1. The Appeal herein arises from the conviction of the Appellant of the offence of incest contrary to Section 20(1) of the Sexual Offences Act (SOA) in Malindi Sexual Offences Case No. E056 of 2023. The Appellant was sentenced to 20 years imprisonment. The particulars of the offence are that on 6.3.23 at Eden Rock in Malindi sub-county within Kilifi County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of A. S. N., (the Complainant), a child of 12 years, who was to his knowledge, his sister.
2. Aggrieved by both the conviction and sentence, the Appellant preferred the Appeal herein. The summarized amended grounds of appeal are that the trial Magistrate erred in fact and in law by:
i) shifting the burden to the Appellant.
ii) failing to appreciate the inconsistencies and contradictions in the prosecution evidence.
iii) failing to consider that the matter was poorly shoddily and inadequately investigated.
iv) failing to consider that there was great fabrication and failure to appreciate and consider a DNA test.
The Appellant urged the Court to allow the Appeal and quash the conviction and set aside the sentence.
3. I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that I neither saw nor see the witnesses. In this regard I am guided by the holding in the case of Okeno v. Republic [1972] EA 32 where the Court of Appeal stated:
An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Vs. Republic (1957) E.A. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, See Peters V. Sunday Post, (1958) E.A. 434).
4. Section 20(1) of the SOA under which the Appellant was charged provides:
Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
5. In order to establish the offence of incest, the prosecution must prove first, that the assailant is a relative of the victim; second, that there was penetration or indecent act; third, that there is positive identification of the perpetrator and finally, proof of age of the victim. Proof of age is critical because the offence of incest where the victim is under the age of 18 years carries a sentence of life imprisonment.
6. It is not disputed that the Complainant and the Appellant are related. The Complainant referred to the Appellant as “my brother”. In his testimony, PW2 Ndolo Karisa Ngalo stated that the both the Complainant and the Appellant are his children. This was not challenged by the Appellant in cross examination of witnesses or in his defence.
7. As regards her age, the Complainant’s birth certificate was produced indicating that she was born on 8.8.10. She was thus 12 years old in June 2023 when the offence is alleged to have taken place.
8. On penetration, the Complainant testified that on the material day at around 6pm, while their parents were away, the Appellant sent her to the shop to buy him a cigarette. When she brought it, he pulled her into his room removed his clothes and hers and inserted his penis into her vagina. He threatened her with a severe beating if she told anyone. He did this many times. She became pregnant and when her mother asked her who was responsible she said it was her brother. A pregnancy test at a chemist confirmed the pregnancy. The Appellant bought her 5 abortion inducing drugs tablets and told her to take 1 which she did. The others were to be taken later. Her uncle however told her not to take the tablets. She was later taken to Malindi Subcounty Hospital
9. PW4 Dr. Ibrahim Abdullahi of Malindi Sub-county Hospital stated that an ultra sound indicated that the complainant was 13 weeks and 6 days pregnant and the conclusion was that there was vaginal penetration. He stated that the tablets were misoprostal and are used to induce abortion. He produced the P3 form, ultra sound and lab results and treatment notes.
10. From the testimony of the Complainant and of PW4, it is clear that penetration was established.
11. On identification, the Complainant stated that it was her brother, the Appellant who defiled her. She clearly narrated how in her parents’ absence, the Appellant would on returning home from work defile her. He would then threaten her with severe beating if she ever told anyone what he was doing to her.
12. I have considered the Appellant’s defence. His claim that the case was fixed on him because he his father PW2 was unhappy about his plans to move to Gongoni with his family and would not continue to take care of him is in my view farfetched. If indeed PW2 was concerned about losing the Appellant’s assistance, then having his charged with such a serious offence is an unlikely way of securing that assistance. In any event, no proof was placed befor the court to support these claims.
13. The evidence of the Appellant’s wife DW2 Jackline Masha was not helpful to his case. All she stated was that she did not believe the charged. Similarly, DW3 Sulubu Mweni, the Appellant’s father in law stated that the Appellant had been framed. On cross examination however, he stated that he was not present when the incident happened. Further, that he is not with the Appellant all the time and would not know if he did anything wrong. I accordingly find that the Appellant’s defence did not dislodge the prosecution’s evidence. The claim of fabrication of the charges is unsupported.
14. The only evidence of the alleged offence is that of the Complainant. The proviso to Section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. (emphasis)
15. For a court to convict an accused person of a sexual offence only on the basis of the evidence of the victim, such court must be satisfied that the victim is telling the truth. I have carefully considered the evidence of the Complainant. She clearly stated how the Appellant defiled her on a number of occasions during the absence of their parents who were away working. She also clearly stated that she became pregnant and that the Appellant gave her tablets to abort the pregnancy. Her evidence was consistent and without any contradictions and the same is believable.
16. In the end, having reexamined the evidence on record, I find that all the ingredients for the offence of incest were established. The prosecution proved its case beyond reasonable doubt. I see no contradictions and inconsistencies in the prosecution evidence. There is also nothing on record to support the Appellant’s claim that the burden of proof was shifted to him. The Appellant was properly convicted and I find no reason to interfere with the decision of the trial court. Accordingly, both conviction and sentence are upheld and the Appeal which lacks merit is hereby dismissed.
DATED SIGNED and DELIVERED in MALINDI this 23rd day of May 2025
2. Aggrieved by both the conviction and sentence, the Appellant preferred the Appeal herein. The summarized amended grounds of appeal are that the trial Magistrate erred in fact and in law by:
i) shifting the burden to the Appellant.
ii) failing to appreciate the inconsistencies and contradictions in the prosecution evidence.
iii) failing to consider that the matter was poorly shoddily and inadequately investigated.
iv) failing to consider that there was great fabrication and failure to appreciate and consider a DNA test.
The Appellant urged the Court to allow the Appeal and quash the conviction and set aside the sentence.
3. I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that I neither saw nor see the witnesses. In this regard I am guided by the holding in the case of Okeno v. Republic [1972] EA 32 where the Court of Appeal stated:
An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Vs. Republic (1957) E.A. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. (1957) E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, See Peters V. Sunday Post, (1958) E.A. 434).
4. Section 20(1) of the SOA under which the Appellant was charged provides:
Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
5. In order to establish the offence of incest, the prosecution must prove first, that the assailant is a relative of the victim; second, that there was penetration or indecent act; third, that there is positive identification of the perpetrator and finally, proof of age of the victim. Proof of age is critical because the offence of incest where the victim is under the age of 18 years carries a sentence of life imprisonment.
6. It is not disputed that the Complainant and the Appellant are related. The Complainant referred to the Appellant as “my brother”. In his testimony, PW2 Ndolo Karisa Ngalo stated that the both the Complainant and the Appellant are his children. This was not challenged by the Appellant in cross examination of witnesses or in his defence.
7. As regards her age, the Complainant’s birth certificate was produced indicating that she was born on 8.8.10. She was thus 12 years old in June 2023 when the offence is alleged to have taken place.
8. On penetration, the Complainant testified that on the material day at around 6pm, while their parents were away, the Appellant sent her to the shop to buy him a cigarette. When she brought it, he pulled her into his room removed his clothes and hers and inserted his penis into her vagina. He threatened her with a severe beating if she told anyone. He did this many times. She became pregnant and when her mother asked her who was responsible she said it was her brother. A pregnancy test at a chemist confirmed the pregnancy. The Appellant bought her 5 abortion inducing drugs tablets and told her to take 1 which she did. The others were to be taken later. Her uncle however told her not to take the tablets. She was later taken to Malindi Subcounty Hospital
9. PW4 Dr. Ibrahim Abdullahi of Malindi Sub-county Hospital stated that an ultra sound indicated that the complainant was 13 weeks and 6 days pregnant and the conclusion was that there was vaginal penetration. He stated that the tablets were misoprostal and are used to induce abortion. He produced the P3 form, ultra sound and lab results and treatment notes.
10. From the testimony of the Complainant and of PW4, it is clear that penetration was established.
11. On identification, the Complainant stated that it was her brother, the Appellant who defiled her. She clearly narrated how in her parents’ absence, the Appellant would on returning home from work defile her. He would then threaten her with severe beating if she ever told anyone what he was doing to her.
12. I have considered the Appellant’s defence. His claim that the case was fixed on him because he his father PW2 was unhappy about his plans to move to Gongoni with his family and would not continue to take care of him is in my view farfetched. If indeed PW2 was concerned about losing the Appellant’s assistance, then having his charged with such a serious offence is an unlikely way of securing that assistance. In any event, no proof was placed befor the court to support these claims.
13. The evidence of the Appellant’s wife DW2 Jackline Masha was not helpful to his case. All she stated was that she did not believe the charged. Similarly, DW3 Sulubu Mweni, the Appellant’s father in law stated that the Appellant had been framed. On cross examination however, he stated that he was not present when the incident happened. Further, that he is not with the Appellant all the time and would not know if he did anything wrong. I accordingly find that the Appellant’s defence did not dislodge the prosecution’s evidence. The claim of fabrication of the charges is unsupported.
14. The only evidence of the alleged offence is that of the Complainant. The proviso to Section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. (emphasis)
15. For a court to convict an accused person of a sexual offence only on the basis of the evidence of the victim, such court must be satisfied that the victim is telling the truth. I have carefully considered the evidence of the Complainant. She clearly stated how the Appellant defiled her on a number of occasions during the absence of their parents who were away working. She also clearly stated that she became pregnant and that the Appellant gave her tablets to abort the pregnancy. Her evidence was consistent and without any contradictions and the same is believable.
16. In the end, having reexamined the evidence on record, I find that all the ingredients for the offence of incest were established. The prosecution proved its case beyond reasonable doubt. I see no contradictions and inconsistencies in the prosecution evidence. There is also nothing on record to support the Appellant’s claim that the burden of proof was shifted to him. The Appellant was properly convicted and I find no reason to interfere with the decision of the trial court. Accordingly, both conviction and sentence are upheld and the Appeal which lacks merit is hereby dismissed.
DATED SIGNED and DELIVERED in MALINDI this 23rd day of May 2025