REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E004 OF 2024
KANAGO MWACHIREMA MWADUKA..……………..………APPELLANT
VERSUS
REPUBLIC………………………………….. …………….……RESPONDENT
(Being an appeal from the conviction passed on 9 th August 2023 and sentence delivered on and 4 th September 2023 respectively by Hon. Sandra Ogot (Principal Magistrate). in Msambweni Magistrates Court S.O. Case No. E058 of 2022)
J U D G M E N T
1. The appellant, Kanago Mwachirema Mwaduka was convicted on a charge amended on 8 th March 2023 of two counts. The first count is incest contrary to section 20(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on diverse dates between 11 th and 18 th November 2022 at Manda village in Lunga Lunga location in Lunga Lunga Sub-County within Kwale County, intentionally and unlawfully caused his penis to penetrate the anus of R. M. K. who to his knowledge is his daughter aged 9 years.
2. He had also been charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same dates, place and time as in the principal charge the appellant intentionally and unlawfully touched the anus of R. M. K. a child aged 9 years with his penis who to his knowledge is his daughter.
3. The second count was sexual assault contrary to section 5(1)(a)(i) and (2) of the Sexual Offences Act that on the same date, time and place as in the first count, the appellant unlawfully used his fingers to penetrate the vagina of R. M. K. whom to his knowledge is his daughter aged 9 years.
4. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called four witnesses in support of its case.
5. PW 1, R. M. K. was the complainant aged 9 years and daughter of the appellant. There was no dispute about her age and her relationship with the appellant. She said the appellant inserted his penis in her anus and at the same time his fingers in her vagina on three different occasions.
6. PW 2, Athman Rajab Ngala, was a clinical officer from Lunga Lunga hospital. He examined the complainant for the allegation of incest and sexual assault and filled a P3 form and Post Rape Care (PRC) form and produced them in court as exhibits. There was nothing material to confirm that there was penetration of the complainant’s genital organs, both vaginal and anal. PW 2 also said he spoke to the complainant who narrated to him what the appellant allegedly did to her on two occasions, 11 th November 2022 and 18 th November 2022.
7. He also spoke to the appellant when he was taken to the hospital for examination on 22 nd November 2022. There was no material finding to confirm that the alleged acts of penetration had been done to the complainant’s genital organs.
8. PW 3, Kamanza Mamira is an ambassador of Nyumba Kumi initiative and a neighbor of the appellant within the area where the appellant and the complainant reside. He received information of the appellant’s alleged incest upon his daughter on 20 th November 2022. He made inquiries and on being satisfied that there was cause to believe the information, he reported the matter to the area village chairman Margaret Njiru. They went back to the home of the appellant together and advised the appellant’s mother to spend the night with the complainant and to be taken to hospital the following day. The following day, the appellant called PW 3 on phone and sent him KShs 500/= for fare to hospital. PW 3 went with the child and made a report at Lunga Lunga police station after which they went to hospital for the medical examination of the complainant.
9. PW 4, PC Eric Morema of Lunga Lunga police station was the one to whom the complainant reported her case on 21 st November 2022. The complainant narrated the alleged incidents to him. He escorted her to Lunga Lunga hospital where she was medically examined. He recorded statements from witnesses and subsequently had the appellant arrested and charged.
10. PW 4 also produced as evidence the complainant’s clinic health card which showed her date of birth as 18 th January 2013, thereby making her 9 years and about ten months at the time of the alleged incidents on 11 th and 18 th November 2022 respectively.
11. The appellant DW 1, gave sworn evidence in defence and did not call a witness. He denied that he committed the offences. He blamed his wife for his arrest and prosecution. He indicated that he had deep differences with his wife over the fact that the wife was constantly causing the complaint not to go to school but to stay at home and do domestic chores.
12. At the end of the trial, the learned trial magistrate was satisfied that the prosecution had proved its case against the appellant on both counts beyond a reasonable doubt. The appellant was found guilty of the principal charge of incest and the second count of sexual assault. He was sentenced to serve forty-five (45) years’ and ten (10) years’ imprisonment respectively on the two counts.
13. The appellant was aggrieved by the decision of the trial court and has filed this appeal based on some eight amended grounds of appeal dated 30 th September 2025. The amended grounds of appeal were filed together with his submissions.
14. The grounds of appeal lack clarity but I can discern from what is recorded that the appellant’s grounds are that the trial court erred on convicting him for the offences when they had not been proved beyond a reasonable doubt and that the sentences passed against him were excessive. For instance, he complains that the trial court relied on hearsay and circumstantial evidence, that the witnesses were not credible, they were motivated by malice, the medical evidence was doubtful, not credible and therefore unreliable. Further that the sentence passed was harsh, unfair, improper, unjustified and unconstitutional and contrary to the Sentencing Policy Guidelines.
15. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The same are considered in the analysis that follows.
16. The appellant submits that the prosecution did not prove the charges for which he was convicted beyond a reasonable doubt. He submitted that the medical evidence and oral testimonies of prosecution witnesses which the trial court found were corroborative was doubtful. He particularly cited the case of David Otieno Alex v Republic [2016] KEHC 8736 (KLR) to support his submission that the complainant’s evidence required corroboration. In that case, the court stated that:
“Although under the proviso to section 124 of the Evidence Act (Chapter 80 of the Laws of Kenya) , her testimony did require corroboration to support a conviction, there was ample corroborative evidence.”
17. That decision does not seem to be helpful to the appellant’s case given that it restates the law as it is that corroboration was not required but even then there was ample corroboration of the complainant’s evidence.
18. The appellant submits that when the charge sheet was amended, the proper procedure under section 214 of the Criminal Procedure Code was not followed because he was to be asked whether he desired the case to start afresh but that was not done and he was thereby irreparably prejudiced and this necessitates a retrial.
19. The appellant submits on the admissibility and consideration of character evidence against an accused person as provided for under section 56 of the Evidence Act that in criminal proceedings, the fact that the person accused is of a good character is admissible. He submits that no evidence of bad character was adduced against him.
20. He submits further that the trial court did not give weight to his defence that he had differences with the complainant’s mother arising out of the mother causing the complainant not to go to school in order to take care of her younger siblings while the appellant insisted that he goes. He submits that the complainant, being a child, was heavily influenced and manipulated by her mother.
21. The DPP learned Principal Prosecution counsel for the respondent submits that the elements of the offence of incest were proved against the appellant beyond any reasonable doubt and the learned trial magistrate was correct in her so finding. Learned counsel cited the case of Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR) on the proof of the age of the complainant. However, there was no ground challenging proof of age of the complainant and as pointed out earlier that issue was not in contest even at the trial.
22. Learned counsel further cites section 124 of the Evidence Act and submits that evidence of the complainant is sufficient to prove the offence and found a conviction for the appellant provided that it was found to be truthful. Learned counsel relied on the case of SKM v Republic [2021] KEHC 7722 (KLR) where the High Court observed that:
“...no person will defile a child or rape a woman in the open for there to be witnesses instead they are done in hiding and very fast which prompted the Court of Appeal to observe that ‘many times the attacker does not fully complete the sexual act during the commission of the offence’ this is out of fear of being caught.”
23. Further that the sentence passed upon the appellant was lawful and commensurate to the offences and the conviction and the same should be upheld.
24. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
25. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19 .
26. The prosecution’s case was essentially based on what the complainant said. It is not disputed that the appellant is the complainant’s father. The complainant testified that on three different occasions the appellant removed her tights/bikers and panties then inserted his fingers in her vaginal orifice then his penis in her anus then let her go. The first occasion was at night while the second and third it was during the day when her siblings were away playing. Her mother was away from home on all the occasions. On the third occasion while her mother was washing her the complainant told her that she had pain in her front genital organ and when her mother asked who had caused her the injury she informed her it was by the appellant by his usual mannerisms. The mother told her to tell the truth and she confirmed that it was the truth. The complainant’s mother asked the appellant about it and he denied that he had done anything.
27. The village elder Margaret came home after about two days and took the complainant to the police station and made a report.
28. In cross-examination, the complainant reiterated that she had not told her mother or siblings about the incidents on the first or second occasions when they happened. She said the reason was because her heart did not want to.
29. In his defence the appellant denied that he committed the offences and said he has no clue about the charges he faced. He said that he had quarreled with his wife over the issue of children going to school. He left the house to go and cool down. When he returned that evening his wife asked what he had done to the child. He respondent that he had done nothing. The wife told him that the child had said that he had done “tabia mbaya” or bad manners to her. He denied and said that if her had done it the neighbours would have heard. He denied inserting his fingers in her. He returned to work and sent his wife KShs 500/= for her to take the child to hospital for examination. When he returned in the evening her asked her if they had gone to hospital and she agreed and said the results would be released in December yet this was in November. That night members of the village security team “Balozi” went to his home with police officers. He was arrested and taken to the police station and subsequently charged with the offences in court.
30. In cross-examination, he said the complainant is his daughter and Mnyazi is his mother and they have eight children. The complainant has elder and younger siblings. He said the quarrels he had with his wife was that she used to tell the children not to go to school. He said that the complainant spoke lies in court premised on lies told by her mother.
31. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the prosecution proved beyond a reasonable doubt that the appellant committed incest and sexual assault against the complainant.
32. Sections 20(1) of the Sexual Offences Act under which the appellant was convicted for the offence of incest provides as follows:
S. 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, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
33. In the case of LOA v Republic [2020] KECA 927 (KLR) the Court of Appeal considering the ingredients of the offence of incest held that:
“We have no doubt at all that for an offence of incest to be proved, pursuant to section 20 of the Sexual Offences Act, the prosecution needs to prove the sex of the victim, the relationship of the victim to the perpetrator, penetration and the age of the victim. The latter requirement is for purposes of sentencing.”
34. Further in the case of MGK vs. Republic [2020] eKLR the Court of Appeal held that with respect to the ingredients of the offence of incest that:
“…. the ingredients that must be established for the offence of incest by a male person is, first, that the victim and the offender are related within the categories stated under section 20(1) of the Sexual Offences Act. Secondly, that the offender committed an act which caused penetration with the victim, and thirdly, the age of the victim must also be established for the proviso to apply.”
35. Section 5 of the SOA under which the appellant was convicted on the second count provides as follows:
(1) Any person who unlawfully—
(a) penetrates the genital organs of another person with—
(i) any part of the body of another or that person; or
(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body;
is guilty of an offence termed sexual assault.
(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.
36. The Court of Appeal, explaining this section in the case of John Irungu v Republic [2016] KECA 516 (KLR) held thus:
“The offence is constituted by committing an act which causes penetration of the genital organs of any person by any part of the body of the perpetrator or of any other person or by an object manipulated to achieve penetration. Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.”
37. There is no dispute that the complainant is female and that the appellant is her father.
38. The appellant submits that the trial court failed to comply with the requirements of section 214 of the CPC after the charge sheet had been amended. The said section provides as follows:
214. Variance between charge and evidence, and amendment of charge
(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that—
(i) where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;
(ii) where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
(3) Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary.
39. The charge sheet was amended to introduce a new count and vary the particulars of the first principal charge. The new charge sheet was read over to the appellant and he respondent thereto. Immediately after fresh plea was taken, the appellant informed the court that he was not ready to proceed that day and asked for the complainant to be recalled. The adjournment was allowed and the complainant was recalled and further cross-examined at the adjourned hearing.
40. I am satisfied that the trial court complied with the provisions of section 214 of the Criminal Procedure Code. The appellant elected to have only the complainant recalled for further cross-examination as was his right.
41. The appellant submits that most of the prosecution witnesses relied on hearsay and circumstantial evidence and the entire prosecution evidence was not watertight.
42. I have stated above that the depended to a great deal on the evidence of the complainant. The issue then is whether that evidence was sufficient as a basis for the conviction of the appellant on the charges.
43. The appellant submits that the trial court failed to take into consideration the character evidence of the prosecution witnesses especially PW 3 and the defendant for purposes of determining the reliability and credibility of the witnesses and the propensity of the defendant to behave in a particular way.
44. It is true that PW 3 had no direct evidence to offer to the trial court on the commission of the offence. Her role was on the arrest of the appellant and escorting the complainant to the police station then to hospital. She had no evidence to give on how the offence was committed or on the results of the investigations. Yet his evidence was material in the sense of triggering the process of investigations into the allegations. I find no reason to doubt his credibility. PW 3 readily agreed that the appellant sent him money for him to take the complainant to hospital.
45. As for the character of the appellant, the same was not an issue at the trial as it was not raised either by the prosecution or the defence. It is therefore not an issue for this court to determine. In any case, there is no material on which it would be determined.
46. The appellant submits that the PRC form was copied directly from the P3 form and did not bring out an independent report. I find nothing untoward in that. The two documents were completed by the same person, PW 2. As stated above, there was no information implicating the appellant in either of the documents and so I find no reason for the appellant to raise issues regarding them.
47. The appellant submits that he is a good father of eight children begotten over a considerable period of time. He wanted his only daughter to get an education in order to have a secure future and favourable opportunities in life and it would be ironical that he turned against his daughter and became a bad father.
48. Indeed, the fact that the person accused is of a good character is admissible under section 56 of the Evidence Act (Cap. 80) Laws of Kenya. It helps the court to determine the credibility of the accused person. However, even where the good character of the accused person is established, it will not override clear, direct evidence proving the guilt of the accused person beyond a reasonable doubt. The trial court in this case did not believe the appellant’s evidence that being of good character he could not have committed the offences he was committed of.
49. The appellant submits that the learned trial magistrate failed to place the requisite weight on his defence that he had quarreled with his wife who wanted the complainant to stay home and take care of the younger siblings, something the appellant was against. He says that the quarrel had a bearing on his being implicated in this case because the complaint being a child was heavily manipulated and influenced by her mother to lie about the whole case.
50. The complainant gave sworn evidence. She was the only witness to testify that the appellant inserted his genital organ in her anus and fingers in her vagina at the same time. She was thus the only eye witness to all the elements of the offences.
51. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
.S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
52. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
53. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that t]he complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
54. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
55. The learned trial magistrate clearly cautioned herself on the need to proceed with the greatest care before placing reliance on the evidence of a single witness, PW 1. She then evaluated the evidence of the complainant and found that she was vivid in her recollection of the three different incidents in which she said the appellant committed the offences and that her narrative never changed. The learned trial magistrate was satisfied that the witness was an honest and a truthful witness. I have equally re-examined and re-evaluated the complainant’s evidence and I agree with the learned trial magistrate that there is no reason to fault it.
56. The appellant’s defence was that the complainant was lying and that she had been manipulated and influenced by her mother to lie. The issue of lying and being influenced by the mother was put to the complainant in cross-examination by the appellant twice during her initial testimony and when she was recalled for further cross-examination. She maintained that she was not lying but speaking the truth. Weighed against the appellant’s denial that he had committed the offences against the complainant, I am inclined to find the complainant’s evidence to carry more weight and that the appellant’s denial is incapable of rebutting it.
57. Under the proviso to section 124 of the Evidence Act, there need not be any other eye witness besides the complainant for as long as the court finds that she was telling the truth and also that it warned itself of the dangers of relying on the uncorroborated evidence of the victim. In the case of Mwachongo v Republic [2016] KECA 521 (KLR) the Court of Appeal held that:
“Under the proviso to section 124 of the Evidence Act , a trial court can convict the accused person in a prosecution involving a sexual offence on the evidence of the victim alone if it believes the victim is truthful and records the reasons for that belief.”
58. In this case, the learned trial magistrate recorded after the voire dire examination of the complainant that she was satisfied the complainant was possessed of sufficient intelligence and understood the concept of honesty. That satisfies the requirement for the trial court to record in the proceedings that the complainant was telling the truth.
59. On the contention that the learned trial magistrate did not give due regard to the appellant’s sworn evidence is not true because the learned trial magistrate set out the defence offered by the appellant. Although she does not seem to have made an explicit evaluation of it so as to determine whether it had any credibility to challenge the evidence tendered by the prosecution, a consideration of the manner she proceeded with the entire judgment shows that she took into account that evidence. The Court of Appeal while considering this issue in the case of SJS v Republic [2026] KECA 921 (KLR) stated thus with regar
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IN THE HIGH COURT OF KENYA AT KWALE
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E004 OF 2024
KANAGO MWACHIREMA MWADUKA..……………..………APPELLANT
VERSUS
REPUBLIC………………………………….. …………….……RESPONDENT
(Being an appeal from the conviction passed on 9 th August 2023 and sentence delivered on and 4 th September 2023 respectively by Hon. Sandra Ogot (Principal Magistrate). in Msambweni Magistrates Court S.O. Case No. E058 of 2022)
J U D G M E N T
1. The appellant, Kanago Mwachirema Mwaduka was convicted on a charge amended on 8 th March 2023 of two counts. The first count is incest contrary to section 20(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on diverse dates between 11 th and 18 th November 2022 at Manda village in Lunga Lunga location in Lunga Lunga Sub-County within Kwale County, intentionally and unlawfully caused his penis to penetrate the anus of R. M. K. who to his knowledge is his daughter aged 9 years.
2. He had also been charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same dates, place and time as in the principal charge the appellant intentionally and unlawfully touched the anus of R. M. K. a child aged 9 years with his penis who to his knowledge is his daughter.
3. The second count was sexual assault contrary to section 5(1)(a)(i) and (2) of the Sexual Offences Act that on the same date, time and place as in the first count, the appellant unlawfully used his fingers to penetrate the vagina of R. M. K. whom to his knowledge is his daughter aged 9 years.
4. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called four witnesses in support of its case.
5. PW 1, R. M. K. was the complainant aged 9 years and daughter of the appellant. There was no dispute about her age and her relationship with the appellant. She said the appellant inserted his penis in her anus and at the same time his fingers in her vagina on three different occasions.
6. PW 2, Athman Rajab Ngala, was a clinical officer from Lunga Lunga hospital. He examined the complainant for the allegation of incest and sexual assault and filled a P3 form and Post Rape Care (PRC) form and produced them in court as exhibits. There was nothing material to confirm that there was penetration of the complainant’s genital organs, both vaginal and anal. PW 2 also said he spoke to the complainant who narrated to him what the appellant allegedly did to her on two occasions, 11 th November 2022 and 18 th November 2022.
7. He also spoke to the appellant when he was taken to the hospital for examination on 22 nd November 2022. There was no material finding to confirm that the alleged acts of penetration had been done to the complainant’s genital organs.
8. PW 3, Kamanza Mamira is an ambassador of Nyumba Kumi initiative and a neighbor of the appellant within the area where the appellant and the complainant reside. He received information of the appellant’s alleged incest upon his daughter on 20 th November 2022. He made inquiries and on being satisfied that there was cause to believe the information, he reported the matter to the area village chairman Margaret Njiru. They went back to the home of the appellant together and advised the appellant’s mother to spend the night with the complainant and to be taken to hospital the following day. The following day, the appellant called PW 3 on phone and sent him KShs 500/= for fare to hospital. PW 3 went with the child and made a report at Lunga Lunga police station after which they went to hospital for the medical examination of the complainant.
9. PW 4, PC Eric Morema of Lunga Lunga police station was the one to whom the complainant reported her case on 21 st November 2022. The complainant narrated the alleged incidents to him. He escorted her to Lunga Lunga hospital where she was medically examined. He recorded statements from witnesses and subsequently had the appellant arrested and charged.
10. PW 4 also produced as evidence the complainant’s clinic health card which showed her date of birth as 18 th January 2013, thereby making her 9 years and about ten months at the time of the alleged incidents on 11 th and 18 th November 2022 respectively.
11. The appellant DW 1, gave sworn evidence in defence and did not call a witness. He denied that he committed the offences. He blamed his wife for his arrest and prosecution. He indicated that he had deep differences with his wife over the fact that the wife was constantly causing the complaint not to go to school but to stay at home and do domestic chores.
12. At the end of the trial, the learned trial magistrate was satisfied that the prosecution had proved its case against the appellant on both counts beyond a reasonable doubt. The appellant was found guilty of the principal charge of incest and the second count of sexual assault. He was sentenced to serve forty-five (45) years’ and ten (10) years’ imprisonment respectively on the two counts.
13. The appellant was aggrieved by the decision of the trial court and has filed this appeal based on some eight amended grounds of appeal dated 30 th September 2025. The amended grounds of appeal were filed together with his submissions.
14. The grounds of appeal lack clarity but I can discern from what is recorded that the appellant’s grounds are that the trial court erred on convicting him for the offences when they had not been proved beyond a reasonable doubt and that the sentences passed against him were excessive. For instance, he complains that the trial court relied on hearsay and circumstantial evidence, that the witnesses were not credible, they were motivated by malice, the medical evidence was doubtful, not credible and therefore unreliable. Further that the sentence passed was harsh, unfair, improper, unjustified and unconstitutional and contrary to the Sentencing Policy Guidelines.
15. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The same are considered in the analysis that follows.
16. The appellant submits that the prosecution did not prove the charges for which he was convicted beyond a reasonable doubt. He submitted that the medical evidence and oral testimonies of prosecution witnesses which the trial court found were corroborative was doubtful. He particularly cited the case of David Otieno Alex v Republic [2016] KEHC 8736 (KLR) to support his submission that the complainant’s evidence required corroboration. In that case, the court stated that:
“Although under the proviso to section 124 of the Evidence Act (Chapter 80 of the Laws of Kenya) , her testimony did require corroboration to support a conviction, there was ample corroborative evidence.”
17. That decision does not seem to be helpful to the appellant’s case given that it restates the law as it is that corroboration was not required but even then there was ample corroboration of the complainant’s evidence.
18. The appellant submits that when the charge sheet was amended, the proper procedure under section 214 of the Criminal Procedure Code was not followed because he was to be asked whether he desired the case to start afresh but that was not done and he was thereby irreparably prejudiced and this necessitates a retrial.
19. The appellant submits on the admissibility and consideration of character evidence against an accused person as provided for under section 56 of the Evidence Act that in criminal proceedings, the fact that the person accused is of a good character is admissible. He submits that no evidence of bad character was adduced against him.
20. He submits further that the trial court did not give weight to his defence that he had differences with the complainant’s mother arising out of the mother causing the complainant not to go to school in order to take care of her younger siblings while the appellant insisted that he goes. He submits that the complainant, being a child, was heavily influenced and manipulated by her mother.
21. The DPP learned Principal Prosecution counsel for the respondent submits that the elements of the offence of incest were proved against the appellant beyond any reasonable doubt and the learned trial magistrate was correct in her so finding. Learned counsel cited the case of Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR) on the proof of the age of the complainant. However, there was no ground challenging proof of age of the complainant and as pointed out earlier that issue was not in contest even at the trial.
22. Learned counsel further cites section 124 of the Evidence Act and submits that evidence of the complainant is sufficient to prove the offence and found a conviction for the appellant provided that it was found to be truthful. Learned counsel relied on the case of SKM v Republic [2021] KEHC 7722 (KLR) where the High Court observed that:
“...no person will defile a child or rape a woman in the open for there to be witnesses instead they are done in hiding and very fast which prompted the Court of Appeal to observe that ‘many times the attacker does not fully complete the sexual act during the commission of the offence’ this is out of fear of being caught.”
23. Further that the sentence passed upon the appellant was lawful and commensurate to the offences and the conviction and the same should be upheld.
24. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
25. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19 .
26. The prosecution’s case was essentially based on what the complainant said. It is not disputed that the appellant is the complainant’s father. The complainant testified that on three different occasions the appellant removed her tights/bikers and panties then inserted his fingers in her vaginal orifice then his penis in her anus then let her go. The first occasion was at night while the second and third it was during the day when her siblings were away playing. Her mother was away from home on all the occasions. On the third occasion while her mother was washing her the complainant told her that she had pain in her front genital organ and when her mother asked who had caused her the injury she informed her it was by the appellant by his usual mannerisms. The mother told her to tell the truth and she confirmed that it was the truth. The complainant’s mother asked the appellant about it and he denied that he had done anything.
27. The village elder Margaret came home after about two days and took the complainant to the police station and made a report.
28. In cross-examination, the complainant reiterated that she had not told her mother or siblings about the incidents on the first or second occasions when they happened. She said the reason was because her heart did not want to.
29. In his defence the appellant denied that he committed the offences and said he has no clue about the charges he faced. He said that he had quarreled with his wife over the issue of children going to school. He left the house to go and cool down. When he returned that evening his wife asked what he had done to the child. He respondent that he had done nothing. The wife told him that the child had said that he had done “tabia mbaya” or bad manners to her. He denied and said that if her had done it the neighbours would have heard. He denied inserting his fingers in her. He returned to work and sent his wife KShs 500/= for her to take the child to hospital for examination. When he returned in the evening her asked her if they had gone to hospital and she agreed and said the results would be released in December yet this was in November. That night members of the village security team “Balozi” went to his home with police officers. He was arrested and taken to the police station and subsequently charged with the offences in court.
30. In cross-examination, he said the complainant is his daughter and Mnyazi is his mother and they have eight children. The complainant has elder and younger siblings. He said the quarrels he had with his wife was that she used to tell the children not to go to school. He said that the complainant spoke lies in court premised on lies told by her mother.
31. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the prosecution proved beyond a reasonable doubt that the appellant committed incest and sexual assault against the complainant.
32. Sections 20(1) of the Sexual Offences Act under which the appellant was convicted for the offence of incest provides as follows:
S. 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, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
33. In the case of LOA v Republic [2020] KECA 927 (KLR) the Court of Appeal considering the ingredients of the offence of incest held that:
“We have no doubt at all that for an offence of incest to be proved, pursuant to section 20 of the Sexual Offences Act, the prosecution needs to prove the sex of the victim, the relationship of the victim to the perpetrator, penetration and the age of the victim. The latter requirement is for purposes of sentencing.”
34. Further in the case of MGK vs. Republic [2020] eKLR the Court of Appeal held that with respect to the ingredients of the offence of incest that:
“…. the ingredients that must be established for the offence of incest by a male person is, first, that the victim and the offender are related within the categories stated under section 20(1) of the Sexual Offences Act. Secondly, that the offender committed an act which caused penetration with the victim, and thirdly, the age of the victim must also be established for the proviso to apply.”
35. Section 5 of the SOA under which the appellant was convicted on the second count provides as follows:
(1) Any person who unlawfully—
(a) penetrates the genital organs of another person with—
(i) any part of the body of another or that person; or
(ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes;
(b) manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body;
is guilty of an offence termed sexual assault.
(2) A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life.
36. The Court of Appeal, explaining this section in the case of John Irungu v Republic [2016] KECA 516 (KLR) held thus:
“The offence is constituted by committing an act which causes penetration of the genital organs of any person by any part of the body of the perpetrator or of any other person or by an object manipulated to achieve penetration. Thus, for purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.”
37. There is no dispute that the complainant is female and that the appellant is her father.
38. The appellant submits that the trial court failed to comply with the requirements of section 214 of the CPC after the charge sheet had been amended. The said section provides as follows:
214. Variance between charge and evidence, and amendment of charge
(1) Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case:
Provided that—
(i) where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge;
(ii) where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.
(2) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof.
(3) Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary.
39. The charge sheet was amended to introduce a new count and vary the particulars of the first principal charge. The new charge sheet was read over to the appellant and he respondent thereto. Immediately after fresh plea was taken, the appellant informed the court that he was not ready to proceed that day and asked for the complainant to be recalled. The adjournment was allowed and the complainant was recalled and further cross-examined at the adjourned hearing.
40. I am satisfied that the trial court complied with the provisions of section 214 of the Criminal Procedure Code. The appellant elected to have only the complainant recalled for further cross-examination as was his right.
41. The appellant submits that most of the prosecution witnesses relied on hearsay and circumstantial evidence and the entire prosecution evidence was not watertight.
42. I have stated above that the depended to a great deal on the evidence of the complainant. The issue then is whether that evidence was sufficient as a basis for the conviction of the appellant on the charges.
43. The appellant submits that the trial court failed to take into consideration the character evidence of the prosecution witnesses especially PW 3 and the defendant for purposes of determining the reliability and credibility of the witnesses and the propensity of the defendant to behave in a particular way.
44. It is true that PW 3 had no direct evidence to offer to the trial court on the commission of the offence. Her role was on the arrest of the appellant and escorting the complainant to the police station then to hospital. She had no evidence to give on how the offence was committed or on the results of the investigations. Yet his evidence was material in the sense of triggering the process of investigations into the allegations. I find no reason to doubt his credibility. PW 3 readily agreed that the appellant sent him money for him to take the complainant to hospital.
45. As for the character of the appellant, the same was not an issue at the trial as it was not raised either by the prosecution or the defence. It is therefore not an issue for this court to determine. In any case, there is no material on which it would be determined.
46. The appellant submits that the PRC form was copied directly from the P3 form and did not bring out an independent report. I find nothing untoward in that. The two documents were completed by the same person, PW 2. As stated above, there was no information implicating the appellant in either of the documents and so I find no reason for the appellant to raise issues regarding them.
47. The appellant submits that he is a good father of eight children begotten over a considerable period of time. He wanted his only daughter to get an education in order to have a secure future and favourable opportunities in life and it would be ironical that he turned against his daughter and became a bad father.
48. Indeed, the fact that the person accused is of a good character is admissible under section 56 of the Evidence Act (Cap. 80) Laws of Kenya. It helps the court to determine the credibility of the accused person. However, even where the good character of the accused person is established, it will not override clear, direct evidence proving the guilt of the accused person beyond a reasonable doubt. The trial court in this case did not believe the appellant’s evidence that being of good character he could not have committed the offences he was committed of.
49. The appellant submits that the learned trial magistrate failed to place the requisite weight on his defence that he had quarreled with his wife who wanted the complainant to stay home and take care of the younger siblings, something the appellant was against. He says that the quarrel had a bearing on his being implicated in this case because the complaint being a child was heavily manipulated and influenced by her mother to lie about the whole case.
50. The complainant gave sworn evidence. She was the only witness to testify that the appellant inserted his genital organ in her anus and fingers in her vagina at the same time. She was thus the only eye witness to all the elements of the offences.
51. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
.S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
52. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
53. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that t]he complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
54. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
55. The learned trial magistrate clearly cautioned herself on the need to proceed with the greatest care before placing reliance on the evidence of a single witness, PW 1. She then evaluated the evidence of the complainant and found that she was vivid in her recollection of the three different incidents in which she said the appellant committed the offences and that her narrative never changed. The learned trial magistrate was satisfied that the witness was an honest and a truthful witness. I have equally re-examined and re-evaluated the complainant’s evidence and I agree with the learned trial magistrate that there is no reason to fault it.
56. The appellant’s defence was that the complainant was lying and that she had been manipulated and influenced by her mother to lie. The issue of lying and being influenced by the mother was put to the complainant in cross-examination by the appellant twice during her initial testimony and when she was recalled for further cross-examination. She maintained that she was not lying but speaking the truth. Weighed against the appellant’s denial that he had committed the offences against the complainant, I am inclined to find the complainant’s evidence to carry more weight and that the appellant’s denial is incapable of rebutting it.
57. Under the proviso to section 124 of the Evidence Act, there need not be any other eye witness besides the complainant for as long as the court finds that she was telling the truth and also that it warned itself of the dangers of relying on the uncorroborated evidence of the victim. In the case of Mwachongo v Republic [2016] KECA 521 (KLR) the Court of Appeal held that:
“Under the proviso to section 124 of the Evidence Act , a trial court can convict the accused person in a prosecution involving a sexual offence on the evidence of the victim alone if it believes the victim is truthful and records the reasons for that belief.”
58. In this case, the learned trial magistrate recorded after the voire dire examination of the complainant that she was satisfied the complainant was possessed of sufficient intelligence and understood the concept of honesty. That satisfies the requirement for the trial court to record in the proceedings that the complainant was telling the truth.
59. On the contention that the learned trial magistrate did not give due regard to the appellant’s sworn evidence is not true because the learned trial magistrate set out the defence offered by the appellant. Although she does not seem to have made an explicit evaluation of it so as to determine whether it had any credibility to challenge the evidence tendered by the prosecution, a consideration of the manner she proceeded with the entire judgment shows that she took into account that evidence. The Court of Appeal while considering this issue in the case of SJS v Republic [2026] KECA 921 (KLR) stated thus with regar
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