(Appeal from the Judgment dated 13/08/2023 and sentence delivered in Iten SPM Court Criminal Case No. E016 of 2024 by Hon. V. Karanja - PM)
1. This Appeal arises from the conviction and sentence of the Appellant in the said criminal case in which the Appellant was charged in two Counts. In Count I, he was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act. The particulars were that on 21/03/2024 at around 1830 hours at Yemit sub-Location, [………….] village in Marakwet West Sub-County, within Elgeyo Marakwet County, he intentionally touched the vagina of BJ with his penis, who was to his knowledge, his daughter. In Count II, the Appellant was jointly charged with his mother, with conspiracy to defeat justice and interference with witnesses, contrary to Section 117(a) of the Penal Code. The particulars were that on the same date, place and time above, he jointly conspired to mislead the investigating officer to defeat the course of justice by giving false information. The Appellant’s mother pleaded guilty to Count II, and was convicted and sentenced.
2. The Appellant, on his part, pleaded not guilty in both counts, and the case thus proceeded to full trial wherein the Prosecution called 8 witnesses. After close of the Prosecution case, the trial Court found the Appellant as having a case to answer, and put him to his defence. The Appellant, in his defence, testified for himself and did not call any other witness. The trial Court then convicted the Appellant and sentenced him to serve 100 years imprisonment in Count I, and 5 years imprisonment in Count II, which sentences were ordered to run concurrently.
3. Aggrieved by the decision, the Appellant filed this Appeal on 21/08/2024 in person. The unnecessarily lengthy and verbose Petition of Appeal contains 17 repetitive grounds, which with better drafting, could have been simply condensed into 3 or 4. The same, reproduced verbatim, is as follows:
i) That the learned trial Magistrate erred in law and fact in not declaring the complainant was a vulnerable witness and assign to her an intermediary according to the law. She instead subjected her to an examination in chief and resorted to inducing the complainant with a promise that she will be offered sweets in order to implicate the Appellant this impartiality offended Article 50 (1) of COK.
ii) That the learned trial Magistrate erred in matters of law and fact by not considering all the evidence on record to reach her decision. There were clear oral evidence and circumstantial evidence such as the medical evidence that the complainant was penetrated with a sharp object which was probably from the tree she slid from while crossing over the fence. The penetration was accidental and not from his penis which in any case is a blunt object.
iii) That the Honourable Magistrate erred in matters of law and fact by not according him a fair trial by turning the first mention date into a hearing where I objected that I was not ready to proceed while I was ill- prepared to put up a defence the reason why I lost this case. This ambush contravened the constitutional safe guard of being given adequate time to prepare for a defence under article 50 (2)(c).
iv) That the Honourable Magistrate erred in matters of law and fact by misapprehending the act of administering first aid to the complainant as a form of concealing evidence of the offence to defeat justice, which on the contrary was the most sensible and appropriate action take in the circumstance was a fact the act of first aid was not done without my input and learnt about the issue when I returned home from my mother.
v) That the Honourable Magistrate erred in matters of law and fact by not ensuring the prosecution did its obligatory duty of furnishing the Appellant with statement in this case for doctor and the surgical operation treatment notes the complainant underwent this contravened his right under article 50 (2)(j).
vi) That the Honourable Magistrate erred in matters of law and fact when she committed a big mistake in listening to hearsay evidence from coached witnesses from my former in-laws who had been coached and ganged up against me for not offering support for the children (twins) who had been left behind by my late wife. I was being framed in this case.
vii) That the learned trial Magistrate erred in law and fact in not complying with section 33 of S.O.A which requires the complainant or otherwise to give direct evidence that a defilement act was done to her. The complainant didn't say much, as well as there was no corroboration to support the alleged crime. This absence of the ingredient of penetrative sex was confirmed as she could have acquitted me u/sec 215 of CPC.
viii) That the learned trial Magistrate erred in law and fact by convicting and sentencing Appellant not based on sufficient evidence to prove its case beyond reasonable doubt according to section 107 of the Evidence Act. In these instant extraneous issues were used to make a finding in my case which was the charge on alleged witness interference and my mother's charge of giving false information to police. The only mistake here was the accusation that I was behind my mother's act of cleaning the child is not factual as I became aware of the same when she asked for money to take her to hospital much later in the evening
ix) That the trial Magistrate erred in law and fact by showing biasness against the Appellant during his trial by bringing up other charges against me and my mother which offends the article 50(1) COK which requires the Court not to be partial in handling my case as a procedural safeguard to a fair hearing for the Appellant.
x) That the learned trial Magistrate erred in law and fact in not considering a balance of both aggravating and mitigation factors in his case This case sentence of 100 years was informed by aggravating circumstances as inferred by its excessiveness limiting his right to article 25 (c) of COK and the sentencing guidelines of 2023.
xi) That the learned trial Magistrate erred in law and fact by not strictly complying with section 169 of the CPC. The judgement does not meet legal requirement as there is no clarity of facts which is discernible on her reasoning making her finding not to be clear either
xii) That the learned trial Magistrate erred in law and fact by not according him a fair trial under article 50(2) (h) in failing to inform him of the right to be assigned a lawyer at state expense for he underwent a lot of injustice ,instead he acted in person and was disadvantaged for lack of knowledge of legal procedures, irregularities not withstanding which included the Honourable Magistrate being consumed by emotions over my case.
xiii) That the learned trial Magistrate erred in law and fact by failing to note that if he is to serve 100 and 5 years concurrently keeping in mind he is 42 years old at the time of conviction the sentence would go over his life expectancy which is placed at 70 years. I would be 142 years if my sentence would come to an end which in reality would not be possible and would be past my life expectancy
xiv) That the learned trial Magistrate erred in law and fact by imposing on him a malicious, punitive, harsh and excessive sentence of 100 years which is a very solid reason that the appellate Court is invited to make a considerable reduction on the same. Reliance is placed on the authority of Shadrack Kipkoech Kogo versus Republic in Eldoret Criminal Appeal No.253 of 2013.
xv) That the learned trial Magistrate erred in law and fact by enforcing the mandatory minimum sentence of 100 years when she had the discretion to up hold otherwise by imposing a different appropriate or more lenient on him from the above sentence This affected me not to benefit from a lenient sentence and I am claiming the benefit of article 50 (2)(p) of COK.
xvi) That the learned trial Magistrate erred in law and fact by not acknowledge the sentencing objectives that are shifting from tormenting offenders to non-tormenting sentences which are shorter to give him a second chance on his life. The dramatic sentence is just meant to make my situation worse as I have a drinking problem on losing my wife who left me with very young children.
xvii) That the learned trial Magistrate erred in law and fact by not ordering his sentence to commence from the date of his arrest to taking into account his pretrial period in compliance with section 333 (2) of CPC.
4. I will now recount the witness testimonies before the trial Court
5. PW1 was the minor (complainant) who, due to her visibly tender age, and although she stated that she did not know her age, was taken through a voire dire examination upon which the trial Magistrate found her to be not to be intelligent enough to understand the meaning of taking an oath or the duty of telling the truth, and thus, directed that she gives unsworn evidence, which she did. In her brief testimony, she simply identified the Appellant seated in the dock as “baba” and stated that “he did bad things”.
6. PW2 was JY, who testified that on 24/03/2024, she was in the shamba when she heard a child crying and that children were calling the minor, that she then saw the minor walking on the road with her father (the Appellant), they walked past her house and went to a neighbour’s (PT) house, and that the Appellant told one C that the minor had been injured and she was to be examined. She stated that C’s child then came and called her (PW2) to carry out the examination but she asked them to instead bring the child to her, the minor’s grandfather then brought the minor and told PW2 that she had been injured by a stick. She testified that she then examined the minor who was in pain and she slept, that the following day the minor told her that she was still in pain, upon which she removed the minor’s pant and the minor disclosed to her that her father (Appellant) had inserted his “dudu” into her, and that when she examined the minor, she noted a tear from her vagina all the way to the anal region. She testified that she then took the minor to Kimani Health Centre where she was examined, after which she reported the matter to the Chief, and later took the minor to Iten County Hospital where she was taken to the theatre. She then identified the theater Form, discharge notes, Post Rape Case Form and P3 Form. She testified further that the Appellant (the minor’s father) is her in-law, and that the minor’s mother is deceased. She also stated that the minor was born on 19/06/2018, and she identified her Notification of Birth.
7. PW3 was JR, who stated that on 26/03/2024, she received a phone-call from her brother, J, informing her that PW2 had taken the minor to hospital, she phoned PW2 who informed her that the minor had been raped, and that she was bleeding from her private parts and had been taken to theater as she had developed fistula. She testified that the minor told her that her father (Appellant) had taken her from her grandmother (co-accused) and taken her to his bed and defiled her. She stated further that the Appellant had married her late sister, and that she did not have any grudge against him. In cross-examination, she stated that J is the one who brought the minor to her, that the minor was in pain and was not walking properly, and that she took her to hospital 5 days later as she was still bleeding. She also stated that the doctors confirmed that the minor had been raped.
8. PW4 was PC, who testified that on 24/03/2024, the Appellant brought the minor who was crying asking her father (Appellant) to take her to hospital. She stated that the Appellant told her that a stick had injured the minor on her private parts, and he requested PW4 to examine her but she (PW4) was afraid and asked the Appellant to take her to Mama K to examine her. She testified that the minor was then taken to Mama K, the Appellant left and that PW2 then came and told her that it was not a stick that had injured the minor. She described the Appellant as a neighbour.
9. PW5 was WK, who testified that on 23/03/2024 he found the children at a neighbour’s home, that her grand-daughter (the minor) was playing and when she saw him, she started crying and the other children told him that the minor had been injured by a stick. He testified that he then took the minor to PW2 whom she asked to examine her, and to take her to hospital, and that he later learnt that the minor had been defiled by her father, who is a neighbour and who had married his (PW5’s) late daughter. He denied having any grudge against the Appellant.
10. PW6 was KEK, who testified that on 23/03/2024 he was sleeping at home when his brother, who was drunk, woke him up with the information that the minor had been injured by a stick on her private parts. He stated that he then asked his father about the incident who told him to take the child to PW2 which he did, and PW2 confirmed that the child was injured on her private parts. He testified that he then decided to go to the minor’s grandparents’ home to inquire about the incident, but she met the minor’s grandmother (co-accused) on the way who told him that the minor had been injured on her private parts with a stick while she was climbing a fence, and she had not taken her to hospital because she did not have money.
11. PW7 was Philemon Kitony, a Clinical Officer from the Iten County Hospital. He testified that the minor, aged 5 years old, was brought to the facility on 29/03/2024 with a history of having been defiled, and that she was walking with abnormal gait. He stated that on examination, she noted that the minor’s vagina was found to be open, hymen torn, blood was oozing from her vagina, she had extensive vaginal tears at 6 O’clock extending towards the cervix, a tear on the hymen membrane and vaginal walls, and he confirmed that there was penetration, and also anal penetration as the anal muscles and anal sphincter muscles were loose. He then produced the P3 Form. He testified further that the minor was taken to the theatre, that she had a 3 cm tear at 6’Oclock on the external part of her vagina extending towards the cervix, the hymen was broken, and that the anal opening had stretched, thus indicating penetration. He stated that the injury was repaired, and he then also produced the theater notes, Post Rape Care Form, and Discharge Form and stated that the minor was admitted on 27/03/2024 and discharged on 29/03/2024. In cross-examination, he agreed that the Appellant was not examined, that a high vaginal swab test could not be conducted because the minor was bleeding, and that there was no spermatozoa.
12. PW8 was Corporal Ann Wafula, from the Kapsowar Police Station, the Investigating Officer in this case. She testified that on 28/03/2024 she was at the station when one E (presumably PW6) came to report that there was a defilement case at […….]. She stated that E told her that the victim, aged 5 years, was defiled by her father on 24/03/2024, and that the minor had been taken to Kimnai from where she had been referred to Iten Hospital. She testified that E also told her that the Appellant had colluded with his mother (co-accused) and told the minor to say that she had been injured by a stick on her private parts. She stated that she then interrogated the minor who disclosed that she was playing with her friends when her father (Appellant) took her to his house and defiled her 3 times. She testified that the Appellant was then arrested by members of the public and brought to the station, upon which she charged him with the offence. She then produced the minor’s Notification of Birth which indicated that the minor was born on 19/06/2018. In cross-examination, she stated that the Appellant disappeared after the offence. In re-examination, she clarified that the offence occurred on 21/03/2024, and not 24/03/2024. He also denied that the case was a frame up.
13. The Appellant, in his defence, testified as DW1, and gave unsworn evidence. He testified that on 21/03/2024 he was at his farm until 4:00 pm, and that when he returned home the children informed him that the minor had been injured by a stick at 8:00 am. He stated that his (Appellant’s) mother told him that she had given the minor first aid. He then denied committing the offence and stated that he always escorted the minor to school, and he had always taken care of her. He stated that he was arrested on 28/03/2024, and that he had a grudge with E (PW6) after his (Appellant’s) wife died, and that his late wife had cancer and wanted to sell land. He stated that his in-laws took the children and that E (PW6) had been threatening him.
14. The Appeal was then canvassed by way of written Submissions. The Appellant filed the Submissions dated 7/05/2025, while the Respondent (State), through Prosecution Counsel Ms. Racheal Mwangi, filed the Submissions dated 24/06/2025.
Appellant’s Submissions
15. The Appellant, in his lengthy Submissions, cited Article 49(1)(f)(i) of the Constitution, and submitted that he was arrested on 28/03/2024 and presented in Court on 2/04/2024, that there was no explanation for the delay in taking him to Court, and that this delay amounted to unconstitutional confinement. I however note that this was not one of his grounds of Appeal. He submitted further that the case lacked factual foundation as no incriminating evidence was presented linking him to the offence, that he was framed and the case made up due to an existing family misunderstanding with his in-laws. He contended that the witnesses were not credible and sincere enough to admit that they were his in-laws, and that they, instead, kept on referring to him as a neighbour. He faulted the trial Magistrate for failing to declare that the complainant was a “vulnerable witness”, and contended that the Magistrate should have appointed an intermediary to present the minor’s testimony on account of her being of tender age. He cited Section 31(1)(a)(b) of the Sexual Offences Act. He further submitted that investigations were shoddy and poorly conducted by the police, and faulted the police for relying on accounts of witness who gave hearsay evidence. He averred that case was not proved beyond reasonable doubt in accordance with the provisions of Section 107 of the Evidence Act as the Prosecution failed to prove the ingredients of the offence, and that the sharp penetration is consistent with the accident of a stick occasioning the injuries.
16. He also urged that the charge sheet was defective for duplicity as he was charged with the offence of conspiracy to defeat justice and interference of witnesses as a single count. He argued that there are 3 distinct offences under Sections 117(a)(b) and (c) of the Penal Code, respectively, and that he was charged under Section 117(a)(c) which implies that he was charged under two sub-sections. He submitted that every charge must be identified separately, and that its particulars should be provided. I, again, note that this was not one of the grounds of Appeal. On the issue of sentence, he submitted that the sentences of 100 and 5 years are very unusual, harsh and excessive considering that 5 years is maximum sentence, and 100 years is abnormal as it did not respect his right to a fair trial. He cited the case of Shadrack Kipkoech Kogo vs. Republic; Eldoret Criminal Appeal No.253 of 2013. He also contended that the trial Court did not comply with Section 333(2) of the Criminal Procedure Code as she failed to factor the period of 5 months spent by the Appellant in custody while sentencing as he was not admitted to bail/bond.
Respondent’s Submissions
17. Prosecution Counsel, on his part, cited Section 20(1) of the Sexual Offences Act on the definition of incest, and submitted that the relationship between the Appellant and the minor was established by way of the minor’s testimony that she is the Appellant’s daughter by identified him as “baba”, which description was corroborated by PW2, who testified that she saw the minor and the Appellant walking together on the date of the incident. She submitted further that PW3 confirmed that the Appellant was the minor’s father as the Appellant had married his late sister, which testimony was also corroborated by PW4, and that the Appellant also did not dispute the said father-daughter relationship. On the issue of age, Counsel submitted that PW2 testified that the minor was born on 19/06/2018, thus making her 5 years old at the time of the offence, which evidence was corroborated by PW8, the Investigating Officer, who produced the Notification of Birth indicating that the minor was born on 19/06/2018, and that therefore it was proved that the minor was below the age of 18 years. Regarding “penetration”, Counsel narrated the minor’s testimony that “baba” “did bad things” to her, and observed that the minor was aged 5 years at the time she testified, thus of tender age, and was still traumatized by the incident, and as a result, she could not express herself properly. Counsel also contended that PW2 corroborated the minor’s evidence by stating that she was on the shamba when she saw the Appellant walking with the minor to PW4's house, that PW4 confirmed that indeed the Appellant went to her home with the minor and informed her that she had been injured on her private parts. Counsel added that PW7, Dr Kitony testified that the minor was taken to lten County Hospital and upon examination, he noted blood oozing from her vagina, extensive vaginal tears at 6 o'clock extending towards the cervix, and tears on the hymen, and the doctor confirmed penetration, and this was corroborated by the P3 Form.
18. On the issue of “identification”, she submitted that the minor was able to positively identify her father (Appellant) as the person who defiled her, that PW2 also confirmed that she saw the Appellant with the minor, and PW4 stated that indeed, the Appellant went to her home with the minor and told her that the minor had been injured on her private parts by a stick. She cited the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58(KLR). Counsel denied the allegation that the trial Magistrate presumed the Appellant guilty before he was proved guilty, and maintained that the Appellant was given a fair trial in accordance with Article 50 of the Constitution. She submitted that the Appellant was presumed innocent and was notified of the charges facing him, he was also supplied with all statements and documents that he required to prepare his defence, and that during the trial, the Appellant was present and was able to cross-examine all witnesses. On the allegation that the Appellant was framed, Counsel submitted that all the witness’ were credible, independent, and corroborated each other with no contradiction, that the Appellant was given sufficient time to cross-examine the witnesses and he did not at any point ask them questions touching on his alleged “framing”. According to Counsel therefore, that allegation is an afterthought.
19. Regarding sentence, Counsel cited Section 20(1) of the Sexual Offences Act, and denied that the sentence meted out was excessive or harsh, and contended that it was within the confines of Section 20(1) which stipulates a sentence of up to life imprisonment if the victim defiled is under the age of 18 years. She observed that the minor was a 5-year-old, vulnerable child of tender years who looked upon the Appellant for care and protection, but instead, the Appellant turned on her, defiled her causing her injuries so severe that she had to undergo reconstructive surgery, and also developed a fistula. According to Counsel therefore, the sentence of 100 years was commensurate with the harm the Appellant caused to an innocent child, and that upholding the sentence will act as a deterrent for other offenders. She cited the Supreme Court case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34(KLR).
Determination
20. As a first appellate Court, I am obligated to revisit and re-evaluate the evidence afresh, assess the same and make my own conclusions bearing in mind that, unlike myself, the trial Court had the advantage of hearing and observing the demeanour of the witnesses (see Okeno vs Republic (1972) E.A 32).
21. The issues that arise for determination in this appeal are as follows;
i) Whether the Prosecution proved the charge of incest and interference with witnesses to the required standard.
ii) Whether the sentence imposed was lawful and/or excessive.
22. The offence of incest is provided for under Section 20(1) of the Sexual Offences Act as follows:
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years, provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person."
23. To prove the offence of incest therefore, the following ingredients must be met: penetration, proof that the offender is a relative of the victim, and, identification of the perpetrator. Age of the victim is also relevant in sentencing, where the victim is below 18 years old.
24. Regarding “penetration”, the minor was unable to testify conclusively, perhaps due to her age, or the trauma she was undergoing, or just “stage fright”. All she was able to do was to identify the Appellant seated in the dock whom she referred to as “baba” and whom she stated; “did bad things”. Read and considered with the rest of the testimony and evidence on record, I am convinced that “penetration” was proved by the testimony of the minor (PW1) and which was sufficiently corroborated by the medical evidence. The doctor who examined the minor and produced the P3 Form which extensively described the injuries. He testified that the minor, aged 5 years, was brought to the facility on 29/03/2024 with a history of having been defiled by her father, and she was walking with abnormal gait. He testified that upon examination, she noted that the minor’s vagina was open, hymen torn, blood was oozing from her vagina, she had extensive vaginal tears at 6 O’clock extending towards the cervix, she had tears on the hymen membrane and vaginal walls. The doctor thus confirmed that penetration occurred. He also established that there was also anal penetration as the anal and anal sphincter muscles were loose. The doctor thus concluded that the nature of the injuries was evidence of penetration.
25. On whether the Appellant is a “relative”, the minor identified the Appellant in Court and referred to him as “baba”. The rest of the Prosecution witnesses, including the Appellant’s in-laws and neighbours, also confirmed that the minor was the Appellant’s daughter. The Appellant, in his defence, did not also deny that he is the minor’s father. On the contrary, and although he did not expressly say so, his testimony alludes to that fact as being true.
26. On “identification”, as aforesaid, the minor is the Appellant’s father and was thus familiar with him. She testified that “baba” (Appellant) “did bad things”. She was unable to testify conclusively, perhaps due to her age, or the trauma she was undergoing, or just “stage fright”. She did not therefore say much but this piece of testimony, considered with that of the other witnesses leave no doubt that identification of the Appellant as the perpetrator was sufficiently established. For instance, PW2 testified that she was at her shamba when saw the Appellant and the minor walking together towards PW4’s house, with the minor crying, and that shortly thereafter, the minor was brought to her by the minor’s grandfather to examine her for what the grandfather explained as injuries suffered by the minor in her private parts when she was pierced by a stick while playing (climbing a fence). PW2 then stated that on the next day, the minor herself confined to her that the injury by a stick theory was all a lie conjured by the grandmother, as the truth is that she had in fact been defiled by her father (Appellant). PW4 confirmed that the minor had indeed initially been taken to her for examination, and it is her who advised that she be taken to PW2 for examination. PW3 testified that she is the one who took the minor to hospital 5 days after the incident, and she, too, testified that the minor confided in her that it is the Appellant who had defiled her. This was therefore a case of “recognition” rather than identification of a stranger, which evidence is more reliable and believable in “identification” (see the Court of Appeal case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR,). No reason has been given why the minor would make such a serious allegation against her own father if not well-founded.
27. The Appellant, in his defence, gave unsworn evidence and simply denied committing the act. Although he alleged existence of “bad blood” between him and his in-laws after his wife died, there was nothing before the trial Court to suggest that the in-laws had framed him over the offence. Assuming that the in-laws framed him up as alleged, did they also successfully rope in the medical staff (PW6), the police (PW8), and also the Prosecution? Nothing points to any such collusion.
28. In the circumstances, I find no reason to interfere with the conviction of the Appellant as all the elements of the offence of incest were proved beyond reasonable doubt. I am convinced that the testimony of the
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1. This Appeal arises from the conviction and sentence of the Appellant in the said criminal case in which the Appellant was charged in two Counts. In Count I, he was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act. The particulars were that on 21/03/2024 at around 1830 hours at Yemit sub-Location, [………….] village in Marakwet West Sub-County, within Elgeyo Marakwet County, he intentionally touched the vagina of BJ with his penis, who was to his knowledge, his daughter. In Count II, the Appellant was jointly charged with his mother, with conspiracy to defeat justice and interference with witnesses, contrary to Section 117(a) of the Penal Code. The particulars were that on the same date, place and time above, he jointly conspired to mislead the investigating officer to defeat the course of justice by giving false information. The Appellant’s mother pleaded guilty to Count II, and was convicted and sentenced.
2. The Appellant, on his part, pleaded not guilty in both counts, and the case thus proceeded to full trial wherein the Prosecution called 8 witnesses. After close of the Prosecution case, the trial Court found the Appellant as having a case to answer, and put him to his defence. The Appellant, in his defence, testified for himself and did not call any other witness. The trial Court then convicted the Appellant and sentenced him to serve 100 years imprisonment in Count I, and 5 years imprisonment in Count II, which sentences were ordered to run concurrently.
3. Aggrieved by the decision, the Appellant filed this Appeal on 21/08/2024 in person. The unnecessarily lengthy and verbose Petition of Appeal contains 17 repetitive grounds, which with better drafting, could have been simply condensed into 3 or 4. The same, reproduced verbatim, is as follows:
i) That the learned trial Magistrate erred in law and fact in not declaring the complainant was a vulnerable witness and assign to her an intermediary according to the law. She instead subjected her to an examination in chief and resorted to inducing the complainant with a promise that she will be offered sweets in order to implicate the Appellant this impartiality offended Article 50 (1) of COK.
ii) That the learned trial Magistrate erred in matters of law and fact by not considering all the evidence on record to reach her decision. There were clear oral evidence and circumstantial evidence such as the medical evidence that the complainant was penetrated with a sharp object which was probably from the tree she slid from while crossing over the fence. The penetration was accidental and not from his penis which in any case is a blunt object.
iii) That the Honourable Magistrate erred in matters of law and fact by not according him a fair trial by turning the first mention date into a hearing where I objected that I was not ready to proceed while I was ill- prepared to put up a defence the reason why I lost this case. This ambush contravened the constitutional safe guard of being given adequate time to prepare for a defence under article 50 (2)(c).
iv) That the Honourable Magistrate erred in matters of law and fact by misapprehending the act of administering first aid to the complainant as a form of concealing evidence of the offence to defeat justice, which on the contrary was the most sensible and appropriate action take in the circumstance was a fact the act of first aid was not done without my input and learnt about the issue when I returned home from my mother.
v) That the Honourable Magistrate erred in matters of law and fact by not ensuring the prosecution did its obligatory duty of furnishing the Appellant with statement in this case for doctor and the surgical operation treatment notes the complainant underwent this contravened his right under article 50 (2)(j).
vi) That the Honourable Magistrate erred in matters of law and fact when she committed a big mistake in listening to hearsay evidence from coached witnesses from my former in-laws who had been coached and ganged up against me for not offering support for the children (twins) who had been left behind by my late wife. I was being framed in this case.
vii) That the learned trial Magistrate erred in law and fact in not complying with section 33 of S.O.A which requires the complainant or otherwise to give direct evidence that a defilement act was done to her. The complainant didn't say much, as well as there was no corroboration to support the alleged crime. This absence of the ingredient of penetrative sex was confirmed as she could have acquitted me u/sec 215 of CPC.
viii) That the learned trial Magistrate erred in law and fact by convicting and sentencing Appellant not based on sufficient evidence to prove its case beyond reasonable doubt according to section 107 of the Evidence Act. In these instant extraneous issues were used to make a finding in my case which was the charge on alleged witness interference and my mother's charge of giving false information to police. The only mistake here was the accusation that I was behind my mother's act of cleaning the child is not factual as I became aware of the same when she asked for money to take her to hospital much later in the evening
ix) That the trial Magistrate erred in law and fact by showing biasness against the Appellant during his trial by bringing up other charges against me and my mother which offends the article 50(1) COK which requires the Court not to be partial in handling my case as a procedural safeguard to a fair hearing for the Appellant.
x) That the learned trial Magistrate erred in law and fact in not considering a balance of both aggravating and mitigation factors in his case This case sentence of 100 years was informed by aggravating circumstances as inferred by its excessiveness limiting his right to article 25 (c) of COK and the sentencing guidelines of 2023.
xi) That the learned trial Magistrate erred in law and fact by not strictly complying with section 169 of the CPC. The judgement does not meet legal requirement as there is no clarity of facts which is discernible on her reasoning making her finding not to be clear either
xii) That the learned trial Magistrate erred in law and fact by not according him a fair trial under article 50(2) (h) in failing to inform him of the right to be assigned a lawyer at state expense for he underwent a lot of injustice ,instead he acted in person and was disadvantaged for lack of knowledge of legal procedures, irregularities not withstanding which included the Honourable Magistrate being consumed by emotions over my case.
xiii) That the learned trial Magistrate erred in law and fact by failing to note that if he is to serve 100 and 5 years concurrently keeping in mind he is 42 years old at the time of conviction the sentence would go over his life expectancy which is placed at 70 years. I would be 142 years if my sentence would come to an end which in reality would not be possible and would be past my life expectancy
xiv) That the learned trial Magistrate erred in law and fact by imposing on him a malicious, punitive, harsh and excessive sentence of 100 years which is a very solid reason that the appellate Court is invited to make a considerable reduction on the same. Reliance is placed on the authority of Shadrack Kipkoech Kogo versus Republic in Eldoret Criminal Appeal No.253 of 2013.
xv) That the learned trial Magistrate erred in law and fact by enforcing the mandatory minimum sentence of 100 years when she had the discretion to up hold otherwise by imposing a different appropriate or more lenient on him from the above sentence This affected me not to benefit from a lenient sentence and I am claiming the benefit of article 50 (2)(p) of COK.
xvi) That the learned trial Magistrate erred in law and fact by not acknowledge the sentencing objectives that are shifting from tormenting offenders to non-tormenting sentences which are shorter to give him a second chance on his life. The dramatic sentence is just meant to make my situation worse as I have a drinking problem on losing my wife who left me with very young children.
xvii) That the learned trial Magistrate erred in law and fact by not ordering his sentence to commence from the date of his arrest to taking into account his pretrial period in compliance with section 333 (2) of CPC.
4. I will now recount the witness testimonies before the trial Court
5. PW1 was the minor (complainant) who, due to her visibly tender age, and although she stated that she did not know her age, was taken through a voire dire examination upon which the trial Magistrate found her to be not to be intelligent enough to understand the meaning of taking an oath or the duty of telling the truth, and thus, directed that she gives unsworn evidence, which she did. In her brief testimony, she simply identified the Appellant seated in the dock as “baba” and stated that “he did bad things”.
6. PW2 was JY, who testified that on 24/03/2024, she was in the shamba when she heard a child crying and that children were calling the minor, that she then saw the minor walking on the road with her father (the Appellant), they walked past her house and went to a neighbour’s (PT) house, and that the Appellant told one C that the minor had been injured and she was to be examined. She stated that C’s child then came and called her (PW2) to carry out the examination but she asked them to instead bring the child to her, the minor’s grandfather then brought the minor and told PW2 that she had been injured by a stick. She testified that she then examined the minor who was in pain and she slept, that the following day the minor told her that she was still in pain, upon which she removed the minor’s pant and the minor disclosed to her that her father (Appellant) had inserted his “dudu” into her, and that when she examined the minor, she noted a tear from her vagina all the way to the anal region. She testified that she then took the minor to Kimani Health Centre where she was examined, after which she reported the matter to the Chief, and later took the minor to Iten County Hospital where she was taken to the theatre. She then identified the theater Form, discharge notes, Post Rape Case Form and P3 Form. She testified further that the Appellant (the minor’s father) is her in-law, and that the minor’s mother is deceased. She also stated that the minor was born on 19/06/2018, and she identified her Notification of Birth.
7. PW3 was JR, who stated that on 26/03/2024, she received a phone-call from her brother, J, informing her that PW2 had taken the minor to hospital, she phoned PW2 who informed her that the minor had been raped, and that she was bleeding from her private parts and had been taken to theater as she had developed fistula. She testified that the minor told her that her father (Appellant) had taken her from her grandmother (co-accused) and taken her to his bed and defiled her. She stated further that the Appellant had married her late sister, and that she did not have any grudge against him. In cross-examination, she stated that J is the one who brought the minor to her, that the minor was in pain and was not walking properly, and that she took her to hospital 5 days later as she was still bleeding. She also stated that the doctors confirmed that the minor had been raped.
8. PW4 was PC, who testified that on 24/03/2024, the Appellant brought the minor who was crying asking her father (Appellant) to take her to hospital. She stated that the Appellant told her that a stick had injured the minor on her private parts, and he requested PW4 to examine her but she (PW4) was afraid and asked the Appellant to take her to Mama K to examine her. She testified that the minor was then taken to Mama K, the Appellant left and that PW2 then came and told her that it was not a stick that had injured the minor. She described the Appellant as a neighbour.
9. PW5 was WK, who testified that on 23/03/2024 he found the children at a neighbour’s home, that her grand-daughter (the minor) was playing and when she saw him, she started crying and the other children told him that the minor had been injured by a stick. He testified that he then took the minor to PW2 whom she asked to examine her, and to take her to hospital, and that he later learnt that the minor had been defiled by her father, who is a neighbour and who had married his (PW5’s) late daughter. He denied having any grudge against the Appellant.
10. PW6 was KEK, who testified that on 23/03/2024 he was sleeping at home when his brother, who was drunk, woke him up with the information that the minor had been injured by a stick on her private parts. He stated that he then asked his father about the incident who told him to take the child to PW2 which he did, and PW2 confirmed that the child was injured on her private parts. He testified that he then decided to go to the minor’s grandparents’ home to inquire about the incident, but she met the minor’s grandmother (co-accused) on the way who told him that the minor had been injured on her private parts with a stick while she was climbing a fence, and she had not taken her to hospital because she did not have money.
11. PW7 was Philemon Kitony, a Clinical Officer from the Iten County Hospital. He testified that the minor, aged 5 years old, was brought to the facility on 29/03/2024 with a history of having been defiled, and that she was walking with abnormal gait. He stated that on examination, she noted that the minor’s vagina was found to be open, hymen torn, blood was oozing from her vagina, she had extensive vaginal tears at 6 O’clock extending towards the cervix, a tear on the hymen membrane and vaginal walls, and he confirmed that there was penetration, and also anal penetration as the anal muscles and anal sphincter muscles were loose. He then produced the P3 Form. He testified further that the minor was taken to the theatre, that she had a 3 cm tear at 6’Oclock on the external part of her vagina extending towards the cervix, the hymen was broken, and that the anal opening had stretched, thus indicating penetration. He stated that the injury was repaired, and he then also produced the theater notes, Post Rape Care Form, and Discharge Form and stated that the minor was admitted on 27/03/2024 and discharged on 29/03/2024. In cross-examination, he agreed that the Appellant was not examined, that a high vaginal swab test could not be conducted because the minor was bleeding, and that there was no spermatozoa.
12. PW8 was Corporal Ann Wafula, from the Kapsowar Police Station, the Investigating Officer in this case. She testified that on 28/03/2024 she was at the station when one E (presumably PW6) came to report that there was a defilement case at […….]. She stated that E told her that the victim, aged 5 years, was defiled by her father on 24/03/2024, and that the minor had been taken to Kimnai from where she had been referred to Iten Hospital. She testified that E also told her that the Appellant had colluded with his mother (co-accused) and told the minor to say that she had been injured by a stick on her private parts. She stated that she then interrogated the minor who disclosed that she was playing with her friends when her father (Appellant) took her to his house and defiled her 3 times. She testified that the Appellant was then arrested by members of the public and brought to the station, upon which she charged him with the offence. She then produced the minor’s Notification of Birth which indicated that the minor was born on 19/06/2018. In cross-examination, she stated that the Appellant disappeared after the offence. In re-examination, she clarified that the offence occurred on 21/03/2024, and not 24/03/2024. He also denied that the case was a frame up.
13. The Appellant, in his defence, testified as DW1, and gave unsworn evidence. He testified that on 21/03/2024 he was at his farm until 4:00 pm, and that when he returned home the children informed him that the minor had been injured by a stick at 8:00 am. He stated that his (Appellant’s) mother told him that she had given the minor first aid. He then denied committing the offence and stated that he always escorted the minor to school, and he had always taken care of her. He stated that he was arrested on 28/03/2024, and that he had a grudge with E (PW6) after his (Appellant’s) wife died, and that his late wife had cancer and wanted to sell land. He stated that his in-laws took the children and that E (PW6) had been threatening him.
14. The Appeal was then canvassed by way of written Submissions. The Appellant filed the Submissions dated 7/05/2025, while the Respondent (State), through Prosecution Counsel Ms. Racheal Mwangi, filed the Submissions dated 24/06/2025.
Appellant’s Submissions
15. The Appellant, in his lengthy Submissions, cited Article 49(1)(f)(i) of the Constitution, and submitted that he was arrested on 28/03/2024 and presented in Court on 2/04/2024, that there was no explanation for the delay in taking him to Court, and that this delay amounted to unconstitutional confinement. I however note that this was not one of his grounds of Appeal. He submitted further that the case lacked factual foundation as no incriminating evidence was presented linking him to the offence, that he was framed and the case made up due to an existing family misunderstanding with his in-laws. He contended that the witnesses were not credible and sincere enough to admit that they were his in-laws, and that they, instead, kept on referring to him as a neighbour. He faulted the trial Magistrate for failing to declare that the complainant was a “vulnerable witness”, and contended that the Magistrate should have appointed an intermediary to present the minor’s testimony on account of her being of tender age. He cited Section 31(1)(a)(b) of the Sexual Offences Act. He further submitted that investigations were shoddy and poorly conducted by the police, and faulted the police for relying on accounts of witness who gave hearsay evidence. He averred that case was not proved beyond reasonable doubt in accordance with the provisions of Section 107 of the Evidence Act as the Prosecution failed to prove the ingredients of the offence, and that the sharp penetration is consistent with the accident of a stick occasioning the injuries.
16. He also urged that the charge sheet was defective for duplicity as he was charged with the offence of conspiracy to defeat justice and interference of witnesses as a single count. He argued that there are 3 distinct offences under Sections 117(a)(b) and (c) of the Penal Code, respectively, and that he was charged under Section 117(a)(c) which implies that he was charged under two sub-sections. He submitted that every charge must be identified separately, and that its particulars should be provided. I, again, note that this was not one of the grounds of Appeal. On the issue of sentence, he submitted that the sentences of 100 and 5 years are very unusual, harsh and excessive considering that 5 years is maximum sentence, and 100 years is abnormal as it did not respect his right to a fair trial. He cited the case of Shadrack Kipkoech Kogo vs. Republic; Eldoret Criminal Appeal No.253 of 2013. He also contended that the trial Court did not comply with Section 333(2) of the Criminal Procedure Code as she failed to factor the period of 5 months spent by the Appellant in custody while sentencing as he was not admitted to bail/bond.
Respondent’s Submissions
17. Prosecution Counsel, on his part, cited Section 20(1) of the Sexual Offences Act on the definition of incest, and submitted that the relationship between the Appellant and the minor was established by way of the minor’s testimony that she is the Appellant’s daughter by identified him as “baba”, which description was corroborated by PW2, who testified that she saw the minor and the Appellant walking together on the date of the incident. She submitted further that PW3 confirmed that the Appellant was the minor’s father as the Appellant had married his late sister, which testimony was also corroborated by PW4, and that the Appellant also did not dispute the said father-daughter relationship. On the issue of age, Counsel submitted that PW2 testified that the minor was born on 19/06/2018, thus making her 5 years old at the time of the offence, which evidence was corroborated by PW8, the Investigating Officer, who produced the Notification of Birth indicating that the minor was born on 19/06/2018, and that therefore it was proved that the minor was below the age of 18 years. Regarding “penetration”, Counsel narrated the minor’s testimony that “baba” “did bad things” to her, and observed that the minor was aged 5 years at the time she testified, thus of tender age, and was still traumatized by the incident, and as a result, she could not express herself properly. Counsel also contended that PW2 corroborated the minor’s evidence by stating that she was on the shamba when she saw the Appellant walking with the minor to PW4's house, that PW4 confirmed that indeed the Appellant went to her home with the minor and informed her that she had been injured on her private parts. Counsel added that PW7, Dr Kitony testified that the minor was taken to lten County Hospital and upon examination, he noted blood oozing from her vagina, extensive vaginal tears at 6 o'clock extending towards the cervix, and tears on the hymen, and the doctor confirmed penetration, and this was corroborated by the P3 Form.
18. On the issue of “identification”, she submitted that the minor was able to positively identify her father (Appellant) as the person who defiled her, that PW2 also confirmed that she saw the Appellant with the minor, and PW4 stated that indeed, the Appellant went to her home with the minor and told her that the minor had been injured on her private parts by a stick. She cited the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58(KLR). Counsel denied the allegation that the trial Magistrate presumed the Appellant guilty before he was proved guilty, and maintained that the Appellant was given a fair trial in accordance with Article 50 of the Constitution. She submitted that the Appellant was presumed innocent and was notified of the charges facing him, he was also supplied with all statements and documents that he required to prepare his defence, and that during the trial, the Appellant was present and was able to cross-examine all witnesses. On the allegation that the Appellant was framed, Counsel submitted that all the witness’ were credible, independent, and corroborated each other with no contradiction, that the Appellant was given sufficient time to cross-examine the witnesses and he did not at any point ask them questions touching on his alleged “framing”. According to Counsel therefore, that allegation is an afterthought.
19. Regarding sentence, Counsel cited Section 20(1) of the Sexual Offences Act, and denied that the sentence meted out was excessive or harsh, and contended that it was within the confines of Section 20(1) which stipulates a sentence of up to life imprisonment if the victim defiled is under the age of 18 years. She observed that the minor was a 5-year-old, vulnerable child of tender years who looked upon the Appellant for care and protection, but instead, the Appellant turned on her, defiled her causing her injuries so severe that she had to undergo reconstructive surgery, and also developed a fistula. According to Counsel therefore, the sentence of 100 years was commensurate with the harm the Appellant caused to an innocent child, and that upholding the sentence will act as a deterrent for other offenders. She cited the Supreme Court case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34(KLR).
Determination
20. As a first appellate Court, I am obligated to revisit and re-evaluate the evidence afresh, assess the same and make my own conclusions bearing in mind that, unlike myself, the trial Court had the advantage of hearing and observing the demeanour of the witnesses (see Okeno vs Republic (1972) E.A 32).
21. The issues that arise for determination in this appeal are as follows;
i) Whether the Prosecution proved the charge of incest and interference with witnesses to the required standard.
ii) Whether the sentence imposed was lawful and/or excessive.
22. The offence of incest is provided for under Section 20(1) of the Sexual Offences Act as follows:
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years, provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person."
23. To prove the offence of incest therefore, the following ingredients must be met: penetration, proof that the offender is a relative of the victim, and, identification of the perpetrator. Age of the victim is also relevant in sentencing, where the victim is below 18 years old.
24. Regarding “penetration”, the minor was unable to testify conclusively, perhaps due to her age, or the trauma she was undergoing, or just “stage fright”. All she was able to do was to identify the Appellant seated in the dock whom she referred to as “baba” and whom she stated; “did bad things”. Read and considered with the rest of the testimony and evidence on record, I am convinced that “penetration” was proved by the testimony of the minor (PW1) and which was sufficiently corroborated by the medical evidence. The doctor who examined the minor and produced the P3 Form which extensively described the injuries. He testified that the minor, aged 5 years, was brought to the facility on 29/03/2024 with a history of having been defiled by her father, and she was walking with abnormal gait. He testified that upon examination, she noted that the minor’s vagina was open, hymen torn, blood was oozing from her vagina, she had extensive vaginal tears at 6 O’clock extending towards the cervix, she had tears on the hymen membrane and vaginal walls. The doctor thus confirmed that penetration occurred. He also established that there was also anal penetration as the anal and anal sphincter muscles were loose. The doctor thus concluded that the nature of the injuries was evidence of penetration.
25. On whether the Appellant is a “relative”, the minor identified the Appellant in Court and referred to him as “baba”. The rest of the Prosecution witnesses, including the Appellant’s in-laws and neighbours, also confirmed that the minor was the Appellant’s daughter. The Appellant, in his defence, did not also deny that he is the minor’s father. On the contrary, and although he did not expressly say so, his testimony alludes to that fact as being true.
26. On “identification”, as aforesaid, the minor is the Appellant’s father and was thus familiar with him. She testified that “baba” (Appellant) “did bad things”. She was unable to testify conclusively, perhaps due to her age, or the trauma she was undergoing, or just “stage fright”. She did not therefore say much but this piece of testimony, considered with that of the other witnesses leave no doubt that identification of the Appellant as the perpetrator was sufficiently established. For instance, PW2 testified that she was at her shamba when saw the Appellant and the minor walking together towards PW4’s house, with the minor crying, and that shortly thereafter, the minor was brought to her by the minor’s grandfather to examine her for what the grandfather explained as injuries suffered by the minor in her private parts when she was pierced by a stick while playing (climbing a fence). PW2 then stated that on the next day, the minor herself confined to her that the injury by a stick theory was all a lie conjured by the grandmother, as the truth is that she had in fact been defiled by her father (Appellant). PW4 confirmed that the minor had indeed initially been taken to her for examination, and it is her who advised that she be taken to PW2 for examination. PW3 testified that she is the one who took the minor to hospital 5 days after the incident, and she, too, testified that the minor confided in her that it is the Appellant who had defiled her. This was therefore a case of “recognition” rather than identification of a stranger, which evidence is more reliable and believable in “identification” (see the Court of Appeal case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR,). No reason has been given why the minor would make such a serious allegation against her own father if not well-founded.
27. The Appellant, in his defence, gave unsworn evidence and simply denied committing the act. Although he alleged existence of “bad blood” between him and his in-laws after his wife died, there was nothing before the trial Court to suggest that the in-laws had framed him over the offence. Assuming that the in-laws framed him up as alleged, did they also successfully rope in the medical staff (PW6), the police (PW8), and also the Prosecution? Nothing points to any such collusion.
28. In the circumstances, I find no reason to interfere with the conviction of the Appellant as all the elements of the offence of incest were proved beyond reasonable doubt. I am convinced that the testimony of the
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