1. The Appellant JOHN MUTUKU KIKUTO has filed this appeal challenging his Conviction and Sentence by the Magistrates Court sitting in Nyeri.
2. The Appellant had been arraigned before the Lower Court on 28 th July 2021 facing a charge of Incest. The Prosecution later on 25 th August 2021 presented a consolidated charge sheet in which the Appellant faced three (3) counts of INCEST CONTRARY TO SECTION 20(1) OF THE SEXUAL OFFENCES ACT 2006 . The Appellant also faced three (3) alternative counts of COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11(1) OF THE SEXUAL OFFENCES ACT, 2006 .
3. The trial commenced on 6 th December 2022 and the prosecution called
a total of six (6) witnesses. PW1 R.N.M told the Court that she was a casual labourer who resided in Lamuria. She stated that on 20 th January 2020 she travelled to attend a funeral leaving her children with the Appellant who was her husband and returned home after three (3) days to find nothing amiss.
4. PW1 went on to state that on 10 th May 2021 , she held a function to celebrate the initiation of her son. Her daughter J.W.M complained that her leg was aching. PW1 took the child to hospital where she was examined and found to be pregnant. The child then revealed that her father (the Appellant) had been defiling both her and her sister T.W.M . PW1 then went home and questioned T.W.M . who revealed that the Appellant had defiled her once.
5. The next day PW1 went to the children’s school and requested the head teacher to talk to her daughters. Upon being questioned by their teacher the two girls repeated the same allegations. PW1 then reported the matter to the sub-chief who took them to Lamuria Police Station. The children were taken to hospital the next day for medical examination.
6. Later another child a PW1 called M.W.M revealed that her father had defiled her also.
7. PW2 J. W.N told the court that she was at the time residing in a
Childrens Home. She told the court that the Appellant was her father. PW2 stated that she was a pupil in class 8.
8. PW2 stated that in January 2020 the Appellant who was her father told her to accompany him to the forest to get charcoal. While there the appellant ordered the child to remove her clothes. He then laid her on the ground and defiled her. PW2 even went on to state that on two other occasions when they had gone to the forest to get charcoal the Appellant defiled her and stated that the appellant also defiled her once in her mother’s house.
9. PW2 told the court that on the day her brother was going for initiation the Appellant accosted her while she was cooking. He took her to her mother’s house and defiled her severally. PW2 began to experience stomach pains and was taken to hospital. Upon examination, the child was found to be pregnant. Her mother reported the matter to the chief and then to the police.
10. PW3 T.W.M told the court that she is a Grade 5 pupil and was at the
time of the trial residing at a childrens Home. PW2 testified that from
January 2020 the Appellant who was her father defiled her on several
occasions. She stated that they had gone to Solio forest to fetch
firewood when the Appellant ordered her to lie down. He removed her clothes and defiled her while covering the child’s mouth to prevent her from shouting for help.
11. PW2 stated that on another occasion the Appellant led her to a house
nearby. He told her to lie down and again defiled her. This time the child’s sister came and found the Appellant lying on top of PW3 .
12. PW3 testified that on yet another occasion she had gone to fetch
water and found the Appellant mending his bicycle. The Appellant defiled her again. PW3 stated that her elder sister PW2 began to complain of stomach pains and was vomiting. PW2 was taken to hospital where it was discovered that she was pregnant.
13. PW4 M.W.M is another daughter of the Appellant told the court that
she was a Grade Five pupil. The child stated that sometime in April 2021 she went with her father to buy flour. The Appellant then led her to the dam. He ordered her to remove her clothes but the child refused. The Appellant then forcibly undressed the child and defiled her.
14. PW5 Doctor WILLIAM MURIUKI is a medic who at the material
time was attached to Nyeri PGH. He confirmed to the court that
PW2 , PW3 and PW4 were all brought to their medical facility for examination. PW5 produced the P3 forms and PRC forms in respect of all three girls.
15. With respect to PW2 the doctor confirms that upon examination the
child tested positive for pregnancy. In respect of all three girls their hymens were found to be broken.
16. PW6 PC BERNARD KARIUKI was the investigating officer. He
stated that on 9 th May 2022 he escorted PW2 and her baby to the Government chemist in Nairobi where samples were removed for DNA testing and comparison with samples extracted from the Appellant.
17. Pw6 produced as exhibits the dedication certificates for J.W.M Pexb
4 , M.W.M Pexb 5 issued by PEFA Church . He also produced the
exhibit Memo form Pexb 6 as well as the report from the Government Chemist dated 24 th May 2022 (Pexb 7) .
18. At the close of the prosecution case the Appellant was found to have
a case to answer and was placed on his defence. The appellant gave an unsworn defence in which he denied all three counts of Incest. The Appellant told the court that he was a ‘ step-father’ of the three girls
as their mother came into the marriage with five (5) children.
19. On 4 th July 2023 , Hon. M. LUBIA delivered her judgment in which
she convicted the Appellant on three counts of Defilement contrary to section 8 (1) of the Sexual Offences Act . Following his conviction the Appellant was allowed an opportunity to mitigate. He was later sentenced as follows:
(i) Count No. 1 - To serve twenty (20) years imprisonment
(ii) Count No. 2 - To serve twenty (20) years imprisonment
(iii) Count No. 3 - To serve fifteen (15) years imprisonment.
20. The trial court directed that the sentences would be served
concurrently.
21. Being aggrieved by his conviction and sentence the Appellant filed this
appeal which is premised upon the following grounds:-
“1. THAT , the trial magistrate erred both in law and fact when failing to consider that the prosecution did not prove the case beyond reasonable doubt.
2. THAT , the trial magistrate erred in law and fact by failing to consider that prosecution tendered collaboration and inconsistences evidence.
3. THAT , the trial magistrate erred in law and facts by
failing to consider that this was just framed up by the pw1’s mother, she was my girlfriend long time ago, we had differences which leads to frame this case against me.
4. THAT , the trial magistrate erred in both matters of law and fact when she failed to consider that the elements of the offence charged was not proved to reasonable doubt.
5. THAT , the trial magistrate erred in law and fact when she rejected my plausible evidence without cogent reason to do so.
ANALYSIS AND DETERMINATION
22. I have carefully considered the appeal before this court, the record
of the trial before the Lower Court as well as the written submissions filed by both parties.
23. This is a first appeal in which the duty of the Court is to re-examine
and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of OKENO -VS- REPUBLIC [1972] EA 32 the court set out the duties of the
appellate court as follows:-
“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 Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding 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] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174).
24. Similarly in the case of DAVID NJUGUNA WAIRIMU -vs-
REPUBLIC [2010] eKLR the Court of Appeal stated as follows:-
“The duty of the first appellate court is to analyse and
re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
25. At the outset I wish to commend the trial court for according the Appellant his fair trial rights as guaranteed by Article 25 (c) of the Constitution of Kenya 2010 . The trial court also accorded to the Appellant his rights as guaranteed to him by Article 50 (2) (b) (g ) and (h) of the same constitution.
26. The said provisions of the constitution provide as follows;-
“(2) Every accused person has the right to a fair trial
which includes the right -
(a) ………………….
(b) to be informed of the charges, with sufficient detail to
answer it.
(g) to choose and be represented by an advocate, and to be informed of this right promptly.
(h) to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result and to be informed of this right promptly.
27. Vide a letter dated 3 rd November 2021 Hon. Andayi , Chief Magistrate (as he then was) wrote to the Director National Legal Aid Services requesting that an advocate be engaged to provide legal services for the Appellant. This was done. At the initial stages of the trial Mr. Gori Advocate represented the Appellant. Thereafter a Ms. Kibaara Advocate took over as defence Counsel and represented the appellant until the conclusion of the trial. Therefore I am satisfied that the learned trial magistrate took the precaution of complying with the law particularly Article 50 .
28. The Appellant was charged with the offence of Incest. The offence
of Incest is defined in Section 20 of the Sexual Offences Act as follows:-
“20(1) 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, grand-daughter, 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.”
29. In this case the three complainants stated that the appellant was their father and indeed they referred to him as ‘ Baba’ But upon closer scrutiny of the facts it became clear that the three were not the biological daughters of the appellant. The Appellant denied that he was the biological father of the three girls. In his defence the Appellants stated that “ I have no relations whatsoever with the three victims. I am like their step-father .” The Appellant stated that the children’s mother came into the marriage with five (5) children. PW1 the children’s mother told the court that she was initially married to the Appellant but then left him for another man. When that husband passed away PW1 returned to live with the Appellant as man and wife. PW1 told the court that PW2 and PW3 were the daughters of her deceased husband whilst the youngest child PW4 was the biological daughter of the Appellant.
30. Section 20(1) does not make any mention of step-children. Thus PW2 and PW3 would not be covered under that provision. There is no evidence to prove that the Appellant was the biological father of PW4 M.W.M . No birth certificate or birth notification for PW4 was produced in court. The certificate of Dedication Pexb 5 does not indicate the name of the child’s father. In the absence of concrete proof of paternity the charge of Incest in respect of PW4 cannot stand.
31. I find and hold that in the absence of concrete and reliable evidence of paternity the charge of Incest against the Appellant could not stand. Accordingly I do agree with the decision of the learned trial magistrate to acquit the appellant on all three counts of incest.
32. However that is not the end of the matter. Section 179 of the Criminal Procedure Code Cap 75 Laws of Kenya provides that:-
“179(1) when a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.
(3) With the above provision in mind I will proceed to analyze the evidence on record proved the alternative charges of……………..
33. The three complainants all testified that the Appellant defiled them at various different times. PW2 stated that the Appellant defiled her several times. She later felt sick and her mother took her to hospital where she was found to be pregnant. Obviously pregnancy can only arise out of an act of penetration. The trial magistrate noted that PW2 appeared in court holding a baby who she was nursing. The child told the court that her baby was born on 8 th November 2021 .
34. PW2 J.W.M told the court that the Appellant defiled her on
several occasions under the pretext of taking the child to look for firewood in the forest. In her evidence in chief PW2 stated as follows:-
“He [the Appellant] told me to accompany him to get charcoal in the forest. When we got to the charcoal, on our way back we crossed the river called Ngaringeru. He held me. He told me to remove my clothes or he would remove them for me. He removed my clothes and laid me on the ground. He then defiled me. He inserted his thing into mine. The thing used to urinate, he inserted his into mine. He then told me to go home and not to tell anyone.”
35. PW3 also told the court that the Appellant ordered her to follow him to Solio Forest to collect firewood and that is where he defiled her. PW3 in her evidence stated that
“Our dad told me to follow him to fetch firewood in Solio Forest. We crossed the river it is in the forest we went for a long time. I asked where we were going he told me to follow him. We got somewhere and he told me to lie down. I couldn’t understand what was happening and so I refused. He forced me I tried to scream and he muffled my mouth he then fetched a stick and wanted to beat me. I pleaded with him not to do so. He removed all my clothing, he removed his penis and inserted it into the private part where I urinate. He told me that if I told anyone he would kill me……”
36. PW3 went on to narrate how three (3) days later the appellant led her to a nearby house where he again forcibly defiled her. She stated that her younger sister came in and found the appellant lying on top of her. That yet a third time the appellant took PW3 to her mother’s bed
and defiled her there.
37. PW4 the youngest child stated that the Appellant led her to a dam. There he told her to lie down and remove her clothes. PW4 refused. The Appellant then removed the child’s clothes and defiled her. PW4 stated that
“He [the Appellant] told me to sit down and remove my clothes. I refused. I was wearing stockings and a dress. He removed my stockings and panty. He removed his trouser and underwear. He lied [SIC] on my front. He inserted his thing into mine I use mine to urinate. When he finished there was something coming from me that looked like water. He told me to use my handkerchief to wipe it….”
38. All the three minors gave a clear and cogent evidence which proved that penetration occurred. They all remained unshaken under cross-examination by defence counsel.
39. PW4 who was a young girl and who lacked the vocabulary to describe the products of sexual activity stated that after the defilement something like water came out of her private parts. The child was obviously referring to semen.
40. There would be no reason for anyone of the complainants to claim that they had been defiled if this did not occur. The detail provided by each complainant in their evidence persuades me that they were telling the truth - they could not have fabricated stories in such detail.
41. The fact that penetration occurred was corroborated by the evidence of PW5 Doctor William Muriuki who produced the medical records in respect of each child. In the case of PW2 her P3 form Pexb 1 (a) dated 21 st June 2021 indicated that upon examination, she was found to have an old broken hymen and curdy white discharge. The PRC form Pexb 1 confirmed these findings.
42. In respect of PW3 J.M.M her P3 form dated 21 st June 2021 was produced as an exhibit Pexb 2(a) . The medical findings were that she had an old broken hymen. The PRC form Pexb 2 confirmed this finding.
43. Finally with respect to PW4 M.W.M her P3 form dated 16 th July 2021 indicated that she had an old broken hymen which was confirmed by the PRC form Pexb 2 . In the case of each of the three children their evidence was corroborated through medical examination.
44. Finally in the case of PW2 upon examination she was found to be pregnant. The minor eventually delivered a baby on 8 th November 2021 . Indeed the trial court noted that when PW2 appeared in court she was carrying a baby aged about one (1) year old.
45. PW6 told the court that he escorted PW2 and her baby to the Government Chemist for extraction of DNA samples to be compared with samples which had been taken from the Appellant. The Forensic report dated 24 th May 2022 was produced as an exhibit Pexb 7 . Defence Counsel did not object to production of the report by the officer. The report’s conclusion was that there was a 99.99% probability that the Appellant was the biological father of the child born by PW2 . This is medical expert evidence. The same was not controverted. The fact that the Appellant fathered the child of PW1 is conclusive proof that it was he who defiled the child. From the above I am satisfied that indeed penetration did occur.
46. An essential element of both the main charge of Incest and the alternative charge is that the victim must be shown to have been a child i.e aged under eighteen (18) years old at the time of the offence.
47. PW1 told the court that at the time of the offence she was aged seventeen (17) years . PW3 stated that she was aged fifteen (15) years at the material time and PW4 says she was aged thirteen (13) years at the time. PW1 confirmed to the court that at the time of the offence her daughters were aged 15 years, 13 years and 11 years. It is noteworthy that the trial magistrate proceeded to conduct a Voire dire examination on all three children. This means that the court itself observed that all the complainants were minors. No birth certificates were produced to prove the age of the minors. Does this mean that their ages were not sufficiently proved. I think not.
48. Rule 4 of the Sexual Offences Rules provides that:-
“When determining the age of a person, eh court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document .”
[Own emphasis]
49. In the case of EDWIN NYAMBOGO ONSONGO -VS- REPUBLIC [2016] eKLR the Court stated thus
“…………………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 documents, 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. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be
credible and valuable .” [Own emphasis]
50. PW6 produced the dedication cards for both PW3 and PW4 issued by PEFA church. The dedication card for PW2 indicates that she was born on 25 th June 2005 Pexb 4 whilst the dedication card for PW4 Pexb 5 indicates that the child was born on 23 rd September 2009 . The said dedication cards in my view provide proof of the age of the minors.
51. The final element to be proved is the identity of the perpetrator. All the three complainants testify that it was the Appellant who defiled them. The Appellant was a person who was very well known to each of the three girls as he was their step-father. The minors lived with the Appellant and even referred to him as their father. Thus there is clear evidence of identification by way of recognition. In the case of ANJONONI & 4 OTHERS -VS- REPUBLIC [1980] KLR the court observed as
“…………recognition of an assailant is more satisfactory
more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”
52. From the narration of the minors the Appellant defiled each of them several times. Some of the incidences occurred in the daytime. The minors spent time in the company of the Appellant. They therefore had ample time and opportunity to see him well.
53. The Appellant’s defence amounted to a bare denial in which he conceded to the fact that he lived with the three minors and their mother. The defence did not controvert the minors’ evidence on identification. If anything the Appellant was confirmed that the children knew him well.
54. In his grounds of Appeal the appellant claimed that the charges had been framed against him by the childrens mother PW1 due to a grudge she had against him. No evidence was adduced by the Appellant to prove the existence of said grudge. There was no allegation that the children themselves bore any grudge against the appellant which would cause all three to frame him. Lastly even if the mother wanted to frame the appellant no explanation has been given of why the medical evidence corroborates the testimony of the three minors. I find no merit in this claim and the same is dismissed. I am satisfied that there had been proper and reliable identification of the
Appellant as the man who defiled the two girls.
55. As stated earlier due to lack of evidence to prove that the Appellant was the biological father of the three complainants the main charges of Incest cannot stand. However from my analysis of the evidence I am more than satisfied that the three alternative charges of Committing an Indecent Act with a child were proved satisfactorily.
56. In her judgment the trial magistrate relied on Section 179 of the Criminal Procedure Code to convict the Appellant on the three counts of Defilement. Section 179 refers to the conviction of an accused on a lessor or minor offence. I do not think that the offence of Defilement can be said to be a lesser charge as compared with the charge of Incest. In my view the two offences are at par. There was no need for the trial magistrate to refer to Section 179 when the Appellant already faced alternative charges which were lesser charges than the main charges.
57. Section 179 only permits a court to convict on a minor or lesser cognate offence. In the case of KALU -VS- REPUBLIC] 2010] eKLR it was observed that:-
“With the greatest respect to the learned Judge there is no law which would authorize a judge on appeal to convict a person with an offence with which that person was never charged. All the provisions of the Criminal Procedure Code which are under the heading ‘Convictions for offense other than those charged and beginning with Section 179 upto Section 190 deal with situations in which a court is entitled to convict on a minor and cognate offence where a person is charged with a more serious offence…….”
58. By no stretch of imagination can defilement be said to be a lesser offence than Incest. Both are very serious offences. They are each unique and distinct offences with different ingredients. Incest requires proof of kinship whilst defilement requires proof of age. The two offences are not cognate. Proof of incest does not establish Defilement, just as proof Defilement does not establish Incest.
59. Section 179 may only be properly invoked where the ingredients of the minor offence are included in the offence charged.
60. Therefore I fault the decision of the trial court to return convictions on
charges of Defilement. She ought to have convicted the Appellant on the alternative charges which he faced. In the circumstances I do not set aside the conviction of the Appellant one charge of Defilement contrary to Section 8(1) as ready with Section 8(3) of the Sexual Offences Act . Similarly the conviction of the Appellant on two (2) charges of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act are hereby set aside.
61. In place of the above convictions I substitute a conviction of the Appellant on the three (3) alternative counts of ‘ Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act .
62. Following his conviction the Appellant was allowed an opportunity to mitigate. The pre-sentence report was also filed in court. Section 11(1) provides that
“11(1) Any person who commits an indecent act with
a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to Imprisonment for a term of not less than ten years [Own emphasis]
63. Section 11(1) provides for a minimum mandatory sentence upon conviction. The constitutionality of the minimum mandatory sentences was confirmed by the Supreme Court in the case of REPUBLIC -VS- JOSHUA GICHUKI MWANGI [2023] eKLR .
64. The Appellant committed each offence separately and indecently assaulted each child on their own. The acts were not part of the same transaction. Each constituted a separate offence involving different minors. In that regard each offence will attract the sentence provided for by law. The heinousness of the offences committed by the Appellant cannot be over emphasized. The Appellant was a person who stood in loco parents to the three complainants. They all referred to him as ‘ baba’ . The actions of the Appellant destroyed the innocence of the minors and condemned one of them to bear a child at a very young age. The children ran away from home and had to take refuge in a children’s home. Their lives have been destroyed forever. The Appellant does not deserve any mercy.
65. I therefore set aside the sentences imposed by the trial court and in their place sentence the Appellant as follows;-
- On each of the three (3) alternative counts the Appellant
will serve ten (10) years imprisonment . The sentences to be served consecutively . It is so ordered.
Dated in Nyeri this 22 nd day of May, 2026.
…………………………
MAUREEN A. ODERO
JUDGE
HIGH COURT CRIMINAL APPEAL CASE NO. E087 OF 2024 JUDGEMENT Page 26 of 26
2. The Appellant had been arraigned before the Lower Court on 28 th July 2021 facing a charge of Incest. The Prosecution later on 25 th August 2021 presented a consolidated charge sheet in which the Appellant faced three (3) counts of INCEST CONTRARY TO SECTION 20(1) OF THE SEXUAL OFFENCES ACT 2006 . The Appellant also faced three (3) alternative counts of COMMITTING AN INDECENT ACT WITH A CHILD CONTRARY TO SECTION 11(1) OF THE SEXUAL OFFENCES ACT, 2006 .
3. The trial commenced on 6 th December 2022 and the prosecution called
a total of six (6) witnesses. PW1 R.N.M told the Court that she was a casual labourer who resided in Lamuria. She stated that on 20 th January 2020 she travelled to attend a funeral leaving her children with the Appellant who was her husband and returned home after three (3) days to find nothing amiss.
4. PW1 went on to state that on 10 th May 2021 , she held a function to celebrate the initiation of her son. Her daughter J.W.M complained that her leg was aching. PW1 took the child to hospital where she was examined and found to be pregnant. The child then revealed that her father (the Appellant) had been defiling both her and her sister T.W.M . PW1 then went home and questioned T.W.M . who revealed that the Appellant had defiled her once.
5. The next day PW1 went to the children’s school and requested the head teacher to talk to her daughters. Upon being questioned by their teacher the two girls repeated the same allegations. PW1 then reported the matter to the sub-chief who took them to Lamuria Police Station. The children were taken to hospital the next day for medical examination.
6. Later another child a PW1 called M.W.M revealed that her father had defiled her also.
7. PW2 J. W.N told the court that she was at the time residing in a
Childrens Home. She told the court that the Appellant was her father. PW2 stated that she was a pupil in class 8.
8. PW2 stated that in January 2020 the Appellant who was her father told her to accompany him to the forest to get charcoal. While there the appellant ordered the child to remove her clothes. He then laid her on the ground and defiled her. PW2 even went on to state that on two other occasions when they had gone to the forest to get charcoal the Appellant defiled her and stated that the appellant also defiled her once in her mother’s house.
9. PW2 told the court that on the day her brother was going for initiation the Appellant accosted her while she was cooking. He took her to her mother’s house and defiled her severally. PW2 began to experience stomach pains and was taken to hospital. Upon examination, the child was found to be pregnant. Her mother reported the matter to the chief and then to the police.
10. PW3 T.W.M told the court that she is a Grade 5 pupil and was at the
time of the trial residing at a childrens Home. PW2 testified that from
January 2020 the Appellant who was her father defiled her on several
occasions. She stated that they had gone to Solio forest to fetch
firewood when the Appellant ordered her to lie down. He removed her clothes and defiled her while covering the child’s mouth to prevent her from shouting for help.
11. PW2 stated that on another occasion the Appellant led her to a house
nearby. He told her to lie down and again defiled her. This time the child’s sister came and found the Appellant lying on top of PW3 .
12. PW3 testified that on yet another occasion she had gone to fetch
water and found the Appellant mending his bicycle. The Appellant defiled her again. PW3 stated that her elder sister PW2 began to complain of stomach pains and was vomiting. PW2 was taken to hospital where it was discovered that she was pregnant.
13. PW4 M.W.M is another daughter of the Appellant told the court that
she was a Grade Five pupil. The child stated that sometime in April 2021 she went with her father to buy flour. The Appellant then led her to the dam. He ordered her to remove her clothes but the child refused. The Appellant then forcibly undressed the child and defiled her.
14. PW5 Doctor WILLIAM MURIUKI is a medic who at the material
time was attached to Nyeri PGH. He confirmed to the court that
PW2 , PW3 and PW4 were all brought to their medical facility for examination. PW5 produced the P3 forms and PRC forms in respect of all three girls.
15. With respect to PW2 the doctor confirms that upon examination the
child tested positive for pregnancy. In respect of all three girls their hymens were found to be broken.
16. PW6 PC BERNARD KARIUKI was the investigating officer. He
stated that on 9 th May 2022 he escorted PW2 and her baby to the Government chemist in Nairobi where samples were removed for DNA testing and comparison with samples extracted from the Appellant.
17. Pw6 produced as exhibits the dedication certificates for J.W.M Pexb
4 , M.W.M Pexb 5 issued by PEFA Church . He also produced the
exhibit Memo form Pexb 6 as well as the report from the Government Chemist dated 24 th May 2022 (Pexb 7) .
18. At the close of the prosecution case the Appellant was found to have
a case to answer and was placed on his defence. The appellant gave an unsworn defence in which he denied all three counts of Incest. The Appellant told the court that he was a ‘ step-father’ of the three girls
as their mother came into the marriage with five (5) children.
19. On 4 th July 2023 , Hon. M. LUBIA delivered her judgment in which
she convicted the Appellant on three counts of Defilement contrary to section 8 (1) of the Sexual Offences Act . Following his conviction the Appellant was allowed an opportunity to mitigate. He was later sentenced as follows:
(i) Count No. 1 - To serve twenty (20) years imprisonment
(ii) Count No. 2 - To serve twenty (20) years imprisonment
(iii) Count No. 3 - To serve fifteen (15) years imprisonment.
20. The trial court directed that the sentences would be served
concurrently.
21. Being aggrieved by his conviction and sentence the Appellant filed this
appeal which is premised upon the following grounds:-
“1. THAT , the trial magistrate erred both in law and fact when failing to consider that the prosecution did not prove the case beyond reasonable doubt.
2. THAT , the trial magistrate erred in law and fact by failing to consider that prosecution tendered collaboration and inconsistences evidence.
3. THAT , the trial magistrate erred in law and facts by
failing to consider that this was just framed up by the pw1’s mother, she was my girlfriend long time ago, we had differences which leads to frame this case against me.
4. THAT , the trial magistrate erred in both matters of law and fact when she failed to consider that the elements of the offence charged was not proved to reasonable doubt.
5. THAT , the trial magistrate erred in law and fact when she rejected my plausible evidence without cogent reason to do so.
ANALYSIS AND DETERMINATION
22. I have carefully considered the appeal before this court, the record
of the trial before the Lower Court as well as the written submissions filed by both parties.
23. This is a first appeal in which the duty of the Court is to re-examine
and re-analyse the evidence adduced before the lower court and to draw its own conclusions on the same. In the case of OKENO -VS- REPUBLIC [1972] EA 32 the court set out the duties of the
appellate court as follows:-
“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 Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to support the lower court’s finding 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] EA 424.” (See also Kiilu & Another v Republic [2005] KLR 174).
24. Similarly in the case of DAVID NJUGUNA WAIRIMU -vs-
REPUBLIC [2010] eKLR the Court of Appeal stated as follows:-
“The duty of the first appellate court is to analyse and
re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
25. At the outset I wish to commend the trial court for according the Appellant his fair trial rights as guaranteed by Article 25 (c) of the Constitution of Kenya 2010 . The trial court also accorded to the Appellant his rights as guaranteed to him by Article 50 (2) (b) (g ) and (h) of the same constitution.
26. The said provisions of the constitution provide as follows;-
“(2) Every accused person has the right to a fair trial
which includes the right -
(a) ………………….
(b) to be informed of the charges, with sufficient detail to
answer it.
(g) to choose and be represented by an advocate, and to be informed of this right promptly.
(h) to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result and to be informed of this right promptly.
27. Vide a letter dated 3 rd November 2021 Hon. Andayi , Chief Magistrate (as he then was) wrote to the Director National Legal Aid Services requesting that an advocate be engaged to provide legal services for the Appellant. This was done. At the initial stages of the trial Mr. Gori Advocate represented the Appellant. Thereafter a Ms. Kibaara Advocate took over as defence Counsel and represented the appellant until the conclusion of the trial. Therefore I am satisfied that the learned trial magistrate took the precaution of complying with the law particularly Article 50 .
28. The Appellant was charged with the offence of Incest. The offence
of Incest is defined in Section 20 of the Sexual Offences Act as follows:-
“20(1) 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, grand-daughter, 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.”
29. In this case the three complainants stated that the appellant was their father and indeed they referred to him as ‘ Baba’ But upon closer scrutiny of the facts it became clear that the three were not the biological daughters of the appellant. The Appellant denied that he was the biological father of the three girls. In his defence the Appellants stated that “ I have no relations whatsoever with the three victims. I am like their step-father .” The Appellant stated that the children’s mother came into the marriage with five (5) children. PW1 the children’s mother told the court that she was initially married to the Appellant but then left him for another man. When that husband passed away PW1 returned to live with the Appellant as man and wife. PW1 told the court that PW2 and PW3 were the daughters of her deceased husband whilst the youngest child PW4 was the biological daughter of the Appellant.
30. Section 20(1) does not make any mention of step-children. Thus PW2 and PW3 would not be covered under that provision. There is no evidence to prove that the Appellant was the biological father of PW4 M.W.M . No birth certificate or birth notification for PW4 was produced in court. The certificate of Dedication Pexb 5 does not indicate the name of the child’s father. In the absence of concrete proof of paternity the charge of Incest in respect of PW4 cannot stand.
31. I find and hold that in the absence of concrete and reliable evidence of paternity the charge of Incest against the Appellant could not stand. Accordingly I do agree with the decision of the learned trial magistrate to acquit the appellant on all three counts of incest.
32. However that is not the end of the matter. Section 179 of the Criminal Procedure Code Cap 75 Laws of Kenya provides that:-
“179(1) when a person is charged with an offence consisting of several particulars, a combination of some only of which constitute a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.
(3) With the above provision in mind I will proceed to analyze the evidence on record proved the alternative charges of……………..
33. The three complainants all testified that the Appellant defiled them at various different times. PW2 stated that the Appellant defiled her several times. She later felt sick and her mother took her to hospital where she was found to be pregnant. Obviously pregnancy can only arise out of an act of penetration. The trial magistrate noted that PW2 appeared in court holding a baby who she was nursing. The child told the court that her baby was born on 8 th November 2021 .
34. PW2 J.W.M told the court that the Appellant defiled her on
several occasions under the pretext of taking the child to look for firewood in the forest. In her evidence in chief PW2 stated as follows:-
“He [the Appellant] told me to accompany him to get charcoal in the forest. When we got to the charcoal, on our way back we crossed the river called Ngaringeru. He held me. He told me to remove my clothes or he would remove them for me. He removed my clothes and laid me on the ground. He then defiled me. He inserted his thing into mine. The thing used to urinate, he inserted his into mine. He then told me to go home and not to tell anyone.”
35. PW3 also told the court that the Appellant ordered her to follow him to Solio Forest to collect firewood and that is where he defiled her. PW3 in her evidence stated that
“Our dad told me to follow him to fetch firewood in Solio Forest. We crossed the river it is in the forest we went for a long time. I asked where we were going he told me to follow him. We got somewhere and he told me to lie down. I couldn’t understand what was happening and so I refused. He forced me I tried to scream and he muffled my mouth he then fetched a stick and wanted to beat me. I pleaded with him not to do so. He removed all my clothing, he removed his penis and inserted it into the private part where I urinate. He told me that if I told anyone he would kill me……”
36. PW3 went on to narrate how three (3) days later the appellant led her to a nearby house where he again forcibly defiled her. She stated that her younger sister came in and found the appellant lying on top of her. That yet a third time the appellant took PW3 to her mother’s bed
and defiled her there.
37. PW4 the youngest child stated that the Appellant led her to a dam. There he told her to lie down and remove her clothes. PW4 refused. The Appellant then removed the child’s clothes and defiled her. PW4 stated that
“He [the Appellant] told me to sit down and remove my clothes. I refused. I was wearing stockings and a dress. He removed my stockings and panty. He removed his trouser and underwear. He lied [SIC] on my front. He inserted his thing into mine I use mine to urinate. When he finished there was something coming from me that looked like water. He told me to use my handkerchief to wipe it….”
38. All the three minors gave a clear and cogent evidence which proved that penetration occurred. They all remained unshaken under cross-examination by defence counsel.
39. PW4 who was a young girl and who lacked the vocabulary to describe the products of sexual activity stated that after the defilement something like water came out of her private parts. The child was obviously referring to semen.
40. There would be no reason for anyone of the complainants to claim that they had been defiled if this did not occur. The detail provided by each complainant in their evidence persuades me that they were telling the truth - they could not have fabricated stories in such detail.
41. The fact that penetration occurred was corroborated by the evidence of PW5 Doctor William Muriuki who produced the medical records in respect of each child. In the case of PW2 her P3 form Pexb 1 (a) dated 21 st June 2021 indicated that upon examination, she was found to have an old broken hymen and curdy white discharge. The PRC form Pexb 1 confirmed these findings.
42. In respect of PW3 J.M.M her P3 form dated 21 st June 2021 was produced as an exhibit Pexb 2(a) . The medical findings were that she had an old broken hymen. The PRC form Pexb 2 confirmed this finding.
43. Finally with respect to PW4 M.W.M her P3 form dated 16 th July 2021 indicated that she had an old broken hymen which was confirmed by the PRC form Pexb 2 . In the case of each of the three children their evidence was corroborated through medical examination.
44. Finally in the case of PW2 upon examination she was found to be pregnant. The minor eventually delivered a baby on 8 th November 2021 . Indeed the trial court noted that when PW2 appeared in court she was carrying a baby aged about one (1) year old.
45. PW6 told the court that he escorted PW2 and her baby to the Government Chemist for extraction of DNA samples to be compared with samples which had been taken from the Appellant. The Forensic report dated 24 th May 2022 was produced as an exhibit Pexb 7 . Defence Counsel did not object to production of the report by the officer. The report’s conclusion was that there was a 99.99% probability that the Appellant was the biological father of the child born by PW2 . This is medical expert evidence. The same was not controverted. The fact that the Appellant fathered the child of PW1 is conclusive proof that it was he who defiled the child. From the above I am satisfied that indeed penetration did occur.
46. An essential element of both the main charge of Incest and the alternative charge is that the victim must be shown to have been a child i.e aged under eighteen (18) years old at the time of the offence.
47. PW1 told the court that at the time of the offence she was aged seventeen (17) years . PW3 stated that she was aged fifteen (15) years at the material time and PW4 says she was aged thirteen (13) years at the time. PW1 confirmed to the court that at the time of the offence her daughters were aged 15 years, 13 years and 11 years. It is noteworthy that the trial magistrate proceeded to conduct a Voire dire examination on all three children. This means that the court itself observed that all the complainants were minors. No birth certificates were produced to prove the age of the minors. Does this mean that their ages were not sufficiently proved. I think not.
48. Rule 4 of the Sexual Offences Rules provides that:-
“When determining the age of a person, eh court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document .”
[Own emphasis]
49. In the case of EDWIN NYAMBOGO ONSONGO -VS- REPUBLIC [2016] eKLR the Court stated thus
“…………………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 documents, 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. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be
credible and valuable .” [Own emphasis]
50. PW6 produced the dedication cards for both PW3 and PW4 issued by PEFA church. The dedication card for PW2 indicates that she was born on 25 th June 2005 Pexb 4 whilst the dedication card for PW4 Pexb 5 indicates that the child was born on 23 rd September 2009 . The said dedication cards in my view provide proof of the age of the minors.
51. The final element to be proved is the identity of the perpetrator. All the three complainants testify that it was the Appellant who defiled them. The Appellant was a person who was very well known to each of the three girls as he was their step-father. The minors lived with the Appellant and even referred to him as their father. Thus there is clear evidence of identification by way of recognition. In the case of ANJONONI & 4 OTHERS -VS- REPUBLIC [1980] KLR the court observed as
“…………recognition of an assailant is more satisfactory
more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.”
52. From the narration of the minors the Appellant defiled each of them several times. Some of the incidences occurred in the daytime. The minors spent time in the company of the Appellant. They therefore had ample time and opportunity to see him well.
53. The Appellant’s defence amounted to a bare denial in which he conceded to the fact that he lived with the three minors and their mother. The defence did not controvert the minors’ evidence on identification. If anything the Appellant was confirmed that the children knew him well.
54. In his grounds of Appeal the appellant claimed that the charges had been framed against him by the childrens mother PW1 due to a grudge she had against him. No evidence was adduced by the Appellant to prove the existence of said grudge. There was no allegation that the children themselves bore any grudge against the appellant which would cause all three to frame him. Lastly even if the mother wanted to frame the appellant no explanation has been given of why the medical evidence corroborates the testimony of the three minors. I find no merit in this claim and the same is dismissed. I am satisfied that there had been proper and reliable identification of the
Appellant as the man who defiled the two girls.
55. As stated earlier due to lack of evidence to prove that the Appellant was the biological father of the three complainants the main charges of Incest cannot stand. However from my analysis of the evidence I am more than satisfied that the three alternative charges of Committing an Indecent Act with a child were proved satisfactorily.
56. In her judgment the trial magistrate relied on Section 179 of the Criminal Procedure Code to convict the Appellant on the three counts of Defilement. Section 179 refers to the conviction of an accused on a lessor or minor offence. I do not think that the offence of Defilement can be said to be a lesser charge as compared with the charge of Incest. In my view the two offences are at par. There was no need for the trial magistrate to refer to Section 179 when the Appellant already faced alternative charges which were lesser charges than the main charges.
57. Section 179 only permits a court to convict on a minor or lesser cognate offence. In the case of KALU -VS- REPUBLIC] 2010] eKLR it was observed that:-
“With the greatest respect to the learned Judge there is no law which would authorize a judge on appeal to convict a person with an offence with which that person was never charged. All the provisions of the Criminal Procedure Code which are under the heading ‘Convictions for offense other than those charged and beginning with Section 179 upto Section 190 deal with situations in which a court is entitled to convict on a minor and cognate offence where a person is charged with a more serious offence…….”
58. By no stretch of imagination can defilement be said to be a lesser offence than Incest. Both are very serious offences. They are each unique and distinct offences with different ingredients. Incest requires proof of kinship whilst defilement requires proof of age. The two offences are not cognate. Proof of incest does not establish Defilement, just as proof Defilement does not establish Incest.
59. Section 179 may only be properly invoked where the ingredients of the minor offence are included in the offence charged.
60. Therefore I fault the decision of the trial court to return convictions on
charges of Defilement. She ought to have convicted the Appellant on the alternative charges which he faced. In the circumstances I do not set aside the conviction of the Appellant one charge of Defilement contrary to Section 8(1) as ready with Section 8(3) of the Sexual Offences Act . Similarly the conviction of the Appellant on two (2) charges of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act are hereby set aside.
61. In place of the above convictions I substitute a conviction of the Appellant on the three (3) alternative counts of ‘ Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act .
62. Following his conviction the Appellant was allowed an opportunity to mitigate. The pre-sentence report was also filed in court. Section 11(1) provides that
“11(1) Any person who commits an indecent act with
a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to Imprisonment for a term of not less than ten years [Own emphasis]
63. Section 11(1) provides for a minimum mandatory sentence upon conviction. The constitutionality of the minimum mandatory sentences was confirmed by the Supreme Court in the case of REPUBLIC -VS- JOSHUA GICHUKI MWANGI [2023] eKLR .
64. The Appellant committed each offence separately and indecently assaulted each child on their own. The acts were not part of the same transaction. Each constituted a separate offence involving different minors. In that regard each offence will attract the sentence provided for by law. The heinousness of the offences committed by the Appellant cannot be over emphasized. The Appellant was a person who stood in loco parents to the three complainants. They all referred to him as ‘ baba’ . The actions of the Appellant destroyed the innocence of the minors and condemned one of them to bear a child at a very young age. The children ran away from home and had to take refuge in a children’s home. Their lives have been destroyed forever. The Appellant does not deserve any mercy.
65. I therefore set aside the sentences imposed by the trial court and in their place sentence the Appellant as follows;-
- On each of the three (3) alternative counts the Appellant
will serve ten (10) years imprisonment . The sentences to be served consecutively . It is so ordered.
Dated in Nyeri this 22 nd day of May, 2026.
…………………………
MAUREEN A. ODERO
JUDGE
HIGH COURT CRIMINAL APPEAL CASE NO. E087 OF 2024 JUDGEMENT Page 26 of 26