1. The appellant, Francis Bulemi Serete, was charged before the Principal Magistrate's Court at Nakuru with the offence of incest contrary to section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on diverse dates between January 2023 and 31st July 2023 at Workers Estate in Gilgil Sub-County within Nakuru County, he intentionally and unlawfully caused his penis to penetrate the vagina of Y.M.B., a child aged 16 years, who was to his knowledge his daughter. He faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the same Act.
2. He pleaded not guilty. The prosecution called seven witnesses. The appellant gave unsworn evidence and called no witness.
3. On 25th February 2025 upon consideration of the evidence of the seven prosecution witnesses and the appellant’s unsworn evidence, the trial court convicted him on the main count and sentenced him to life imprisonment.
4. He now appeals against both conviction and sentence on grounds that:
a) The learned trial magistrate erred in law and in facts by convicting the Appellant but failed to note that the case was not proved beyond reasonable doubt by the Respondent;
b) The learned trial magistrate erred in law and fact by failing to appreciate that the prosecution case was marred with contradiction which greatly vitiated the credibility of the prosecution evidence; and
c) The learned trial magistrate erred in law and fact by convicting without considering that the Appellant’s rights under Article 50 of the Constitution were violated.
5. In his written submissions the appellant contends that penetration was not established on grounds that the DNA report does not relate to the complainant and her child because the names in it (Yvonne Mutecha Bulemi and Angel Nina) differ from those given in evidence (Yvonne Michele / Michelle and Angel Lilian) and in the P3 and post-rape care forms.
6. The appellant further contends that the gestational age was variously put at 23, 28 and 30 weeks and that a pregnancy said to have been conceived in January 2023 could not result in a birth on 19th October 2023.
7. He also argues that the complainant's age was given as 13 years by some witnesses and 16 years by herself.
8. The appellant states that the report of the incident was delayed by seven months and thatit is the complainant's stepmother who orchestrated the accusation against the Appellant.
9. The respondent, through Ms. Anyumba, Principal Prosecution Counsel, submits that both ingredients of incest were proved. It is maintained that the relationship between the victim and the appellant was established by the birth certificate, the appellant's own admission and the DNA report which was produced as prosecution’s exhibit 5 which confirmed that the child, A.N, the daughter born to PW3(victim) was the appellant’s biological daughter.
10. The second ingredient of penetration was proved by the complainant's direct evidence corroborated by the medical evidence and the resulting pregnancy.
11. The Respondent submits that the discrepancies complained of are not grave and that the sentence is lawful and mandatory.
12. This being a first appeal, this court is obliged to re-evaluate the evidence afresh and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses, a principle established in the case of Okeno v Republic [1972] EA 32 .
13. I have accordingly read the entire record and considered the rival submissions and discern the following issues for determination:
(a) Whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
(b) whether the appellant's fair trial rights were infringed;
(f) whether the sentence is lawful.
Analysis and determination
(a) Relationship
14. Section 20 (1) of the Sexual Offences Act provides that:
‘ 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 of a term not less than 10 years;
provided that if it is alleged in the information or charge and proved that the female person is under the age of 18 years, the accused person shall be liable to imprisonment to 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 . ”
15. Section 20(1) requires knowledge that the female person is the offender's daughter. PW3 testified that the appellant is her father and that she lived with him. PW7 produced her birth certificate, exhibit 1, naming the appellant as her father. PW6's analysis placed the appellant's paternity of the complainant at 99.99%. Decisively, the appellant himself stated in his defence that the complainant is his daughter by his deceased second wife.
16. Nothing in the appellant's submission that the complainant is a stepdaughter can survive his own admission at trial, and in any event he conceded residing with and assuming parental responsibility for her from the age of ten. This ingredient was proved to the hilt.
(b) Penetration
18. Penetration is defined in Section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another. PW3 gave a clear, first-hand account of the appellant entering her room at night, forcing her to undress and having forceful intercourse with her, followed by pain, bleeding and discharge, and of repeated defilement thereafter. The medical evidence of an old torn hymen and a pregnancy of some 30 weeks as at 2nd August 2023 is entirely consistent with that account.
19. The evidence goes further than most cases of this kind. The DNA analysis established that the child delivered by the complainant was fathered by the appellant. That single finding proves penetration and identifies the perpetrator at once. Identification was in any case by recognition of a father by his own daughter in the home they shared, which is recognition of the most reliable kind.
20. Even absent the scientific evidence, the proviso to section 124 of the Evidence Act permits conviction on the evidence of the victim alone where the court believes her and records its reasons. The trial court expressly found the complainant's evidence candid and believable. On my own reading of the record, that finding was plainly open to it.
21. The appellant's attempt to take his own life immediately upon learning of the disclosure was treated by the trial court as conduct inconsistent with innocence. Such conduct is admissible under section 8 of the Evidence Act as relevant to the appellant's state of mind, though it is not by itself proof of guilt. It was, correctly, treated as no more than a supporting circumstance.
22. The suggestion that the complainant was procured by a vengeful stepmother was raised for the first time in submissions, was never put to PW3 or any other witness in cross-examination, and is irreconcilable with the DNA evidence. It is rejected.
(c) Age of the complainant
23. Age is a critical ingredient where it determines the sentence. The Court of Appeal in Mwalango Chichoro Mwanjembe v Republic, Mombasa Criminal Appeal No. 24 of 2015 held that age may be proved by a birth certificate, baptismal card, the oral evidence of the child if sufficiently intelligent, the evidence of parents or guardians, or medical evidence, provided the proof relied on is credible and reliable.
24. Here the complainant testified that she was born on 5th August 2007; the birth certificate, exhibit 1, was produced by PW7 and the charge sheet put her age at 16 years. PW5, relying on the clinical notes of Dr. Itumbi, spoke of a date of birth of 5th August 2009 and described the patient as 13 years old. The discrepancy is real but immaterial. On either version the complainant was well under the age of eighteen years at the time of the offence, which is the only age threshold that section 20(1) makes operative. The documentary evidence, being the best evidence, resolves the point in any event, and the appellant did not challenge exhibit 1 when it was produced.
25. I do note that although the trial court framed the age of the victim as an issue for determination, it did not return an express finding on it. It is, however, curable lapse. This court has re-evaluated the evidence and is satisfied that the complainant was a child under eighteen years, and no failure of justice has been occasioned within the meaning of section 382 of the Criminal Procedure Code.
(d) The alleged contradictions
26. The law is settled that not every discrepancy in the prosecution case is fatal. In Erick Onyango Ondeng' v Republic [2014] eKLR and Dima Denge Dima & Others v Republic [2013] eKLR the Court of Appeal held that only contradictions going to the root of the case and pointing to deliberate untruthfulness will vitiate a conviction. Minor discrepancies are to be expected.
27. As to the names in the DNA report, PW6 analysed samples drawn on the order of the very court seized of this matter, from the appellant, the complainant and her child. Variations between "Yvonne Mutecha Bulemi", "Yvonne Mitchel Bulemi" and "Yvonne Michele", and between "Angel Nina" and "Angel Lilian", are variations in the given names of the same two persons, a commonplace occurrence where a child is known by more than one name.
28. The chain of custody and the identity of the sample donors were never challenged in cross-examination, and it is not open to the appellant to raise on appeal a factual objection he declined to put to the witness at trial.
29. As to gestational age, the variation between 23, 28 and 30 weeks is explained by the fact that only PW5 spoke from the clinical record. The lay witnesses were relating what they had been told.
30. The clinical finding of some 30 weeks as at 2nd August 2023 places conception in or about early January 2023, which is precisely the period the complainant described and which falls squarely within the dates in the charge.
31. The arithmetical objection that a child conceived in January 2023 could not be born on 19th October 2023 is misconceived. That interval is approximately nine months and two weeks, which is an ordinary term of gestation. The submission that this amounts to a ten-month pregnancy is simply an error of counting.
32. As to the complainant saying she had intercourse with the appellant "once" while other witnesses spoke of repeated defilement, the charge is laid on diverse dates and a single act of penetration is sufficient to constitute the offence. Whether there was one act or many does not affect the conviction.
33. As to delay in reporting, the complainant was a child living alone with the very person who was abusing her, the only surviving parent and her sole source of support. Delay in such circumstances is entirely comprehensible and does not of itself dent credibility. The matter came to light only when her pregnancy became visible to her teachers, which is itself consistent with her account.
34. As to the production of the P3 and post-rape care forms by PW5 rather than their maker, that course is permitted by Section 33 of the Evidence Act where the maker is unavailable and the producing witness is familiar with the handwriting and signature. No objection was taken at trial and cannot therefore be raised on appeal.
35. Finally, the variance between "Workers Estate, Gilgil" in the charge and the complainant's reference to Nakuru Pipeline, the place of the offence is not an ingredient of incest thus immaterial.
36. I therefore find that the inconsistencies relied upon are peripheral and do not touch the core of the prosecution case, which is that the appellant fathered a child on his own daughter.
35. On whether there is any violation of the Appellant’s constitutional rights, the appellant asserts a violation of Article 50 but particularises none. A complaint of this gravity cannot be advanced in the abstract. The burden lies on the party alleging it to identify the right infringed and the manner of infringement.
36. The record in any event discloses a regular trial. The appellant was arraigned on 7th August 2023 and pleaded to both counts. A voir dire examination was conducted before the child witness testified. He cross-examined the prosecution witnesses. On a prima facie case being found, section 211 of the Criminal Procedure Code was explained to him in Kiswahili, a language he understood, and he elected to give unsworn evidence and to call no witness. He was convicted by a reasoned judgment and has exercised his right of appeal. This ground fails.
37. I find that both limbs of the proviso to Section 20(1) of the Sexual Offences Act were satisfied, leading to the conviction and sentence of the Appellant.
38. An appellate court will not interfere with sentence unless the trial court acted on a wrong principle, overlooked a material factor, took into account an irrelevant one, or the sentence is manifestly excessive. None of those grounds were met in this case.
39. The constitutionality of the sentences prescribed by the Sexual Offences Act is no longer open to argument. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) , the Supreme Court set aside the Court of Appeal's declaration that the minimum sentences under the Act are unconstitutional.
40. The position was reaffirmed in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) , where the court restored a life sentence that the Court of Appeal had substituted with a term of forty years, holding that it is for Parliament and not the courts to prescribe or equate sentences.
41. The aggravating features of this case are grave. The appellant was the complainant's only surviving parent and sole protector. He exploited her grief for her mother, coercing her by the threat of his own death. The abuse was repeated, and it left a child of thirteen or sixteen years to bear and raise her own father's daughter.
42. In the end, I find the appeal as against the conviction and sentence to be bereft of merit. It is dismissed in its entirety.
Dated, signed and delivered at Nakuru this 21st day of September 2026.
J. K SERGON
JUDGE
In the Presence of :
C/A Jamleck/Rutoh
Appellant: Present in person
Mr. Baya for Prosecution
2 | Page
2. He pleaded not guilty. The prosecution called seven witnesses. The appellant gave unsworn evidence and called no witness.
3. On 25th February 2025 upon consideration of the evidence of the seven prosecution witnesses and the appellant’s unsworn evidence, the trial court convicted him on the main count and sentenced him to life imprisonment.
4. He now appeals against both conviction and sentence on grounds that:
a) The learned trial magistrate erred in law and in facts by convicting the Appellant but failed to note that the case was not proved beyond reasonable doubt by the Respondent;
b) The learned trial magistrate erred in law and fact by failing to appreciate that the prosecution case was marred with contradiction which greatly vitiated the credibility of the prosecution evidence; and
c) The learned trial magistrate erred in law and fact by convicting without considering that the Appellant’s rights under Article 50 of the Constitution were violated.
5. In his written submissions the appellant contends that penetration was not established on grounds that the DNA report does not relate to the complainant and her child because the names in it (Yvonne Mutecha Bulemi and Angel Nina) differ from those given in evidence (Yvonne Michele / Michelle and Angel Lilian) and in the P3 and post-rape care forms.
6. The appellant further contends that the gestational age was variously put at 23, 28 and 30 weeks and that a pregnancy said to have been conceived in January 2023 could not result in a birth on 19th October 2023.
7. He also argues that the complainant's age was given as 13 years by some witnesses and 16 years by herself.
8. The appellant states that the report of the incident was delayed by seven months and thatit is the complainant's stepmother who orchestrated the accusation against the Appellant.
9. The respondent, through Ms. Anyumba, Principal Prosecution Counsel, submits that both ingredients of incest were proved. It is maintained that the relationship between the victim and the appellant was established by the birth certificate, the appellant's own admission and the DNA report which was produced as prosecution’s exhibit 5 which confirmed that the child, A.N, the daughter born to PW3(victim) was the appellant’s biological daughter.
10. The second ingredient of penetration was proved by the complainant's direct evidence corroborated by the medical evidence and the resulting pregnancy.
11. The Respondent submits that the discrepancies complained of are not grave and that the sentence is lawful and mandatory.
12. This being a first appeal, this court is obliged to re-evaluate the evidence afresh and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses, a principle established in the case of Okeno v Republic [1972] EA 32 .
13. I have accordingly read the entire record and considered the rival submissions and discern the following issues for determination:
(a) Whether the ingredients of the offence of defilement were proved beyond reasonable doubt.
(b) whether the appellant's fair trial rights were infringed;
(f) whether the sentence is lawful.
Analysis and determination
(a) Relationship
14. Section 20 (1) of the Sexual Offences Act provides that:
‘ 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 of a term not less than 10 years;
provided that if it is alleged in the information or charge and proved that the female person is under the age of 18 years, the accused person shall be liable to imprisonment to 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 . ”
15. Section 20(1) requires knowledge that the female person is the offender's daughter. PW3 testified that the appellant is her father and that she lived with him. PW7 produced her birth certificate, exhibit 1, naming the appellant as her father. PW6's analysis placed the appellant's paternity of the complainant at 99.99%. Decisively, the appellant himself stated in his defence that the complainant is his daughter by his deceased second wife.
16. Nothing in the appellant's submission that the complainant is a stepdaughter can survive his own admission at trial, and in any event he conceded residing with and assuming parental responsibility for her from the age of ten. This ingredient was proved to the hilt.
(b) Penetration
18. Penetration is defined in Section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another. PW3 gave a clear, first-hand account of the appellant entering her room at night, forcing her to undress and having forceful intercourse with her, followed by pain, bleeding and discharge, and of repeated defilement thereafter. The medical evidence of an old torn hymen and a pregnancy of some 30 weeks as at 2nd August 2023 is entirely consistent with that account.
19. The evidence goes further than most cases of this kind. The DNA analysis established that the child delivered by the complainant was fathered by the appellant. That single finding proves penetration and identifies the perpetrator at once. Identification was in any case by recognition of a father by his own daughter in the home they shared, which is recognition of the most reliable kind.
20. Even absent the scientific evidence, the proviso to section 124 of the Evidence Act permits conviction on the evidence of the victim alone where the court believes her and records its reasons. The trial court expressly found the complainant's evidence candid and believable. On my own reading of the record, that finding was plainly open to it.
21. The appellant's attempt to take his own life immediately upon learning of the disclosure was treated by the trial court as conduct inconsistent with innocence. Such conduct is admissible under section 8 of the Evidence Act as relevant to the appellant's state of mind, though it is not by itself proof of guilt. It was, correctly, treated as no more than a supporting circumstance.
22. The suggestion that the complainant was procured by a vengeful stepmother was raised for the first time in submissions, was never put to PW3 or any other witness in cross-examination, and is irreconcilable with the DNA evidence. It is rejected.
(c) Age of the complainant
23. Age is a critical ingredient where it determines the sentence. The Court of Appeal in Mwalango Chichoro Mwanjembe v Republic, Mombasa Criminal Appeal No. 24 of 2015 held that age may be proved by a birth certificate, baptismal card, the oral evidence of the child if sufficiently intelligent, the evidence of parents or guardians, or medical evidence, provided the proof relied on is credible and reliable.
24. Here the complainant testified that she was born on 5th August 2007; the birth certificate, exhibit 1, was produced by PW7 and the charge sheet put her age at 16 years. PW5, relying on the clinical notes of Dr. Itumbi, spoke of a date of birth of 5th August 2009 and described the patient as 13 years old. The discrepancy is real but immaterial. On either version the complainant was well under the age of eighteen years at the time of the offence, which is the only age threshold that section 20(1) makes operative. The documentary evidence, being the best evidence, resolves the point in any event, and the appellant did not challenge exhibit 1 when it was produced.
25. I do note that although the trial court framed the age of the victim as an issue for determination, it did not return an express finding on it. It is, however, curable lapse. This court has re-evaluated the evidence and is satisfied that the complainant was a child under eighteen years, and no failure of justice has been occasioned within the meaning of section 382 of the Criminal Procedure Code.
(d) The alleged contradictions
26. The law is settled that not every discrepancy in the prosecution case is fatal. In Erick Onyango Ondeng' v Republic [2014] eKLR and Dima Denge Dima & Others v Republic [2013] eKLR the Court of Appeal held that only contradictions going to the root of the case and pointing to deliberate untruthfulness will vitiate a conviction. Minor discrepancies are to be expected.
27. As to the names in the DNA report, PW6 analysed samples drawn on the order of the very court seized of this matter, from the appellant, the complainant and her child. Variations between "Yvonne Mutecha Bulemi", "Yvonne Mitchel Bulemi" and "Yvonne Michele", and between "Angel Nina" and "Angel Lilian", are variations in the given names of the same two persons, a commonplace occurrence where a child is known by more than one name.
28. The chain of custody and the identity of the sample donors were never challenged in cross-examination, and it is not open to the appellant to raise on appeal a factual objection he declined to put to the witness at trial.
29. As to gestational age, the variation between 23, 28 and 30 weeks is explained by the fact that only PW5 spoke from the clinical record. The lay witnesses were relating what they had been told.
30. The clinical finding of some 30 weeks as at 2nd August 2023 places conception in or about early January 2023, which is precisely the period the complainant described and which falls squarely within the dates in the charge.
31. The arithmetical objection that a child conceived in January 2023 could not be born on 19th October 2023 is misconceived. That interval is approximately nine months and two weeks, which is an ordinary term of gestation. The submission that this amounts to a ten-month pregnancy is simply an error of counting.
32. As to the complainant saying she had intercourse with the appellant "once" while other witnesses spoke of repeated defilement, the charge is laid on diverse dates and a single act of penetration is sufficient to constitute the offence. Whether there was one act or many does not affect the conviction.
33. As to delay in reporting, the complainant was a child living alone with the very person who was abusing her, the only surviving parent and her sole source of support. Delay in such circumstances is entirely comprehensible and does not of itself dent credibility. The matter came to light only when her pregnancy became visible to her teachers, which is itself consistent with her account.
34. As to the production of the P3 and post-rape care forms by PW5 rather than their maker, that course is permitted by Section 33 of the Evidence Act where the maker is unavailable and the producing witness is familiar with the handwriting and signature. No objection was taken at trial and cannot therefore be raised on appeal.
35. Finally, the variance between "Workers Estate, Gilgil" in the charge and the complainant's reference to Nakuru Pipeline, the place of the offence is not an ingredient of incest thus immaterial.
36. I therefore find that the inconsistencies relied upon are peripheral and do not touch the core of the prosecution case, which is that the appellant fathered a child on his own daughter.
35. On whether there is any violation of the Appellant’s constitutional rights, the appellant asserts a violation of Article 50 but particularises none. A complaint of this gravity cannot be advanced in the abstract. The burden lies on the party alleging it to identify the right infringed and the manner of infringement.
36. The record in any event discloses a regular trial. The appellant was arraigned on 7th August 2023 and pleaded to both counts. A voir dire examination was conducted before the child witness testified. He cross-examined the prosecution witnesses. On a prima facie case being found, section 211 of the Criminal Procedure Code was explained to him in Kiswahili, a language he understood, and he elected to give unsworn evidence and to call no witness. He was convicted by a reasoned judgment and has exercised his right of appeal. This ground fails.
37. I find that both limbs of the proviso to Section 20(1) of the Sexual Offences Act were satisfied, leading to the conviction and sentence of the Appellant.
38. An appellate court will not interfere with sentence unless the trial court acted on a wrong principle, overlooked a material factor, took into account an irrelevant one, or the sentence is manifestly excessive. None of those grounds were met in this case.
39. The constitutionality of the sentences prescribed by the Sexual Offences Act is no longer open to argument. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) , the Supreme Court set aside the Court of Appeal's declaration that the minimum sentences under the Act are unconstitutional.
40. The position was reaffirmed in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) , where the court restored a life sentence that the Court of Appeal had substituted with a term of forty years, holding that it is for Parliament and not the courts to prescribe or equate sentences.
41. The aggravating features of this case are grave. The appellant was the complainant's only surviving parent and sole protector. He exploited her grief for her mother, coercing her by the threat of his own death. The abuse was repeated, and it left a child of thirteen or sixteen years to bear and raise her own father's daughter.
42. In the end, I find the appeal as against the conviction and sentence to be bereft of merit. It is dismissed in its entirety.
Dated, signed and delivered at Nakuru this 21st day of September 2026.
J. K SERGON
JUDGE
In the Presence of :
C/A Jamleck/Rutoh
Appellant: Present in person
Mr. Baya for Prosecution
2 | Page