 28. It was held as follows:
“Any appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate courts own decision on the evidence”
21. In this case, the Appellant was charged and sentenced under Section 20 (1) of the Sexual Offences Act which provide as follows:
(1) “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
21. The ingredients for the offence of incest can be summarized as follows;
a. Proof of the age of the victim
b. Proof that the offender is a relative of the victim,
c. Proof of penetration or indecent act
d. proper identification of the perpetrator.
22. Having subjected the evidence adduced before the trial court to fresh and exhaustive examination, considered the trial court’s judgement, the grounds of appeal and the submissions of the parties, what I have to determine is whether the prosecution proved the above ingredients to the required standards;
a. Proof of the age of the victim
23. PW1, the victim’s Birth Certificate PExt.1 shows she was born on 14/9/2010. PW2, the mother to the victim confirms date of birth in Birth Certificate. The incident is alleged to have happened for the first time in August 2019, the complainant was 9 years then and of very tender age. The age of the complainant is not contested by the Appellant. I find that the prosecution proved this ingredient of age beyond reasonable doubt.
b. Proof that the offender is a relative of the victim,
24. The victim, PW1 confirmed that the Appellant is her uncle which means the victim was the niece to the Appellant. This evidence was corroborated by PW2 and PW3. The Appellant stated that PW1 was a child to his niece. DW2 stated that PW2 is their cousin, the Appellant was alleged to have defiled PW2’s child. Relationship of uncle-niece between the Appellant and the victim herein is not disputed. Section 20 (1) of the Sexual Offences Act provides that any person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece aunt or grandmother is guilty of an offence termed incest.PW1 is a niece to the Appellant which falls under the ambit of Section 20(1) of the Sexual Offences Act. There was sufficient proof that the Appellant was related to the complainant. I equally find that the prosecution proved this ingredient to the required standard.
c. Proof of penetration or indecent act
25. PW1 testified that she was living with her maternal grandmother when the Appellant one day found her washing utensils and he stealthily came over, closed her mouth, carried her on his shoulder and took her to his house. She stated that the Appellant put her down, removed her panties and removed his pants, he then pulled out his thing and did bad manners to PW1. The Appellant put his thing for urinating in PW1’s thing for urinating. In his house he put PW1 on his bed. He did bad manners to her until he finished then he told PW1 that if she told anybody he would beat her to death (proceedings at page 21 and 22).
26. PW4 the clinical audiologist testified on behalf of Dr. Mutunga who had passed on in 2024 the prosecution having laid the basis for PW4 to testify. PW4 while referring to the P3 Form PExt.3 stated that upon examination it was 2-3 years after the incident. Degree harm. PW1 was 11 years old. Hymen broken - old, no discharge, no infection, urine pus cells. It means there could have been infection. In the PRC Form PExt.2 there were detached tests, level of pus cells 10-15 meaning there was sickness, STI or dirt. HIV test negative. Medication prescribed for treating the infection. Child alleged defilement by uncle from 2019 to date. There were threats by the perpetrator. In cross examination PW4 stated that the hymen was perforated but it was not old.
27. PW3 who is the mother to PW1 and M, left her marriage in 2016 and returned home. In 2019 or thereabouts she left for Wote town and left the children behind with their grandmother Alice. The children's uncle Erick (Appellant) also lived with them. In August 2019, the first defilement occurred. While M and K went to play. PW1 went to wash utensils. Appellant would carry her on his shoulders and take her to his room, removed her pant, lay her on the bed and defile her. He threatened her that if he were to say, he would kill her and kill her mother. Her grandmother was away in woman's meeting and when she returned, PW1 reported to her. The grandmother told her she would stab her with a knife. That response from the grandmother, according to PW1made her keep quiet which caused the defilement to go on for a period of time. At this time, the only other adult in the home did not believe PW1 and that enabled the Appellant to perpetrate without fear. At the end of 2019 or beginning of 2020 PW3 returned home. The children told her what had been happening and she took them to the nearest dispensary to be checked and the doctor confirmed the damage done to them. She went home and sked but instead she was chased away with her children. She left and went to live with a woman in Machakos town. She had no money for fare to go to report to the police station. Erick (Appellant) perhaps fearing that the truth shall be discovered fled home. When he did, the grandmother went to Machakos to collect PW1 and M saying Erick (Appellant) had left. The Appellant apparently went to live with the sister DW2. He later returned and it is not clear when but the evidence points to the fact that the defilement was more rampant during the school holidays but also happened during the school days. In fact, according to the mother, PW1 told her that the Appellant could defile her even up to 3 times a day. He would put all three of them on her bed and defile each of the three children in turns. PW1 was 9years and the oldest among them. In July 2022 or thereabouts, PW3 was also living at home with the children but went to visit the sister. The grandmother had seemingly died in June of that year. The Appellant took the opportunity and defiled the children. They told their mother who confirmed at the nearest dispensary but again had no money for fare to go and report to police station. The next day PW1 went to school and arrived late at 9am, limping and looking dull. PW2 got curious and insisted on knowing what was the matter. PW1 revealed and even explained that her younger sister had also been defiled. PW2 reported to the headteacher who called the assistant chief and PW1's mother who came with PW1's younger sister. The children confirmed having been defiled and the case was eventually reported courtesy of the headteacher and PW2 who got involved and ensured the mother had fare to move around.
28. Upon re-evaluating and re-analysing the evidence of penetration, it is my finding that the prosecution sufficiently proved that the complainant was indeed defiled by the Appellant. I therefore find that the prosecution proved the ingredient of penetration beyond reasonable doubt.
d. proper identification of the perpetrator.
29. Identification was by recognition which is the best form of identification. From the evidence that was adduced during trial it is clear that the Appellant is the uncle of the victim and thus the victim knew him well and could recognize him. She even called him by name "Eric Mulei Kituu" and referred to him as her uncle (page 21 of the proceedings). PW2, PW3, PW4 and PW5 confirmed that the victim, PWI told them the Appellant who is her uncle defiled her. The Court of Appeal in the case of Peter Musau Mwanzia Vs The Republic (2008) eKLR expressed itself as follows:-
“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing that the suspect at the time of the offence can recall very well having seen him earlier on before the incident”
30. Guided by the above decision, I observe that PW1 stated that she knew the Appellant who was her uncle and thus a relative who had defiled her not once, not twice but severally. There is therefore no doubt that identification was by way of recognition. Again, the prosecution proved this ingredient beyond reasonable doubt.
Sentence
31. Section 20 (1) of the Sexual Offences Act under which the Appellant was charged states that “….Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life”. Having considered the sentence meted out and circumstances of this case and also having considered that the said Section 20(1) of the Sexual offences Act No. 3 of 2006 fettered the courts discretion in sentencing, I do find that the sentence was within the law. In Republic vs Scott (2005) NSWCCA 152 Howie J Grove & Barn J J it was stated;
“There is a fundamental and immutable principle of sentencing, that is, sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed… one of the purposes of punishment is to ensure that an offender is adequately punished… a further purpose is to denounce the conduct of the offender.
32. Further in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023, the Supreme Court of Kenya held that the minimum sentences in the Sexual Offences Act were constitutional and the courts are bound by the minimum mandatory sentences as provided for by law. Looking at the circumstances of this case, the sentence was legal and proper as prescribed by law.
33. The upshot is that, I hereby find that the prosecution proved the offence of incest against the Appellant beyond reasonable doubt hence the appeal lacks merit and is thus dismissed.
34. Right of Appeal 14 days.
35. It is so ordered. The file is closed.
JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 20TH FEBRUARY 2025.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 16TH JUNE 2026
In the presence of:
Ms. Mule hb for Mr. Mutava............... for Applicant
Ms. Agatha......... for Respondent
Millygrace..................... Court Assistant
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E023 OF 2025
ERIC MULEI KITUU.................................................................APPELLANT
-VERSUS-
REPUBLIC..........................................................................RESPONDENT
(Being an appeal from the conviction and sentence in S. O. No. E036 of2022 at Machakos Law Court delivered on 12/5/2025)
JUDGEMENT
Introduction
1. The Appellant ERICK MULEI KITUU was charged with the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on diverse dates between August 2019 and September 2020 at Mwanyani village, Katanga Sub-location, Kola Location in Kalama Sub-county within Machakos County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of A.M.M a child aged 9 years old knowing she was his niece.
2. The Appellant was also charged with the alternative charge of committing indecent act with a child contrary to Section 11(1) of the sexual offences act No. 3 of 2006. The particulars are that on diverse dates between August 2019 and September 2020 at Mwanyani village, Katanga sublocation, Kola Location in Kalama Sub-county within Machakos County, the Appellant intentionally and unlawfully touched the vagina of A.M.M a child aged 9 years old.
The Appellant pleaded not guilty to both the main charge and the alternative charge and the matter was set down for hearing.
5. During trial the prosecution called five (5) witnesses who testified in support of its case. The Appellant was placed on his defence. He gave sworn evidence and called (1) witness to support his case. The trial magistrate did consider all the evidence adduced and found the Appellant guilty of the offence of incest and convicted him under Section 215 of the criminal procedure code to serve a life imprisonment.
Petition of Appeal
6. The Appellant being dissatisfied by the conviction and sentence filed this appeal vide a Petition of Appeal dated 24th February 2025 raising twelve (12) grounds of appeal as follows that:
1. The learned trial Magistrate erred in law and fact by convicting and sentencing the Appellant when there was no evidence to support the charge.
2. The learned trial magistrate erred in law and fact by convicting and sentencing the Appellant on inconsistent, doubtful and contradictory evidence.
3. The learned trial magistrate erred in law and fact by convicting and sentencing the Appellant by relying on the evidence presented by the prosecution and disregarding the Defence tendered by the Appellant.
4. The trial learned magistrate erred in law and fact by holding that the prosecution had proved its case against the Appellants beyond reasonable doubt.
5. The trial court erred in law and fact by convicting and sentencing the Appellant on defective charges which were not supported by the particulars of offence.
6. The learned trial magistrate erred in law and fact in failing to fully consider the mitigation, the pre-sentencing report and thus meting excessively harsh sentence on the appellant.
7. The trial court erred in law and fact by disregarding the submissions Appellant thus convicting and sentencing the Appellant wrongly.
8. The learned trial judge erred in law and fact by relying on evidence of a single identifying witness who was contradictory and untruthful.
9. The trial court erred in law and fact by disregarding the findings of the probation officer in the pre-sentencing report.
10. The learned trial judge fell into error by considering extraneous factors and allegations which did not meet the standard of proof set in criminal matters.
11. The learned court erred in law by considering the prosecution.
12. The Trial Court erred in law and fact by convicting and sentencing the Appellant to serve an excessive sentence of life imprisonment in the circumstances.
7. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 17th March 2026 filed by Mr. Mutava Advocate of the law firm of B.M. Mungáta & Co. Advocates while the Respondent’s submissions dated 25th February 2026 (erroneously typed 2025) filed by Ms. Agatha Abang, prosecution counsel.
Appellant’s submissions.
8. The Appellant submitted on two issues; i) whether the prosecution case was proved beyond reasonable doubt and ii) whether the Appellant's alibi defence was properly considered.
9. With respect to the first issue, the Appellant submitted that the prosecution was required to establish three elements to support the charge of defilement: age of the complainant; proof of penetration; and a positive identification of the assailant. The age of the complainant was not contested by the Appellant. The complainant's birth certificate produced in evidence established that she was four and a half years of age at the time the assault occurred:
10. The Appellant argued that penetration was not established by the prosecution. He faulted the learned trial magistrate for relying on the uncorroborated evidence of the complainant to convict him. That the act of penetration, as was held by this Court in Kassim Ali v. Republic [2006] eKLR can be proved by the oral evidence of a victim of rape or defilement, or by circumstantial evidence. In this case, the evidence of penetration was adduced by the complainant's unsworn evidence, and was corroborated by the medical evidence.
11. However, it was not conclusive whether the Appellant was the one who caused the penetration as the P3 form produced showed hymen torn but old. The prosecution has not proved penetration beyond reasonable doubt. They have curved this entire case on the basis of a single identifying and uncorroborated evidence. The complainant was the only witness to testify against the Appellant having witnessed the occurrence.
12. On the second issue it is submitted that the Appellant raised a Defence of alibi which remained uncontroverted but the trial court chose to ignore all that evidence in favour of the complainant’s evidence yet it is trite law that suspicion, however strong, cannot provide the basis of inferring guilt which must be proved by evidence beyond reasonable doubt.
13. The Appellant proposes that this appeal be allowed, the conviction quashed and sentence set aside.
Respondent’s submissions.
14. On the other hand, the Respondent opposes the instant appeal and submits that the trial court properly evaluated the evidence and came to the right conclusion. The Respondent submits that looking at the circumstances of this case, the Appellant took advantage of his already vulnerable niece. The Appellant owed a duty of care to the victim as her uncle to protect her and provide for her but instead the Appellant became her tormentor and she was still traumatised. The victim PW1 has to live with the very sad fact and reality that the Appellant, her uncle defiled her.
15. The Respondent submits that the Appellant in his defence denied the incident and stated that there was a grudge over a shamba issue. That the testimony of the Appellant’s witness (DW2) added no value to the Appellant’s defence case. The Appellant’s defence was an afterthought and further, the Appellant did not raise either the issue of the grudge over the shamba, the withdrawal of the case or the alibi defence during the hearing of the Prosecution’s case and on cross examination of the prosecution witnesses.
16. The Respondent’s position is that the sentence was legal and proper as prescribed by law and humbly urge this Court to uphold the conviction and sentence of the Appellant as imposed by trial court. The Respondent submits that the appeal lacks merit and ought to be dismissed in its entirety.
Analysis and Determination
17. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno -vs- Republic (1972) EA 32 where it was stated as follows: -
“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.
18. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
19. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-
“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”
20. In the case of Mwangi vs Republic [2004] eKLR 28. It was held as follows:
“Any appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to have the appellate courts own decision on the evidence”
21. In this case, the Appellant was charged and sentenced under Section 20 (1) of the Sexual Offences Act which provide as follows:
(1) “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
21. The ingredients for the offence of incest can be summarized as follows;
a. Proof of the age of the victim
b. Proof that the offender is a relative of the victim,
c. Proof of penetration or indecent act
d. proper identification of the perpetrator.
22. Having subjected the evidence adduced before the trial court to fresh and exhaustive examination, considered the trial court’s judgement, the grounds of appeal and the submissions of the parties, what I have to determine is whether the prosecution proved the above ingredients to the required standards;
a. Proof of the age of the victim
23. PW1, the victim’s Birth Certificate PExt.1 shows she was born on 14/9/2010. PW2, the mother to the victim confirms date of birth in Birth Certificate. The incident is alleged to have happened for the first time in August 2019, the complainant was 9 years then and of very tender age. The age of the complainant is not contested by the Appellant. I find that the prosecution proved this ingredient of age beyond reasonable doubt.
b. Proof that the offender is a relative of the victim,
24. The victim, PW1 confirmed that the Appellant is her uncle which means the victim was the niece to the Appellant. This evidence was corroborated by PW2 and PW3. The Appellant stated that PW1 was a child to his niece. DW2 stated that PW2 is their cousin, the Appellant was alleged to have defiled PW2’s child. Relationship of uncle-niece between the Appellant and the victim herein is not disputed. Section 20 (1) of the Sexual Offences Act provides that any person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece aunt or grandmother is guilty of an offence termed incest.PW1 is a niece to the Appellant which falls under the ambit of Section 20(1) of the Sexual Offences Act. There was sufficient proof that the Appellant was related to the complainant. I equally find that the prosecution proved this ingredient to the required standard.
c. Proof of penetration or indecent act
25. PW1 testified that she was living with her maternal grandmother when the Appellant one day found her washing utensils and he stealthily came over, closed her mouth, carried her on his shoulder and took her to his house. She stated that the Appellant put her down, removed her panties and removed his pants, he then pulled out his thing and did bad manners to PW1. The Appellant put his thing for urinating in PW1’s thing for urinating. In his house he put PW1 on his bed. He did bad manners to her until he finished then he told PW1 that if she told anybody he would beat her to death (proceedings at page 21 and 22).
26. PW4 the clinical audiologist testified on behalf of Dr. Mutunga who had passed on in 2024 the prosecution having laid the basis for PW4 to testify. PW4 while referring to the P3 Form PExt.3 stated that upon examination it was 2-3 years after the incident. Degree harm. PW1 was 11 years old. Hymen broken - old, no discharge, no infection, urine pus cells. It means there could have been infection. In the PRC Form PExt.2 there were detached tests, level of pus cells 10-15 meaning there was sickness, STI or dirt. HIV test negative. Medication prescribed for treating the infection. Child alleged defilement by uncle from 2019 to date. There were threats by the perpetrator. In cross examination PW4 stated that the hymen was perforated but it was not old.
27. PW3 who is the mother to PW1 and M, left her marriage in 2016 and returned home. In 2019 or thereabouts she left for Wote town and left the children behind with their grandmother Alice. The children's uncle Erick (Appellant) also lived with them. In August 2019, the first defilement occurred. While M and K went to play. PW1 went to wash utensils. Appellant would carry her on his shoulders and take her to his room, removed her pant, lay her on the bed and defile her. He threatened her that if he were to say, he would kill her and kill her mother. Her grandmother was away in woman's meeting and when she returned, PW1 reported to her. The grandmother told her she would stab her with a knife. That response from the grandmother, according to PW1made her keep quiet which caused the defilement to go on for a period of time. At this time, the only other adult in the home did not believe PW1 and that enabled the Appellant to perpetrate without fear. At the end of 2019 or beginning of 2020 PW3 returned home. The children told her what had been happening and she took them to the nearest dispensary to be checked and the doctor confirmed the damage done to them. She went home and sked but instead she was chased away with her children. She left and went to live with a woman in Machakos town. She had no money for fare to go to report to the police station. Erick (Appellant) perhaps fearing that the truth shall be discovered fled home. When he did, the grandmother went to Machakos to collect PW1 and M saying Erick (Appellant) had left. The Appellant apparently went to live with the sister DW2. He later returned and it is not clear when but the evidence points to the fact that the defilement was more rampant during the school holidays but also happened during the school days. In fact, according to the mother, PW1 told her that the Appellant could defile her even up to 3 times a day. He would put all three of them on her bed and defile each of the three children in turns. PW1 was 9years and the oldest among them. In July 2022 or thereabouts, PW3 was also living at home with the children but went to visit the sister. The grandmother had seemingly died in June of that year. The Appellant took the opportunity and defiled the children. They told their mother who confirmed at the nearest dispensary but again had no money for fare to go and report to police station. The next day PW1 went to school and arrived late at 9am, limping and looking dull. PW2 got curious and insisted on knowing what was the matter. PW1 revealed and even explained that her younger sister had also been defiled. PW2 reported to the headteacher who called the assistant chief and PW1's mother who came with PW1's younger sister. The children confirmed having been defiled and the case was eventually reported courtesy of the headteacher and PW2 who got involved and ensured the mother had fare to move around.
28. Upon re-evaluating and re-analysing the evidence of penetration, it is my finding that the prosecution sufficiently proved that the complainant was indeed defiled by the Appellant. I therefore find that the prosecution proved the ingredient of penetration beyond reasonable doubt.
d. proper identification of the perpetrator.
29. Identification was by recognition which is the best form of identification. From the evidence that was adduced during trial it is clear that the Appellant is the uncle of the victim and thus the victim knew him well and could recognize him. She even called him by name "Eric Mulei Kituu" and referred to him as her uncle (page 21 of the proceedings). PW2, PW3, PW4 and PW5 confirmed that the victim, PWI told them the Appellant who is her uncle defiled her. The Court of Appeal in the case of Peter Musau Mwanzia Vs The Republic (2008) eKLR expressed itself as follows:-
“We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing that the suspect at the time of the offence can recall very well having seen him earlier on before the incident”
30. Guided by the above decision, I observe that PW1 stated that she knew the Appellant who was her uncle and thus a relative who had defiled her not once, not twice but severally. There is therefore no doubt that identification was by way of recognition. Again, the prosecution proved this ingredient beyond reasonable doubt.
Sentence
31. Section 20 (1) of the Sexual Offences Act under which the Appellant was charged states that “….Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life”. Having considered the sentence meted out and circumstances of this case and also having considered that the said Section 20(1) of the Sexual offences Act No. 3 of 2006 fettered the courts discretion in sentencing, I do find that the sentence was within the law. In Republic vs Scott (2005) NSWCCA 152 Howie J Grove & Barn J J it was stated;
“There is a fundamental and immutable principle of sentencing, that is, sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed… one of the purposes of punishment is to ensure that an offender is adequately punished… a further purpose is to denounce the conduct of the offender.
32. Further in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023, the Supreme Court of Kenya held that the minimum sentences in the Sexual Offences Act were constitutional and the courts are bound by the minimum mandatory sentences as provided for by law. Looking at the circumstances of this case, the sentence was legal and proper as prescribed by law.
33. The upshot is that, I hereby find that the prosecution proved the offence of incest against the Appellant beyond reasonable doubt hence the appeal lacks merit and is thus dismissed.
34. Right of Appeal 14 days.
35. It is so ordered. The file is closed.
JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 20TH FEBRUARY 2025.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 16TH JUNE 2026
In the presence of:
Ms. Mule hb for Mr. Mutava............... for Applicant
Ms. Agatha......... for Respondent
Millygrace..................... Court Assistant