JUDGEMENT OF THE COURT:
(Being an Appeal against the Judgment by Hon M.W. Kurumbu (P.M.) in Chief Magistrate Court at Thika Case No. E025/2021, Delivered on 18th July, 2023).
1. Many are the decisions on the burden and standard of proof in any criminal case. In respect I find the decision of Woolmington Vs DPP (1935) AC 462, apposite, where it was remarked that in English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to the defense of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
2. This being a first appeal, the court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal is to be well deliberated and resolutely expressed. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.
3. Nancy Muthoni Ndegwa(PW1) was informed by her mother that the appellant on 11th April 2021 had defiled the victim. The child was in the hospital on 17th April 2021 and come 19th April 2021, the matter was reported to Thika Police Station and a P3 Form was issued and filled. The witness marked PRC as MFI 1, Lab Results as MFI 2 and P3 Form as MFI 3. Under cross examination, the witness said that the incident took place on 11th April 2021.On 17th April 2021 she called by her mother and she went to the hospital and the results of the lab were, that the victim had been defiled. Joan told her that the appellant had taken the victim into a house and that the witness was not present when the incident took place.
4. Joyce Wanjku Ndegwa(PW2) said that the appellant went to her house on 11th April 2021 drunk. He prepared food for him and left for a welfare meeting leaving behind the appellant, her two grandchildren and Mercy. In the following day, the appellant left for Githunguri and came back on 16th April 2021. It was on this day that in the cause of taking the victim for a shower, she notice that she was walking with her legs apart. She examined her private parts and saw redness. In the process, the victim told her that the appellant “si ni yule uncle alikuwa huyu” The witness said that the victim told her to take him the slippers in his bedroom and upon taking, he touched her vagina using his fingers. The child was taken to the hospital on 17th April 2021 and the Doctor confirmed that he had been defiled. The child was on 19th April 2021 taken to Level 5 Hospital, Thika and the matter reported to Thika Police Station. The witness identified PRC as MFI 1, Laboratory results as MFI 2 and P3 Form as MFI 3. Under cross examination, the witness said that the victim confirmed that the appellant defiled her. She went to Chama and left the appellant, Mercy, Nancy, the victim and J. The witness discovered that the victim had been defiled because she was not ready to bathe as the soap irritated her. She took her to the hospital. The victim said that the appellant took her to his bedroom, placed her in bed and inserted his fingers in her private parts.
5. PC Henry Mwaura (PW3) is an investigation officer and that the matter was reported on 20th April 2021 at the station and booked it. Upon investigation, the officer said that the appellant had visited the home of the victim’s grandmother while drunk. Upon taking food, he was taken to the guest room within the same house. In the process, he asked the victim to take sleepers to him in the room. The appellant then asked the victim that they play a game. He lifted the victim and placed her in bed, raised her skirt up and lowered her short. “aliniguza kasusu na kidole---tutacheza mchezo sisi wawili. Aliniingiza kitu kwa susu nikasikia uchungu” The witness reiterated what the rest of the witnesses had said. The P3 Form was duly filled and the witness produced a birth certificate as exhibit 4. Under cross examination, the witness said that the matter was reported on 20th April 2021 as nobody was aware of the incident. The appellant promised sweets and mutura to the victim, after the ordeal.
6. Voire dire examination was conducted by trial magistrate before J.W.(PW4) testified and the court remarked that the minor understood the essence of telling the truth. She told court that on a particular day while playing at her grandmother’s home, came the appellant called her to the guest room, undressed her and lowered her shorts and placed her in bed. “akaniguza susu na mkono.” I use susu to urinate. Thereafter, the appellant bought her sweets and mutura at a shopping Centre. A few days later, she was feeling pain in her susu and that is when she spilt the beans. Under cross examination, the witness said that the appellant was in the room alone. She took him sleepers and he touched her susu. She had a dress on without a pant. Upon further cross examination, the victim was shy and did not want to look at the appellant.
7. Beatrice Martha (PW5) is attached to Thika Level 5 Hospital and she produced PRC Form and P3 Form as Exhibits 1 and 3 respectively. Upon examination the outer genetalia was inflamed. Under cross examination, the witness said that the victim said that the appellant put fingers in her vagina. The hymen was broken while discharge was noted as a result of defilement. Sexual assault is not the only cause of broken hymen or the white discharge.
8. Being satisfied with evidence at hand, the Investigation Officer charged the Appellant with the offence of incest contrary to section 20(1) of the Sexual offences Act No. 3/2006. Particulars of the offence are that on the 11th day of April 2021 at Nyacaba area in Juja Sub-County within Kiambu County, intentionally and unlawfully caused his penis to penetrate the Vagina of J.J.W. a child aged 5 years whom to his knowledge is his granddaughter.
9. In the alternative count, the appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of ten Sexual Offences Act No.3 of 2006. Particulars of the offence are that on the 11th day of April 2021 at Nyacaba area in Juja Sub County within Kiambu County intentionally and unlawfully caused his penis to touch the Vagina of J.J.W. a child aged 5 years.
10. In his defence, the appellant Francis Kiarie Mwangi said that the victim is a grandchild and that on 11th April, 2021, he had visited his brother where the victim and others live. He played with children as that is his habit. They took dinner and slept that night at a guest room in the compound. On 12th April 2021, he went and collected his construction tools and, in the process, PW2 narrated to him how unfaithful his husband was. In revenge, she proposed to have an affair with him but the appellant declined. It is upon refusal that PW2 retorted, “wewe utakipata”. She was tricked and arrested by the police officers at Molo.
11. Under cross examination, the witness said that he received fare to visit his brother at Thika. At the time, he was not drunk and he was with the children. The wife to his brother saw him off.
12. Peter Ndegwa(DW2) said that he invited the appellant who is brother to his home. He had sought fare to Molo and he knew he would divert the monies and so upon arrival he did not give the money immediately. He spent the night and come in the morning, he asked his wife (PW2) to see him off at Nyamakima. His wife confirmed that he had seen him off at Nyamakima. The witness did not see anything odd about the victim and the time she was taken to the hospital, he was not aware. The witness said further his house has two sitting rooms. The guest room is near the inner sitting room and if anything happened in the guest room, it would be heard.
13. Under cross examination, the witness said that he learnt of the incident a week later. He cannot tell what happened on Sunday when his brother arrived but he was drunk.
14. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;
a. That the Learned Trial Magistrate erred in law and fact in convicting and sentencing the appellant on defective charge sheet.
b. That the Learned Trial Magistrate erred in law and fact in convicting and sentencing the appellant with contradictions and inconsistencies.
c. That the Learned Trial Magistrate erred in law and fact by convicting and sentencing the appellant yet the witnesses were incredible.
d. That the Learned Trial Magistrate erred in law and fact in convicting and sentencing the appellant without proof of ingredients of defilement.
e. That the medical evidence was questionable.
f. That the Learned Trial Magistrate erred in law and fact by failing to appreciate that this was clear frame-up.
g. The sentence is harsh, excessive and illegal.
15. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
16. I have with singleness of my mind, considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent. I have contextualized them in this Judgement. I do find it extremely apposite to drop anchor, in respect to the basic elements of incest. Section 20 (1) of the Sexual Offences Act 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."
17. In BKM V Republic [2023] KEHC 23271 (KLR) the court distilled the elements of the offence of incest further and held; “The prosecution was required to prove 3 ingredients of incest which are: -I. Penetration ii. Relationship iii. Age” Consequently, three elements of incest must be proved beyond reasonable doubt.
Relationship:
18. It is not contested that the victim is a grandniece/granddaughter to the appellant. She is a daughter to PW1 who is a daughter to PW2. PW2 is a wife to the appellant’s brother. In any event, the appellant had this to say in his defense; “Joyce Wanjiru Ndegwa is married to my brother. Nancy Muthoni is a daughter to my brother. J(victim) is Nancy’s child. She is like my grandchild” It is not disputed that the victim was a grandniece to the Appellant. The victim falls under the umbrella of a niece and therefore, within the definition of the relationship and consanguinity degree.
Age:
19. With respect to age, the Investigation Officer produced a birth certificate as exhibit 4 to demonstrate that indeed, the victim was born on 22nd April 2016. There was no rebuttal by the appellant on this aspect. It is not disputed therefore, that indeed, at the time of the commission of the offence, the victim was about 5 years old and so, a female person under the age of eighteen (18) years.
Penetration:
20. In D.S. Vs Republic [2022] eKLR, it was stated that-Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case, coupled with a medical examination, must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh, with thorough scrutiny and utmost caution, the evidence of the child in order to determine whether there was penetration.
21. Penetration under Section 2 of Sexual Offences Act has been defined as the partial or complete insertion of the genital organ of a person into the genital organs of another person. Therefore, the prosecution was under duty to prove, that the appellant inserted his penis into the vagina of the minor.
22. It is in evidence that when the appellant arrived at their home on 11th April 2021, he asked the victim to take sleepers into his bedroom and asked her to play a game with him. He then placed her in bed “akaniguza susus na mkono”said she. Further, she said she uses her susu to urinate. The appellant then pulled her dress and shorts down to the knees and then touched her susu with a hard thing of his, while she was in bed and then placed her legs apart as she was still sleeping on his bed facing up. She felt a sharp pain as she said “alinipanguza kitu kwa susu. The appellant then dressed her up and warned her, not to tell anyone. This piece of evidence is intriguing. I am curious to know more. Why touch the vagina of your great niece with your hard thing? Why undress and spread the legs of your great niece apart, while facing up, causing a sharp pain and then rub her susu? Why warn her not to disclose to anybody? PW5 produced PRC Form and P3 Form which show that upon examination, the vaginal opening was inflamed, hymen broken and a white mucoid discharge from the vagina. Apart from her oral testimony in court, the medical documents and the evidence of the Clinician (PW5) corroborates each other that the appellant used his penile organ to penetrate the vagina of the minor.
Defective Charge sheet:
23. It was argued that the victim was alleged to be a granddaughter to the appellant thus rendering the charge sheet defective. I believe this did not cause any prejudice as the victim as explained under paragraph 17 was a great niece and fell under the degree of consanguinity. Besides, the appellant, for lack of description, told court that the victim is a daughter to his niece and is like his granddaughter. That is the same victim we are dealing with.
24. In conclusion, the court make a finding that;
a. The Appeal lacks merit and is hereby, dismissed.
b. This court upholds the conviction and sentence of the trial Court.
Delivered virtually this 10th September, 2026 in the presence of the Appellant, Mr Odongo for the Appellant and Ms Tolosi for ODPP and Sagasi Court Assistant.
(Being an Appeal against the Judgment by Hon M.W. Kurumbu (P.M.) in Chief Magistrate Court at Thika Case No. E025/2021, Delivered on 18th July, 2023).
1. Many are the decisions on the burden and standard of proof in any criminal case. In respect I find the decision of Woolmington Vs DPP (1935) AC 462, apposite, where it was remarked that in English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to the defense of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
2. This being a first appeal, the court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal is to be well deliberated and resolutely expressed. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.
3. Nancy Muthoni Ndegwa(PW1) was informed by her mother that the appellant on 11th April 2021 had defiled the victim. The child was in the hospital on 17th April 2021 and come 19th April 2021, the matter was reported to Thika Police Station and a P3 Form was issued and filled. The witness marked PRC as MFI 1, Lab Results as MFI 2 and P3 Form as MFI 3. Under cross examination, the witness said that the incident took place on 11th April 2021.On 17th April 2021 she called by her mother and she went to the hospital and the results of the lab were, that the victim had been defiled. Joan told her that the appellant had taken the victim into a house and that the witness was not present when the incident took place.
4. Joyce Wanjku Ndegwa(PW2) said that the appellant went to her house on 11th April 2021 drunk. He prepared food for him and left for a welfare meeting leaving behind the appellant, her two grandchildren and Mercy. In the following day, the appellant left for Githunguri and came back on 16th April 2021. It was on this day that in the cause of taking the victim for a shower, she notice that she was walking with her legs apart. She examined her private parts and saw redness. In the process, the victim told her that the appellant “si ni yule uncle alikuwa huyu” The witness said that the victim told her to take him the slippers in his bedroom and upon taking, he touched her vagina using his fingers. The child was taken to the hospital on 17th April 2021 and the Doctor confirmed that he had been defiled. The child was on 19th April 2021 taken to Level 5 Hospital, Thika and the matter reported to Thika Police Station. The witness identified PRC as MFI 1, Laboratory results as MFI 2 and P3 Form as MFI 3. Under cross examination, the witness said that the victim confirmed that the appellant defiled her. She went to Chama and left the appellant, Mercy, Nancy, the victim and J. The witness discovered that the victim had been defiled because she was not ready to bathe as the soap irritated her. She took her to the hospital. The victim said that the appellant took her to his bedroom, placed her in bed and inserted his fingers in her private parts.
5. PC Henry Mwaura (PW3) is an investigation officer and that the matter was reported on 20th April 2021 at the station and booked it. Upon investigation, the officer said that the appellant had visited the home of the victim’s grandmother while drunk. Upon taking food, he was taken to the guest room within the same house. In the process, he asked the victim to take sleepers to him in the room. The appellant then asked the victim that they play a game. He lifted the victim and placed her in bed, raised her skirt up and lowered her short. “aliniguza kasusu na kidole---tutacheza mchezo sisi wawili. Aliniingiza kitu kwa susu nikasikia uchungu” The witness reiterated what the rest of the witnesses had said. The P3 Form was duly filled and the witness produced a birth certificate as exhibit 4. Under cross examination, the witness said that the matter was reported on 20th April 2021 as nobody was aware of the incident. The appellant promised sweets and mutura to the victim, after the ordeal.
6. Voire dire examination was conducted by trial magistrate before J.W.(PW4) testified and the court remarked that the minor understood the essence of telling the truth. She told court that on a particular day while playing at her grandmother’s home, came the appellant called her to the guest room, undressed her and lowered her shorts and placed her in bed. “akaniguza susu na mkono.” I use susu to urinate. Thereafter, the appellant bought her sweets and mutura at a shopping Centre. A few days later, she was feeling pain in her susu and that is when she spilt the beans. Under cross examination, the witness said that the appellant was in the room alone. She took him sleepers and he touched her susu. She had a dress on without a pant. Upon further cross examination, the victim was shy and did not want to look at the appellant.
7. Beatrice Martha (PW5) is attached to Thika Level 5 Hospital and she produced PRC Form and P3 Form as Exhibits 1 and 3 respectively. Upon examination the outer genetalia was inflamed. Under cross examination, the witness said that the victim said that the appellant put fingers in her vagina. The hymen was broken while discharge was noted as a result of defilement. Sexual assault is not the only cause of broken hymen or the white discharge.
8. Being satisfied with evidence at hand, the Investigation Officer charged the Appellant with the offence of incest contrary to section 20(1) of the Sexual offences Act No. 3/2006. Particulars of the offence are that on the 11th day of April 2021 at Nyacaba area in Juja Sub-County within Kiambu County, intentionally and unlawfully caused his penis to penetrate the Vagina of J.J.W. a child aged 5 years whom to his knowledge is his granddaughter.
9. In the alternative count, the appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of ten Sexual Offences Act No.3 of 2006. Particulars of the offence are that on the 11th day of April 2021 at Nyacaba area in Juja Sub County within Kiambu County intentionally and unlawfully caused his penis to touch the Vagina of J.J.W. a child aged 5 years.
10. In his defence, the appellant Francis Kiarie Mwangi said that the victim is a grandchild and that on 11th April, 2021, he had visited his brother where the victim and others live. He played with children as that is his habit. They took dinner and slept that night at a guest room in the compound. On 12th April 2021, he went and collected his construction tools and, in the process, PW2 narrated to him how unfaithful his husband was. In revenge, she proposed to have an affair with him but the appellant declined. It is upon refusal that PW2 retorted, “wewe utakipata”. She was tricked and arrested by the police officers at Molo.
11. Under cross examination, the witness said that he received fare to visit his brother at Thika. At the time, he was not drunk and he was with the children. The wife to his brother saw him off.
12. Peter Ndegwa(DW2) said that he invited the appellant who is brother to his home. He had sought fare to Molo and he knew he would divert the monies and so upon arrival he did not give the money immediately. He spent the night and come in the morning, he asked his wife (PW2) to see him off at Nyamakima. His wife confirmed that he had seen him off at Nyamakima. The witness did not see anything odd about the victim and the time she was taken to the hospital, he was not aware. The witness said further his house has two sitting rooms. The guest room is near the inner sitting room and if anything happened in the guest room, it would be heard.
13. Under cross examination, the witness said that he learnt of the incident a week later. He cannot tell what happened on Sunday when his brother arrived but he was drunk.
14. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;
a. That the Learned Trial Magistrate erred in law and fact in convicting and sentencing the appellant on defective charge sheet.
b. That the Learned Trial Magistrate erred in law and fact in convicting and sentencing the appellant with contradictions and inconsistencies.
c. That the Learned Trial Magistrate erred in law and fact by convicting and sentencing the appellant yet the witnesses were incredible.
d. That the Learned Trial Magistrate erred in law and fact in convicting and sentencing the appellant without proof of ingredients of defilement.
e. That the medical evidence was questionable.
f. That the Learned Trial Magistrate erred in law and fact by failing to appreciate that this was clear frame-up.
g. The sentence is harsh, excessive and illegal.
15. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
16. I have with singleness of my mind, considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent. I have contextualized them in this Judgement. I do find it extremely apposite to drop anchor, in respect to the basic elements of incest. Section 20 (1) of the Sexual Offences Act 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."
17. In BKM V Republic [2023] KEHC 23271 (KLR) the court distilled the elements of the offence of incest further and held; “The prosecution was required to prove 3 ingredients of incest which are: -I. Penetration ii. Relationship iii. Age” Consequently, three elements of incest must be proved beyond reasonable doubt.
Relationship:
18. It is not contested that the victim is a grandniece/granddaughter to the appellant. She is a daughter to PW1 who is a daughter to PW2. PW2 is a wife to the appellant’s brother. In any event, the appellant had this to say in his defense; “Joyce Wanjiru Ndegwa is married to my brother. Nancy Muthoni is a daughter to my brother. J(victim) is Nancy’s child. She is like my grandchild” It is not disputed that the victim was a grandniece to the Appellant. The victim falls under the umbrella of a niece and therefore, within the definition of the relationship and consanguinity degree.
Age:
19. With respect to age, the Investigation Officer produced a birth certificate as exhibit 4 to demonstrate that indeed, the victim was born on 22nd April 2016. There was no rebuttal by the appellant on this aspect. It is not disputed therefore, that indeed, at the time of the commission of the offence, the victim was about 5 years old and so, a female person under the age of eighteen (18) years.
Penetration:
20. In D.S. Vs Republic [2022] eKLR, it was stated that-Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case, coupled with a medical examination, must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh, with thorough scrutiny and utmost caution, the evidence of the child in order to determine whether there was penetration.
21. Penetration under Section 2 of Sexual Offences Act has been defined as the partial or complete insertion of the genital organ of a person into the genital organs of another person. Therefore, the prosecution was under duty to prove, that the appellant inserted his penis into the vagina of the minor.
22. It is in evidence that when the appellant arrived at their home on 11th April 2021, he asked the victim to take sleepers into his bedroom and asked her to play a game with him. He then placed her in bed “akaniguza susus na mkono”said she. Further, she said she uses her susu to urinate. The appellant then pulled her dress and shorts down to the knees and then touched her susu with a hard thing of his, while she was in bed and then placed her legs apart as she was still sleeping on his bed facing up. She felt a sharp pain as she said “alinipanguza kitu kwa susu. The appellant then dressed her up and warned her, not to tell anyone. This piece of evidence is intriguing. I am curious to know more. Why touch the vagina of your great niece with your hard thing? Why undress and spread the legs of your great niece apart, while facing up, causing a sharp pain and then rub her susu? Why warn her not to disclose to anybody? PW5 produced PRC Form and P3 Form which show that upon examination, the vaginal opening was inflamed, hymen broken and a white mucoid discharge from the vagina. Apart from her oral testimony in court, the medical documents and the evidence of the Clinician (PW5) corroborates each other that the appellant used his penile organ to penetrate the vagina of the minor.
Defective Charge sheet:
23. It was argued that the victim was alleged to be a granddaughter to the appellant thus rendering the charge sheet defective. I believe this did not cause any prejudice as the victim as explained under paragraph 17 was a great niece and fell under the degree of consanguinity. Besides, the appellant, for lack of description, told court that the victim is a daughter to his niece and is like his granddaughter. That is the same victim we are dealing with.
24. In conclusion, the court make a finding that;
a. The Appeal lacks merit and is hereby, dismissed.
b. This court upholds the conviction and sentence of the trial Court.
Delivered virtually this 10th September, 2026 in the presence of the Appellant, Mr Odongo for the Appellant and Ms Tolosi for ODPP and Sagasi Court Assistant.