1. Jeremiah Ekaran Epaya , the Appellant, was charged with the offence of Incest contrary to Section 20(1) of the Sexual Offences Act. Particulars of the offence were that on the 1 st May 2015 at Maundu Meri village in Laikipia County he intentionally and unlawfully caused his male organ namely penis to penetrate the vagina of M.N.E. a child aged 5 years who to his knowledge was his daughter.
2. In the alternative he faced the charge of Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. Particulars being that on the 15 th day of May, 2015, at Maundu Meri village within Laikipia County he intentionally and unlawfully caused his penis to come into contact with the vagina of M.N. without her consent.
3. Having denied the charges, the Appellant was subjected to full trial, found guilty, convicted for the offence of incest and sentenced to serve life imprisonment.
4. Aggrieved, the Appellant appealed on grounds that; the court erred in law and fact by convicting him based on suspicion; the court failed to quote the section which the conviction was based and the discharge in the child’s genetalia should have been examined to ascertain the person responsible.
5. At a later stage the Appellant filed amended grounds of appeal, that, the learned magistrate acted on wrong principles of the law and upheld the sentence, yet life imprisonment was not a mandatory sentence; and that the court sentenced the Appellant to life imprisonment yet the age of the complainant and penetration were not proved.
6. Briefly, facts of the case were that the complainant was playing with two other children when she was called by the assailant to the house. He violated her sexually and threatened to kill and threw her body into the latrine. During the ordeal he also strangled her neck in the process.
7. PW2 Grace Lekano, her aunt who had gone to see her sister noticed she had injuries and her face was swollen. She took her to her house and with the help of the neighbours they examined her and realized she had been violated sexually. The complainant mentioned her father as the assailant. They took her to hospital where she was examined and treated. The matter was reported to the police and the Appellant was arrested and charged.
8. Upon being placed on his defence the Appellant stated that he went home after work and found his wife whom he told to make some tea. A witness that he had a grudge with went home and asked him to take a walk with him. They went to Rumuruti and took refreshments. There after they rode his motor cycle to the police station and he was arrested. He denied having knowledge of the incident.
9. The Appellant canvassed the appeal through written submissions that I have taken into consideration.
10. This being a first appeal, the court is bound to subject evidence adduced before the trial court to a fresh evaluation and analysis, bearing in mind the fact of not having had the opportunity of hearing the witnesses and observing their demeanor. This was stated in Okeno v Republic [1972] EA 32 as follow;
“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 v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. 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 findings and conclusions; 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. 424.”
11. The Appellant was stated to have contravened Section 20(1) of the Sexual Offences Act which 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 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.
12. The State bore the responsibility of proving elements of the offence namely;
i) Age of the victim for purposes of sentencing.
ii) Identification of the perpetrator.
iii) Knowledge on the part of the perpetrator that the victim was a relative.
iv) The act of penetration.
13. Regarding the age of the victim, at the time of the alleged act she was stated to be five (5) years old. In Mwalango Chichoro Mwanjembe v Republic Mombasa Criminal Appeal No 24 of 2015 the court stated that;
“The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R Cr. Appeal No.19 of 2014 and Omar Uche v R,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim. Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable.”
14. The victim was subjected to age assessment on 26 th August, 2026, and found to be six (6) years old. This was confirmation that at the time of the act she was five (5) years old.
15. The victim identified the Appellant as the perpetrator of the act. She referred to him as her father. As to the degree of blood relationship between the Appellant and victim, Section 22 (1) of the Sexual Offences Act provides that;
In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half-father and an uncle of the first degree and a mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not.
16. PW3 Lucy Elemon the mother of the victim stated that the Appellant was the victim’s stepfather. In BNM v republic [2011] eKLR the court stated that;
“Does this fact that no biological or blood ties exist between the two negate a charge of Incest? The answer is to be found in section 22 of the Sexual Offences Act which deals with ‘Test of relationship’. S. 22(1) provides as follows:
“22(1) In cases of the offences of Incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not …”
My own understanding is that ‘half father’ is a term which means exactly the same as ‘step-father’ – it means one who is not a biological father of the child. Therefore, by dint of this S 22(1) of the Act the appellant being a step-father of the complainant and one who stood in ‘loquo parenthis’ can legally be charged and indeed convicted of the crime of Incest with her.
In her evidence the complainant made a brief statement in which she said that her ‘daddy’ whom she positively identified in court put his finger into her vagina.”
17. In his defence the Appellant was silent on the question of relationship but he acknowledged the wife hence evidence of the relationship between him and the victim as a father was not in dispute.
18. As for the act of penetration, it is defined by Section 2 of the Sexual offences Act as;
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;”
19. Evidence as to what transpired was from the victim. She stated that the Appellant, her father, strangled her, made her lie on the floor and poked her on the neck with his hand and threatened to kill and throw her body in the toilet if she divulged the information to anyone. He placed a piece of wood on her neck as she bent facing downwards and inserted his ‘thing’ where she urinates from. He also beat her hence she went and slept.
20. PW3 testified that she was away from home when the incident occurred. But, on returning home at about 7.00 pm she found the victim asleep and when she woke up at 8.00 pm she went to ease herself and refused to eat. The following morning the Appellant told her not to go to work and not to take the child to hospital. He forced her to go to the farm to plant maize yet the child was sick. On her return the child was not home. She came to learn she had been taken to hospital.
21. PW2 Grace Lekono the Complainant’s aunt on seeing the child noted she had a swollen face, scratches on her neck and eyes were red. On examination she noticed the discharge in her genetalia hence took her to hospital.
22. PW6 Henry Kemboi Chepkoye, the officer in charge Rumuruti Sub County Hospital received and examined the complainant on 2 nd May, 2025. He testified that the child had bruises on the neck. She had tears and feaces on her vaginal canal. Since they did not have a laboratory technician at the facility they immediately transferred the child to Nyahururu County Hospital.
23. PW5 Dr. Joseph Karimi Kinyua of Nyahururu County Hospital on examining the child noted that she was withdrawn and worried. She had multiple neck bruises and was bruised on the cheeks as well while the face appeared slightly swollen. She had sustained vaginal, rectal and perineal tears. The sphincter was partially torn. There was no hymen. The virginal and rectal walls were blood stained. All these was attributed to forceful penetration. The victim developed rectal fistula. This was evidence of penetration beyond reasonable doubt.
24. In arguing that he was not the perpetrator, the Appellant urged that it was all suspicion. That his wife forcibly wanted to take his 5-acre parcel of land. He further faulted the trial court for not considering his defence.
25. He stated that his parents were killed in clashes leaving him with 5 acres of land which brought about a grudge between him and his in laws. This was an allegation not established. His wife testified to having found the child sick and he deterred her from taking her to hospital. There was no comment on the allegation. The victim was a child aged 5 years who called him ‘daddy’. She stated that he never used to beat her but would beat her mother whenever he came home at night.
26. PW2 acted on seeing the child’s face swollen, a fact confirmed by the doctor.
27. Section 124 of the Evidence Act provides;
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.
28. The trial court in considering evidence of the complainant stated that;
“The complainant’s testimony that the accused person strangled her was consistent with the findings by the medical officer that there were bruises on her neck, cheeks and face. The minor struck me as a truthful and honest child and I am convinced that she would not have been mistaken the accused person for anyone else”.
29. The trial court observed the demeanor of the child and found her truthful. The question there having been some doubt about the perpetrator does not arise.
30. On the question of the sentence, as provided by the proviso of Section 20 (1) of the Sexual Offences Act , it is discretionary. The court sentenced the offender as provided stated that;
“I hereby sentence the accused person, as the law provides to life imprisonment.”
31. The Appellant urges that the court acted on wrong principles of the law. For avoidance of doubt the proviso to Section 20(1) of the Sexual Offences Act states as follows;
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.
32. The trial court was seized of discretion to impose a sentence between 10 years which is the minimum sentence provided upto the life imprisonment that it settled for. Life imprisonment is not a mandatory sentence but it was the maximum sentence the court could impose. The court must have considered aggravating factors, and the trauma of the victim in arriving at the decision.
33. However, the Appellant was a first offender. Courts today consider the rehabilitative aspect of sentence as opposed to punishment. The Appellant may reform. For that reason, I set aside the sentence meted which I substitute with Thirty (30) years imprisonment to be effective from 3 rd May, 2015.
34. It is so ordered.
HCCRA 3 OF 2020 (JUDG.) Page 2 of 2
2. In the alternative he faced the charge of Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. Particulars being that on the 15 th day of May, 2015, at Maundu Meri village within Laikipia County he intentionally and unlawfully caused his penis to come into contact with the vagina of M.N. without her consent.
3. Having denied the charges, the Appellant was subjected to full trial, found guilty, convicted for the offence of incest and sentenced to serve life imprisonment.
4. Aggrieved, the Appellant appealed on grounds that; the court erred in law and fact by convicting him based on suspicion; the court failed to quote the section which the conviction was based and the discharge in the child’s genetalia should have been examined to ascertain the person responsible.
5. At a later stage the Appellant filed amended grounds of appeal, that, the learned magistrate acted on wrong principles of the law and upheld the sentence, yet life imprisonment was not a mandatory sentence; and that the court sentenced the Appellant to life imprisonment yet the age of the complainant and penetration were not proved.
6. Briefly, facts of the case were that the complainant was playing with two other children when she was called by the assailant to the house. He violated her sexually and threatened to kill and threw her body into the latrine. During the ordeal he also strangled her neck in the process.
7. PW2 Grace Lekano, her aunt who had gone to see her sister noticed she had injuries and her face was swollen. She took her to her house and with the help of the neighbours they examined her and realized she had been violated sexually. The complainant mentioned her father as the assailant. They took her to hospital where she was examined and treated. The matter was reported to the police and the Appellant was arrested and charged.
8. Upon being placed on his defence the Appellant stated that he went home after work and found his wife whom he told to make some tea. A witness that he had a grudge with went home and asked him to take a walk with him. They went to Rumuruti and took refreshments. There after they rode his motor cycle to the police station and he was arrested. He denied having knowledge of the incident.
9. The Appellant canvassed the appeal through written submissions that I have taken into consideration.
10. This being a first appeal, the court is bound to subject evidence adduced before the trial court to a fresh evaluation and analysis, bearing in mind the fact of not having had the opportunity of hearing the witnesses and observing their demeanor. This was stated in Okeno v Republic [1972] EA 32 as follow;
“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 v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. 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 findings and conclusions; 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. 424.”
11. The Appellant was stated to have contravened Section 20(1) of the Sexual Offences Act which 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 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.
12. The State bore the responsibility of proving elements of the offence namely;
i) Age of the victim for purposes of sentencing.
ii) Identification of the perpetrator.
iii) Knowledge on the part of the perpetrator that the victim was a relative.
iv) The act of penetration.
13. Regarding the age of the victim, at the time of the alleged act she was stated to be five (5) years old. In Mwalango Chichoro Mwanjembe v Republic Mombasa Criminal Appeal No 24 of 2015 the court stated that;
“The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R Cr. Appeal No.19 of 2014 and Omar Uche v R,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim. Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable.”
14. The victim was subjected to age assessment on 26 th August, 2026, and found to be six (6) years old. This was confirmation that at the time of the act she was five (5) years old.
15. The victim identified the Appellant as the perpetrator of the act. She referred to him as her father. As to the degree of blood relationship between the Appellant and victim, Section 22 (1) of the Sexual Offences Act provides that;
In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half-father and an uncle of the first degree and a mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not.
16. PW3 Lucy Elemon the mother of the victim stated that the Appellant was the victim’s stepfather. In BNM v republic [2011] eKLR the court stated that;
“Does this fact that no biological or blood ties exist between the two negate a charge of Incest? The answer is to be found in section 22 of the Sexual Offences Act which deals with ‘Test of relationship’. S. 22(1) provides as follows:
“22(1) In cases of the offences of Incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not …”
My own understanding is that ‘half father’ is a term which means exactly the same as ‘step-father’ – it means one who is not a biological father of the child. Therefore, by dint of this S 22(1) of the Act the appellant being a step-father of the complainant and one who stood in ‘loquo parenthis’ can legally be charged and indeed convicted of the crime of Incest with her.
In her evidence the complainant made a brief statement in which she said that her ‘daddy’ whom she positively identified in court put his finger into her vagina.”
17. In his defence the Appellant was silent on the question of relationship but he acknowledged the wife hence evidence of the relationship between him and the victim as a father was not in dispute.
18. As for the act of penetration, it is defined by Section 2 of the Sexual offences Act as;
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;”
19. Evidence as to what transpired was from the victim. She stated that the Appellant, her father, strangled her, made her lie on the floor and poked her on the neck with his hand and threatened to kill and throw her body in the toilet if she divulged the information to anyone. He placed a piece of wood on her neck as she bent facing downwards and inserted his ‘thing’ where she urinates from. He also beat her hence she went and slept.
20. PW3 testified that she was away from home when the incident occurred. But, on returning home at about 7.00 pm she found the victim asleep and when she woke up at 8.00 pm she went to ease herself and refused to eat. The following morning the Appellant told her not to go to work and not to take the child to hospital. He forced her to go to the farm to plant maize yet the child was sick. On her return the child was not home. She came to learn she had been taken to hospital.
21. PW2 Grace Lekono the Complainant’s aunt on seeing the child noted she had a swollen face, scratches on her neck and eyes were red. On examination she noticed the discharge in her genetalia hence took her to hospital.
22. PW6 Henry Kemboi Chepkoye, the officer in charge Rumuruti Sub County Hospital received and examined the complainant on 2 nd May, 2025. He testified that the child had bruises on the neck. She had tears and feaces on her vaginal canal. Since they did not have a laboratory technician at the facility they immediately transferred the child to Nyahururu County Hospital.
23. PW5 Dr. Joseph Karimi Kinyua of Nyahururu County Hospital on examining the child noted that she was withdrawn and worried. She had multiple neck bruises and was bruised on the cheeks as well while the face appeared slightly swollen. She had sustained vaginal, rectal and perineal tears. The sphincter was partially torn. There was no hymen. The virginal and rectal walls were blood stained. All these was attributed to forceful penetration. The victim developed rectal fistula. This was evidence of penetration beyond reasonable doubt.
24. In arguing that he was not the perpetrator, the Appellant urged that it was all suspicion. That his wife forcibly wanted to take his 5-acre parcel of land. He further faulted the trial court for not considering his defence.
25. He stated that his parents were killed in clashes leaving him with 5 acres of land which brought about a grudge between him and his in laws. This was an allegation not established. His wife testified to having found the child sick and he deterred her from taking her to hospital. There was no comment on the allegation. The victim was a child aged 5 years who called him ‘daddy’. She stated that he never used to beat her but would beat her mother whenever he came home at night.
26. PW2 acted on seeing the child’s face swollen, a fact confirmed by the doctor.
27. Section 124 of the Evidence Act provides;
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.
28. The trial court in considering evidence of the complainant stated that;
“The complainant’s testimony that the accused person strangled her was consistent with the findings by the medical officer that there were bruises on her neck, cheeks and face. The minor struck me as a truthful and honest child and I am convinced that she would not have been mistaken the accused person for anyone else”.
29. The trial court observed the demeanor of the child and found her truthful. The question there having been some doubt about the perpetrator does not arise.
30. On the question of the sentence, as provided by the proviso of Section 20 (1) of the Sexual Offences Act , it is discretionary. The court sentenced the offender as provided stated that;
“I hereby sentence the accused person, as the law provides to life imprisonment.”
31. The Appellant urges that the court acted on wrong principles of the law. For avoidance of doubt the proviso to Section 20(1) of the Sexual Offences Act states as follows;
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.
32. The trial court was seized of discretion to impose a sentence between 10 years which is the minimum sentence provided upto the life imprisonment that it settled for. Life imprisonment is not a mandatory sentence but it was the maximum sentence the court could impose. The court must have considered aggravating factors, and the trauma of the victim in arriving at the decision.
33. However, the Appellant was a first offender. Courts today consider the rehabilitative aspect of sentence as opposed to punishment. The Appellant may reform. For that reason, I set aside the sentence meted which I substitute with Thirty (30) years imprisonment to be effective from 3 rd May, 2015.
34. It is so ordered.
HCCRA 3 OF 2020 (JUDG.) Page 2 of 2