1. The Appellant, John Syokuma, was charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on diverse dates between July and August 2018 at Kalindilo Sub-Location, Kathivo Location in Matinyani Sub-County within Kitui County, being a male person, he had sexual intercourse with F.K., a child aged 13 years, knowing her to be his daughter.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
3. The Appellant pleaded not guilty to both the main and alternative charges and the prosecution called four witnesses in support of its case.
4. PW1, F.K.J., the complainant, aged 15 years, testified that she lived with her father, the accused, and her three brothers following her mother's death, sharing a bed with her brother Joseph while the accused slept with her two other brothers, Barrack and Dennis. She testified that one night in August 2018, after she had served the accused his supper, he came into the room, joined her and Joseph on the bed such that she was placed in the middle, ordered her to remove her clothes, and defiled her, remaining for about two hours before returning to his own bed. She testified that he repeated this act a week later, at about 10.00 p.m. She stated that she thereafter went to her maternal grandmother and disclosed that the accused was defiling her, following which the grandmother reported the matter at Matinyani Police Station, a statement was recorded, and she was taken to hospital.
5. PW2, Joseph John, the complainant's brother, then aged 13 years, gave unsworn evidence following a voir dire. He testified that in 2018 he was sleeping on the same bed as the complainant, went outside to relieve himself, and did not see anyone else on the bed.
6. PW3, Regina Ngii Mbelwa, the complainant's maternal grandmother, testified that the complainant came to her home in May 2019 at about 9.00 p.m. and informed her that the accused was giving her a hard time and defiling her, and would also beat her. Subsequently, accused was arrested and that the complainant was taken to Matinyani Hospital and to the police.
7. PW4, Dr Mwini Miano of Kitui Hospital, testified that on 10th July 2019, she examined complainant finding complainant with a broken hymen filled the P3 form and Post Rape Care form both dated 10th July 2019 herein produced respectively as Prosecution Exhibits 1 and 2. He also produced the complainant's birth certificate Prosecution Exhibits 3 showing she was born on 29th September 2006.
8. In his sworn defence stated that following the death of his wife, his children including the complainant went to leave with his mother. He subsequently remarried and that the complainant threatened to have him incarcerated so that his second wife would leave, adding that the family did not wish the children to share an inheritance. DW1, Eunice Wayua Syokuma, a relative of the family, testified that the charges were false, stating that she had taken the complainant in and shared a bed with her following her mother's death, and that the complainant attended school from her home. She stated that on medical examination, conducted a year after the alleged incident, the doctor found nothing. DW2, Joseph Syokuma, the complainant's brother, then aged 14 years, was subjected to a voir dire and, the court being satisfied that he was not of tender age and understood the distinction between truth and falsehood, gave sworn evidence. He testified that he resided with his mother, that the accused was his father, and that the complainant had lied to the police.
9. By judgment dated 22nd May, 2023, the trial court found the Appellant guilty of the main count and subsequently sentenced him to life imprisonment on 12th June 2023.
10. The Appellant was aggrieved by both his conviction and sentence and lodged the present appeal raising grounds which may be summarised as follows:
1) That the learned trial magistrate erred in law and fact by breaching constitutional and statutory provisions, particularly section 200(3) of the Criminal Procedure Code, thereby compromising the Appellant's right to a fair trial under Article 50(1) of the Constitution.
2) That the learned trial magistrate erred in law and fact by relying on prosecution evidence which was not corroborative and was insufficient to sustain the conviction.
3) That the learned trial magistrate erred in law and fact by finding that the Appellant had been properly identified at the scene and by failing to appreciate that the circumstances of the offence amounted to a frame-up intended to link him to the offence.
4) That the learned trial magistrate erred in law and fact by relying on medical documents which, according to the Appellant, had not been proved beyond reasonable doubt.
5) That the learned trial magistrate erred in law and fact in imposing sentence without properly considering the section of the charge and the age of the complainant as reflected in the charge sheet.
6) That the learned trial magistrate erred in law and fact by allowing the prosecution to close its case when crucial witnesses had not been called to testify.
7) That the learned trial magistrate erred in law and fact by failing to properly consider the Appellant's defence, which he maintained was not an afterthought.
8) That the sentence imposed was harsh, cruel and excessive, and that the trial court failed to properly consider the mitigation and sentencing guidelines.
9) That the learned trial magistrate erred in law and fact by convicting the Appellant on evidence which was marred by inconsistencies, doubts and contradictions.
10) That the learned trial magistrate erred in law and fact by relying on hospital documents which had not been proved beyond reasonable doubt.
11) The Appellant further reserved the right to add or amend the grounds of appeal upon obtaining the material trial documents. He prayed that the appeal be allowed, that the proceedings be declared a mistrial, and that the conviction be quashed and the sentence of life imprisonment set aside.
11. In his written submissions were dated 27th August 2026, the Appellant urged the court to allow the appeal. On the other hand, the Respondent's written submissions were dated 31st August 2026 urged the Court to uphold the conviction and sentence.
12. From the grounds of appeal and the submissions, the following issues arise for determination:
1) Whether the provisions of section 200(3) of the Criminal Procedure Code were complied with.
2) Whether the prosecution proved the ingredients of the offence of incest contrary to section 20(1) of the Sexual Offences Act beyond
3) Whether the medical and documentary evidence was properly admitted.
4) Whether the trial court properly considered the Appellant's defence and whether it impermissibly shifted the burden of proof to him.
5) Whether the alleged failure to call material witnesses and the contradictions and inconsistencies in the prosecution evidence rendered the conviction unsafe.
6) Whether the Appellant's right to a fair trial, including the right to legal representation, was violated.
7) Whether the sentence of life imprisonment was lawful and proper.
8) What orders should follow.
13. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence afresh and arrive at its own independent conclusion, while bearing in mind that it did not see or hear the witnesses testify. This duty was stated in Okeno v Republic [1972] EA 32, where the Court held that a first appellate court must subject the evidence to a fresh and exhaustive examination and make its own findings and conclusions.
14. On the issue of whether the ingredients of incest were proved, Section 20(1) of the Sexual Offences Act requires proof of sexual intercourse between persons who are related in the manner specified in the section, with the accused person being aware of that relationship. In the present case, the prosecution was therefore required to prove, first, the relationship between the Appellant and PW1; second, that PW1 was a child at the time of the alleged offence; and third, that the Appellant had sexual intercourse with PW1.
15. The evidence on the first two matters was documentary and oral. PW1 testified that the Appellant was her father. The birth certificate produced in evidence gave PW1's date of birth as 29th September 2006 and named the Appellant as her father. The alleged incidents were said to have occurred in July and August 2018. PW1 was therefore a child below eighteen years at the material time. The father-daughter relationship was also established, and there was no dispute that the Appellant knew that PW1 was his daughter.
16. The ingredient requiring closer scrutiny is sexual intercourse. PW1 testified that in August 2018, while she was sleeping with PW2, the Appellant entered the room at about 11.00 p.m., pushed PW2 towards the wall, placed PW1 between them and had sexual intercourse with her. She further alleged that approximately one week later the Appellant returned and again had sexual intercourse with her. No other prosecution witness testified to having seen the alleged sexual act.
17. PW2 was in the same bed with PW1 during the first alleged incident. He testified that he went outside to relieve himself and that he did not see any other person on the bed. The prosecution did not establish how long he was outside, when he returned to the room or what he observed upon returning. This evidence therefore presents a material inconsistency with PW1's account, which places the Appellant on the bed with her for approximately two hours after pushing PW2 towards the wall. The inconsistency goes directly to the occurrence of the alleged sexual act and to the identity of the person alleged to have committed it.
18. The medical evidence did not independently establish that the Appellant had sexual intercourse with PW1. PW4 examined PW1 on 10 July 2019, approximately one year after the alleged incidents, and found that her hymen was broken. The laboratory examination was negative. The medical findings did not establish when the hymenal condition occurred or who caused it. They therefore could not, without the evidence of PW1 being accepted, establish that sexual intercourse had occurred between PW1 and the Appellant during the period alleged in the charge.
19. The prosecution thus established the familial relationship and the complainant's age, but the ingredient of sexual intercourse between PW1 and the Appellant was not proved beyond reasonable doubt. The evidence on that essential ingredient rested substantially on PW1's testimony, which is materially affected by PW2's account and is not independently established by the medical evidence. Since proof of sexual intercourse was indispensable to the offence charged, failure to prove that ingredient beyond reasonable doubt meant that the charge of incest was not proved to the required standard.
20. On the third issue of whether the medical and documentary evidence was properly admitted, PW4 stated that she examined PW1 on 10th July 2019 and produced the P3 form and Post Rape Care form dated that day as Prosecution Exhibits 1 and 2, together with the birth certificate as Prosecution Exhibit 3. The Respondent relied on section 77 of the Evidence Act and Singh Bosire Nyangaresi v Republic [2018] KEHC 4323 (KLR) in support of the admission of these documents, while the Appellant relied on James Bani Munyoni v Republic [2010] eKLR on the evidential treatment of documentary and professional evidence.
21. Having considered the manner in which the documents were identified and produced; I find that there was a sufficient evidential foundation for their admission. PW4 was the medical officer who examined PW1 and produced the medical documents arising from that examination. The documents were dated 10th July 2019 and related to the examination she conducted. The birth certificate was produced as evidence of the complainant’s date of birth and parental relationship. There was no demonstrated procedural irregularity in their production that rendered them inadmissible. I therefore find that Prosecution Exhibits 1, 2 and 3 were properly admitted in evidence.
22. The fourth issue is whether the trial court properly evaluated the Appellant's defence. The Appellant stated that after the death of his wife, the children went to live with his mother. DW1 gave evidence that she had also taken PW1 into her home and that PW1 lived and attended school from there. The Appellant further alleged that PW1 had threatened to have him incarcerated and referred to an inheritance dispute within the family.The trial court rejected the defence principally because it had not been put to the prosecution witnesses and because the defence witnesses did not account for the Appellant's whereabouts at the material time.
23. With respect, the latter reasoning was erroneous. The burden of proving the Appellant's guilt remained throughout on the prosecution. The Appellant was under no obligation to account for his whereabouts at 11.00 p.m. in order to establish his innocence.
24. The defence did not have to prove that the allegation was fabricated. It was sufficient if, when considered together with the prosecution evidence, it raised a reasonable doubt. The trial court was therefore required to evaluate it against the entire prosecution case rather than treat the absence of an account of the Appellant's whereabouts as strengthening the prosecution case.
25. The fifth issue is whether the alleged failure to call material witnesses and the contradictions and inconsistencies in the prosecution evidence rendered the conviction unsafe.
26. The Appellant challenged the failure to call the maker of the age assessment report. That omission was not fatal to the prosecution case, since the complainant’s age was independently established by the certificate of birth, produced as Prosecution Exhibit 3, which showed her date of birth as 29th September 2006. The age assessment report was therefore not necessary for proof of age.
27. The sixth issue concerns the Appellant’s complaint that his right to a fair trial was violated by the absence of legal representation. Article 50(2)(g) of the Constitution guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. I agree with the holding in Abonyo & another v Republic [2025] KEHC 767 (KLR) cited by the Respondent that the absence of legal representation does not, of itself, invalidate a criminal trial; what must be demonstrated is substantial injustice or prejudice occasioned to the accused.
28. In the present case, the Appellant participated in the proceedings, had the opportunity to challenge the prosecution evidence and presented his defence. He has not demonstrated any specific prejudice or substantial injustice arising from the absence of counsel. The complaint therefore does not vitiate the trial.
29. The seventh issue is whether the sentence of life imprisonment was lawful and proper. In M K v Republic [2015] KECA 468 (KLR), the Court of Appeal considered section 20(1) of the Sexual Offences Act and held that the sentence prescribed under the proviso is not an inflexible mandatory term of life imprisonment, but falls within a statutory range of ten years to life imprisonment.
30. This Court, having found that the prosecution did not prove the charge to the required standard, it follows that the conviction cannot stand and the sentence imposed pursuant thereto must equally be set aside.
31. In the end, the appeal is allowed. The conviction of the Appellant for the offence of incest contrary to section 20(1) of the Sexual Offences Act is quashed. The sentence of life imprisonment imposed by the trial court is set aside. The Appellant shall be released forthwith unless otherwise lawfully held.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
3. The Appellant pleaded not guilty to both the main and alternative charges and the prosecution called four witnesses in support of its case.
4. PW1, F.K.J., the complainant, aged 15 years, testified that she lived with her father, the accused, and her three brothers following her mother's death, sharing a bed with her brother Joseph while the accused slept with her two other brothers, Barrack and Dennis. She testified that one night in August 2018, after she had served the accused his supper, he came into the room, joined her and Joseph on the bed such that she was placed in the middle, ordered her to remove her clothes, and defiled her, remaining for about two hours before returning to his own bed. She testified that he repeated this act a week later, at about 10.00 p.m. She stated that she thereafter went to her maternal grandmother and disclosed that the accused was defiling her, following which the grandmother reported the matter at Matinyani Police Station, a statement was recorded, and she was taken to hospital.
5. PW2, Joseph John, the complainant's brother, then aged 13 years, gave unsworn evidence following a voir dire. He testified that in 2018 he was sleeping on the same bed as the complainant, went outside to relieve himself, and did not see anyone else on the bed.
6. PW3, Regina Ngii Mbelwa, the complainant's maternal grandmother, testified that the complainant came to her home in May 2019 at about 9.00 p.m. and informed her that the accused was giving her a hard time and defiling her, and would also beat her. Subsequently, accused was arrested and that the complainant was taken to Matinyani Hospital and to the police.
7. PW4, Dr Mwini Miano of Kitui Hospital, testified that on 10th July 2019, she examined complainant finding complainant with a broken hymen filled the P3 form and Post Rape Care form both dated 10th July 2019 herein produced respectively as Prosecution Exhibits 1 and 2. He also produced the complainant's birth certificate Prosecution Exhibits 3 showing she was born on 29th September 2006.
8. In his sworn defence stated that following the death of his wife, his children including the complainant went to leave with his mother. He subsequently remarried and that the complainant threatened to have him incarcerated so that his second wife would leave, adding that the family did not wish the children to share an inheritance. DW1, Eunice Wayua Syokuma, a relative of the family, testified that the charges were false, stating that she had taken the complainant in and shared a bed with her following her mother's death, and that the complainant attended school from her home. She stated that on medical examination, conducted a year after the alleged incident, the doctor found nothing. DW2, Joseph Syokuma, the complainant's brother, then aged 14 years, was subjected to a voir dire and, the court being satisfied that he was not of tender age and understood the distinction between truth and falsehood, gave sworn evidence. He testified that he resided with his mother, that the accused was his father, and that the complainant had lied to the police.
9. By judgment dated 22nd May, 2023, the trial court found the Appellant guilty of the main count and subsequently sentenced him to life imprisonment on 12th June 2023.
10. The Appellant was aggrieved by both his conviction and sentence and lodged the present appeal raising grounds which may be summarised as follows:
1) That the learned trial magistrate erred in law and fact by breaching constitutional and statutory provisions, particularly section 200(3) of the Criminal Procedure Code, thereby compromising the Appellant's right to a fair trial under Article 50(1) of the Constitution.
2) That the learned trial magistrate erred in law and fact by relying on prosecution evidence which was not corroborative and was insufficient to sustain the conviction.
3) That the learned trial magistrate erred in law and fact by finding that the Appellant had been properly identified at the scene and by failing to appreciate that the circumstances of the offence amounted to a frame-up intended to link him to the offence.
4) That the learned trial magistrate erred in law and fact by relying on medical documents which, according to the Appellant, had not been proved beyond reasonable doubt.
5) That the learned trial magistrate erred in law and fact in imposing sentence without properly considering the section of the charge and the age of the complainant as reflected in the charge sheet.
6) That the learned trial magistrate erred in law and fact by allowing the prosecution to close its case when crucial witnesses had not been called to testify.
7) That the learned trial magistrate erred in law and fact by failing to properly consider the Appellant's defence, which he maintained was not an afterthought.
8) That the sentence imposed was harsh, cruel and excessive, and that the trial court failed to properly consider the mitigation and sentencing guidelines.
9) That the learned trial magistrate erred in law and fact by convicting the Appellant on evidence which was marred by inconsistencies, doubts and contradictions.
10) That the learned trial magistrate erred in law and fact by relying on hospital documents which had not been proved beyond reasonable doubt.
11) The Appellant further reserved the right to add or amend the grounds of appeal upon obtaining the material trial documents. He prayed that the appeal be allowed, that the proceedings be declared a mistrial, and that the conviction be quashed and the sentence of life imprisonment set aside.
11. In his written submissions were dated 27th August 2026, the Appellant urged the court to allow the appeal. On the other hand, the Respondent's written submissions were dated 31st August 2026 urged the Court to uphold the conviction and sentence.
12. From the grounds of appeal and the submissions, the following issues arise for determination:
1) Whether the provisions of section 200(3) of the Criminal Procedure Code were complied with.
2) Whether the prosecution proved the ingredients of the offence of incest contrary to section 20(1) of the Sexual Offences Act beyond
3) Whether the medical and documentary evidence was properly admitted.
4) Whether the trial court properly considered the Appellant's defence and whether it impermissibly shifted the burden of proof to him.
5) Whether the alleged failure to call material witnesses and the contradictions and inconsistencies in the prosecution evidence rendered the conviction unsafe.
6) Whether the Appellant's right to a fair trial, including the right to legal representation, was violated.
7) Whether the sentence of life imprisonment was lawful and proper.
8) What orders should follow.
13. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence afresh and arrive at its own independent conclusion, while bearing in mind that it did not see or hear the witnesses testify. This duty was stated in Okeno v Republic [1972] EA 32, where the Court held that a first appellate court must subject the evidence to a fresh and exhaustive examination and make its own findings and conclusions.
14. On the issue of whether the ingredients of incest were proved, Section 20(1) of the Sexual Offences Act requires proof of sexual intercourse between persons who are related in the manner specified in the section, with the accused person being aware of that relationship. In the present case, the prosecution was therefore required to prove, first, the relationship between the Appellant and PW1; second, that PW1 was a child at the time of the alleged offence; and third, that the Appellant had sexual intercourse with PW1.
15. The evidence on the first two matters was documentary and oral. PW1 testified that the Appellant was her father. The birth certificate produced in evidence gave PW1's date of birth as 29th September 2006 and named the Appellant as her father. The alleged incidents were said to have occurred in July and August 2018. PW1 was therefore a child below eighteen years at the material time. The father-daughter relationship was also established, and there was no dispute that the Appellant knew that PW1 was his daughter.
16. The ingredient requiring closer scrutiny is sexual intercourse. PW1 testified that in August 2018, while she was sleeping with PW2, the Appellant entered the room at about 11.00 p.m., pushed PW2 towards the wall, placed PW1 between them and had sexual intercourse with her. She further alleged that approximately one week later the Appellant returned and again had sexual intercourse with her. No other prosecution witness testified to having seen the alleged sexual act.
17. PW2 was in the same bed with PW1 during the first alleged incident. He testified that he went outside to relieve himself and that he did not see any other person on the bed. The prosecution did not establish how long he was outside, when he returned to the room or what he observed upon returning. This evidence therefore presents a material inconsistency with PW1's account, which places the Appellant on the bed with her for approximately two hours after pushing PW2 towards the wall. The inconsistency goes directly to the occurrence of the alleged sexual act and to the identity of the person alleged to have committed it.
18. The medical evidence did not independently establish that the Appellant had sexual intercourse with PW1. PW4 examined PW1 on 10 July 2019, approximately one year after the alleged incidents, and found that her hymen was broken. The laboratory examination was negative. The medical findings did not establish when the hymenal condition occurred or who caused it. They therefore could not, without the evidence of PW1 being accepted, establish that sexual intercourse had occurred between PW1 and the Appellant during the period alleged in the charge.
19. The prosecution thus established the familial relationship and the complainant's age, but the ingredient of sexual intercourse between PW1 and the Appellant was not proved beyond reasonable doubt. The evidence on that essential ingredient rested substantially on PW1's testimony, which is materially affected by PW2's account and is not independently established by the medical evidence. Since proof of sexual intercourse was indispensable to the offence charged, failure to prove that ingredient beyond reasonable doubt meant that the charge of incest was not proved to the required standard.
20. On the third issue of whether the medical and documentary evidence was properly admitted, PW4 stated that she examined PW1 on 10th July 2019 and produced the P3 form and Post Rape Care form dated that day as Prosecution Exhibits 1 and 2, together with the birth certificate as Prosecution Exhibit 3. The Respondent relied on section 77 of the Evidence Act and Singh Bosire Nyangaresi v Republic [2018] KEHC 4323 (KLR) in support of the admission of these documents, while the Appellant relied on James Bani Munyoni v Republic [2010] eKLR on the evidential treatment of documentary and professional evidence.
21. Having considered the manner in which the documents were identified and produced; I find that there was a sufficient evidential foundation for their admission. PW4 was the medical officer who examined PW1 and produced the medical documents arising from that examination. The documents were dated 10th July 2019 and related to the examination she conducted. The birth certificate was produced as evidence of the complainant’s date of birth and parental relationship. There was no demonstrated procedural irregularity in their production that rendered them inadmissible. I therefore find that Prosecution Exhibits 1, 2 and 3 were properly admitted in evidence.
22. The fourth issue is whether the trial court properly evaluated the Appellant's defence. The Appellant stated that after the death of his wife, the children went to live with his mother. DW1 gave evidence that she had also taken PW1 into her home and that PW1 lived and attended school from there. The Appellant further alleged that PW1 had threatened to have him incarcerated and referred to an inheritance dispute within the family.The trial court rejected the defence principally because it had not been put to the prosecution witnesses and because the defence witnesses did not account for the Appellant's whereabouts at the material time.
23. With respect, the latter reasoning was erroneous. The burden of proving the Appellant's guilt remained throughout on the prosecution. The Appellant was under no obligation to account for his whereabouts at 11.00 p.m. in order to establish his innocence.
24. The defence did not have to prove that the allegation was fabricated. It was sufficient if, when considered together with the prosecution evidence, it raised a reasonable doubt. The trial court was therefore required to evaluate it against the entire prosecution case rather than treat the absence of an account of the Appellant's whereabouts as strengthening the prosecution case.
25. The fifth issue is whether the alleged failure to call material witnesses and the contradictions and inconsistencies in the prosecution evidence rendered the conviction unsafe.
26. The Appellant challenged the failure to call the maker of the age assessment report. That omission was not fatal to the prosecution case, since the complainant’s age was independently established by the certificate of birth, produced as Prosecution Exhibit 3, which showed her date of birth as 29th September 2006. The age assessment report was therefore not necessary for proof of age.
27. The sixth issue concerns the Appellant’s complaint that his right to a fair trial was violated by the absence of legal representation. Article 50(2)(g) of the Constitution guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. I agree with the holding in Abonyo & another v Republic [2025] KEHC 767 (KLR) cited by the Respondent that the absence of legal representation does not, of itself, invalidate a criminal trial; what must be demonstrated is substantial injustice or prejudice occasioned to the accused.
28. In the present case, the Appellant participated in the proceedings, had the opportunity to challenge the prosecution evidence and presented his defence. He has not demonstrated any specific prejudice or substantial injustice arising from the absence of counsel. The complaint therefore does not vitiate the trial.
29. The seventh issue is whether the sentence of life imprisonment was lawful and proper. In M K v Republic [2015] KECA 468 (KLR), the Court of Appeal considered section 20(1) of the Sexual Offences Act and held that the sentence prescribed under the proviso is not an inflexible mandatory term of life imprisonment, but falls within a statutory range of ten years to life imprisonment.
30. This Court, having found that the prosecution did not prove the charge to the required standard, it follows that the conviction cannot stand and the sentence imposed pursuant thereto must equally be set aside.
31. In the end, the appeal is allowed. The conviction of the Appellant for the offence of incest contrary to section 20(1) of the Sexual Offences Act is quashed. The sentence of life imprisonment imposed by the trial court is set aside. The Appellant shall be released forthwith unless otherwise lawfully held.