[1] This is an appeal from the judgment dated 15 th January 2025 in which the learned magistrate found the appellant, Kevin Omondi Ochieng alias Achieng , guilty of the offence of incest contrary to Section 20(1) of the Sexual Offences Act, No. 3 of 2006. The appellant was convicted thereof and sentenced to life imprisonment on the 19 th February 2025.
[2] Being dissatisfied with the decision of the trial court, the appellant filed this appeal on the grounds that:
[a] The learned magistrate erred in law and fact in convicting him despite glaring and very weighty inconsistencies in the evidence presented by the state.
[b] That the learned magistrate erred in law and fact in ignoring the evidence presented by him and his witnesses at the trial.
[c] That the learned magistrate erred in law and fact in failing to resolve the doubt and inconsistencies in his favour.
[d] The learned magistrate erred in law and in fact in relying on the inconsistent and uncorroborated evidence of a minor.
[3] The appellant prayed that his appeal be allowed, the conviction quashed and the sentence set aside. He sought that he be released unconditionally.
[4] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 25 th November 2025. The appellant relied on his written submissions dated 10 th March 2026. He submitted that it was the duty of the prosecution to prove the charge against him beyond reasonable doubt. In this regard, the appellant relied on the cases of Woolmington v DPP [1935] A.C 462 pp 481 and R v Lifchus [1997] 3 SCR 320, on the presumption innocence. The appellant also addressed the Court on both the legal burden and standard of proof and relied on Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14 and the decision of the United States Supreme Court in Re Winship 397 US 358 [1970], at pages 361-64
[5] Based on the above authorities, the appellant submitted that it was incumbent upon the state to establish and prove the 2 offences laid in the Charge Sheet filed before the lower court beyond reasonable doubt. He posited that the evidence presented by the state during trial was riddled with inconsistencies and inadequacies, and therefore did not amount to proof to the required standard. The appellant took issue with the fact that his conviction was based on the uncorroborated and unsworn evidence of a minor of tender years. He argued that very young children can be highly influenced by leading questions, trauma, or coaching; such that their memories may be altered or fabricated.
[6] Accordingly, the appellant urged the Court to re-evaluate the evidence adduced before the lower court with reference to all the issues raised in his written submissions and set aside his conviction and sentence.
[7] The record of the proceedings of the Court shows that on the 4 th March 2026, counsel of the respondent had indicated that she had filed written submissions on 28 th August 2025. No such submissions appear on the record, either in the CTS Portal or on the physical court file. Indeed, it is manifest that the appeal had not been admitted to hearing by then and therefore no directions as to admission or disposal of the appeal had been made. I take it that no submissions were filed in opposition to the appeal.
[8] I have given careful consideration to the appeal and taken into account the written submissions filed herein by the appellant. I am mindful that, in a first appeal such as this, the Court is under obligation to evaluate for itself the evidence adduced before the lower court and come to its own conclusions thereon. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa held that:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusion; 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 also Reuben Ombura Muma & Another vs. Republic [2018] eKLR)
[9] I have consequently perused and considered the evidence presented before the lower court. The respondent called five witnesses. The complainant testified as PW3. She identified the appellant as his father and stated that on the 5 th February 2021 she was at home with the father; and that the mother had gone to the market. She stated that her father put her on the bed and defiled her and that she felt pain and cried. She added that out of fear she could not report the incident to the mother that day, but did so the following day. She was taken to hospital by the mother after a report was made to the police.
[10] Nelson Waka ( PW1) was then attached to Ndhiwa Sub County Hospital. He testified that he examined the minor herein on the 7 th February 2021 and filled a P3 Form in that regard. The minor had allegedly been defiled by a person known to her. He noted that her pant was bloodstained. He also noted that she had difficulty in walking. He was of the opinion that the girl was aged about 6 years and noted that she had marked lacerations at hymen at 6 o’clock and also at labia majora at 6 o’clock and was bleeding from posterior vulva.
[11] Further tests conducted revealed that the girl was HIV+ and was accordingly put on post-exposure prophylactic treatment. The appellant was also examined and found to be HIV+. PW1 therefore formed the opinion that the minor had been defiled. He produced the P3 Forms for both the minor and the appellant, PRC Form for the minor and the treatment notes he made as exhibits before the lower court.
[12] Rose Nyaolo (PW2), the Assistant Chief for Kasirime Kawanga, testified that she knew both the appellant and his wife as residents within her sub location.
[13] The minor’s mother, I A, testified as PW4. She confirmed that the minor is her second born daughter. She also testified that the appellant is her husband and that of her four children only the last born is the appellant’s biological child. PW4 further stated that on the 5 th February 2021, she went to the market and left the minor and her 3 siblings under the care of the appellant. She further stated that when she returned home at 7.00 p.m. she found the minor crying. She added that the minor refused to eat and complained of a headache.
[14] The following morning she noted that the girl was experiencing pain while urinating and when she asked her what was wrong, she told her that she was feeling pain in her vagina and revealed that the appellant had inserted his penis in her vagina. She observed the girl’s genitalia and noted that she was bleeding heavily and yet was not old enough to have her menses. She thereafter caused the matter to be reported to the police and thereafter took the minor to hospital.
[15] PC Emily Musyoka (PW5) a police officer based at Ndhiwa Police Station confirmed that a report of incest was made at their Station and was investigated by PC Belinda Okanga . She merely produced the witness statement made by PC Okanga before the lower court as an exhibit and conceded that she played no role in the investigation of the matter.
[16] In his defence, the appellant conceded that the minor is his step-daughter but not his biological child. He further stated that he got married to the minor’s mother. PW4, in December 2018. He testified that they only cohabited for two months and separated in February 2019. He contended that PW4 was arrested for having stolen a goat on 2 nd February 2021 and that he left her and her children in the hands of the area chief and even gave the chief money for PW4’s fare to her parents’ home. The appellant therefore denied the allegations that he had defiled PW3.
[17] The appellant called his father, Kilemes Ochieng Awuor (DW2) as his witness and his father reiterated the assertion that the appellant was falsely accused of defilement. He told the lower court that when PW4 was arrested on 5 th February 2021 for stealing a goat, they followed up the matter with the appellant to no avail. He added that they had to release the minor to PW4 because the child was too young to be separated from the mother. He concluded his evidence by stating that he was surprised to see the appellant arrested on allegations of defilement.
[18] The last defence witness was Mercy Awino Kevin (DW3). She introduced herself as the wife of the appellant. She testified that on the 27 th day of a month could not recall she was with the appellant at Riat when they were informed that her co-wife (PW4) had been arrested by members of the public for stealing a goat. She further stated that the appellant intervened and called the village elder; and that PW4 was handed over to the chief. She added that PW4 returned the following day with police officers and arrested the appellant for allegedly defiling his own daughter.
[19] In cross-examination DW3 alleged that PW4 had cut her daughter’s genitalia with a razor blade and falsely alleged defilement against the appellant in what she believed to be a vengeful attempt to get back at the appellant for their separation. She added that the separation of PW4 from the appellant was occasioned by her arrest for stock theft.
[20] I have given due consideration to the evidence that was presented before the lower court in the light of the appellant’s Grounds of Appeal. Broadly stated, the issue for determination herein is whether the appeal has merit, in terms of both conviction and sentence. In particular, the Court must ascertain whether:
[a] All the elements of the offence of incest with a minor were proved;
[c] Whether the sentence imposed on him by the lower court was warranted.
A. On whether the elements of the Charge of Incest were proved to the requisite standard:
[21] The substantive charge against the appellant was laid under Section 20(1) of the Sexual Offences Act , which stipulates that:
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it 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.”
[22] The offence entails 4 different elements, namely, the age of the victim; penetration; the identity of the offender and lastly, the relationship between the offender and the victim. That proof of age of a victim of defilement is imperative cannot be overemphasized. The Court of Appeal restated as much in Kaingu Kasomo v Republic Criminal Appeal No. 504 of 2010 thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[23] At to what amounts to credible evidence, Rule 4 of the Sexual Offences Rules of Court Rules provides that:
"When determining the age of a person, the 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."
[24] It is also trite that, in addition to the documents set out in Rule 4 above, the age of a minor for purposes of the Sexual Offences Act can also be proved by the oral evidence of the minor’s mother, by way of age assessment, as well as by observation and common sense. Hence, in P M M v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[25] In this instance, the learned magistrate relied on the evidence of the minor as well as the evidence of the clinical officer. That evidence was to the effect that the minor was 6 years old at the material time. Her mother, PW4, did not specifically mention the date of birth or age of the minor but pointed out that she was too young to experience menstrual flow. She also stated that her follower was 3 years old at the time.
[26] As there was no contention over the age of the minor, it is my finding that credible evidence was placed before the lower court to demonstrate that the minor was then 6 years old. It is notable that for purposes of the offence of incest, it suffices that the minor’s age be under 18 years . Moreover, Section 20(1) provides that:
Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years , the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
[27] In the premises, it is my finding that credible evidence was presented before the lower court proving beyond reasonable doubt that the complainant herein was under the age of 18 years and therefore a child for the specific purposes of the proviso to Section 20(1) of the Sexual Offences Act. The perceived variance referred to by the appellant between the evidence of the complainant and the age stated in the particulars of the substantive charge is therefore inconsequential.
[28] On penetration, although the sole evidence was that of the complainant, her evidence required no corroboration because the proviso to Section 124 is explicit 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.”
[29] In addition to the evidence of PW3, her mother testified as PW4 as to her countenance when she returned home on the 5 th February 2021 and what she noticed the following day. She also noted that the girl’s pant was bloodstained. In addition, PW1 examined her the following day and noted that she had lacerations in her genitalia which extended to the labia minora . It is therefore my finding that penetration was proved beyond reasonable doubt. I find highly improbable that PW4 would deliberately cause her daughter pain in the manner alluded to by DW3.
[30] As to the identity of the offender, again the evidence of the complainant, that the appellant is her step-father, was conceded to by the appellant and his two witnesses. Indeed, in Section 22 of the Sexual Offences Act, the test of relationship is set out as hereunder:
(1) In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half-father and an uncle of the first degree and a mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not.
(2) In this Act—
(a) "uncle" means the brother of a person's parent and "aunt" has a corresponding meaning;
(b) "nephew" means the child of a person's brother or sister and "niece" has a corresponding meaning;
(c) "half-brother" means a brother who shares only one parent with another;
(d) "half-sister" means a sister who shares only one parent with another; and
(e)"adoptive brother" means a brother who is related to another through adoption and "adoptive sister" has a corresponding meaning.
(3) An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.
[31] In sum, it is my finding that all the ingredients of the offence of incest as levelled against the appellant were proved before the lower court to the requisite standard; and therefore the appellant’s conviction cannot be faulted.
C. On whether the Sentence of life imprisonment was warranted in the circumstances:
[32] I have given consideration to the life sentence meted out on the appellant, bearing in mind the reiteration by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, that:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .”
[33] The Judiciary Sentencing Guidelines, 2023 at Paragraph 4.5 on Determination of the Sentence provide:
4.5.1 In determining the appropriate sentence, courts must assess a number of issues starting with the degree of both culpability and harm.
4.5.2 The assessment of culpability will be based on evidence of the crime provided through testimony where a trial has been conducted, or, where a plea is entered, through the prosecution summary of facts. Aggravating and mitigating features surrounding the offence may be advanced by the prosecution and the accused person (or his/her representative).
4.5.3 Where an offence is committed by more than one offender a court shall ascertain the culpability of each of the offenders involved and render individual sentences commensurate to their involvement in the offence.
4.5.4 The assessment of harm may be based on testimony, or the summary of facts presented and also by a victim impact statement where that has been obtained.
4.5.5 Mitigating factors refers to any fact or circumstance that lessens the severity or culpability of a criminal act and can also include the personal circumstances of the offender.
4.5.6 Convicted offenders should be expressly provided with the opportunity to present submissions in mitigation.
4.5.7 A list of aggravating and mitigating circumstances – which is not exhaustive – is contained within the GATS along with those specific to murder, manslaughter, and wildlife cases, in Part V.
4.5.8 Having heard all relevant submissions and considered any reports advanced by either prosecution or defence, or the probation or children’s officer (where applicable), and any victim impact statement, the court should:
i. Decide as to whether a custodial or a non-custodial sentence should be imposed in line with these guidelines.
ii. In the case of sexual offences, before the terms of a custodial sentence are determined, the court must have recourse to relevant probation reports as required in sections 39 (2) and (4) of the Sexual Offences Act No.3 of 2006 that contain provisions about post-penal supervision of dangerous sexual offenders. (emphasis added)
[34] It is therefore essential that at the sentencing hearing, care be taken by trial courts to appraise culpability and harm based on the evidence or facts presented, taking into account any aggravating or mitigating circumstances. The Guidelines also require that the offender be allowed to mitigate, and that a consideration be given to all relevant reports before an appropriate sentence can be determined. In sexual offences, the court must also review the Section 39(4) reports before setting the custodial term and/or prescribing post-penal supervision.
[35] In this matter, the sentencing hearing was held on the 19 th February 2025. The lower court noted what the appellant had to say in mitigation and proceeded to impose the sentence of life imprisonment in accordance with Section 20(1) of the Sexual Offences Act. The appellant was therefore not given a chance to present his mitigation.
[36] It is evident therefore that the trial court refrained from exercising its discretion on sentencing and proceeded on the basis that the proviso to Section 20(1) of the Sexual Offences Act entails a mandatory sentence of life imprisonment. That was an erroneous approach and the Court of Appeal has pronounced itself severally on the matter. For instance, in M K v Republic [2015] KECA 468 (KLR) the Court of Appeal held:
“…18. The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20 (1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life.
19. What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya -v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “ shall be liable on conviction to suffer death ” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James -v- Young 27 Ch. D. at p.655 where North J. said:
“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.
We consider such to be the correct approach to the construction of the words “shall be liable on conviction to suffer death: especially when contrasted with the words of s.184 which are “shall be sentenced to death”.
20. On our part, we contrast the wordings in Section 8 (2) of the Sexual Offences Act with the proviso in Section 20 (1) of the said Act. The contrast will shed light as to whether the sentence in the proviso to Section 20 (1) is minimum and mandatory or otherwise. Section 8 (2) provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. The proviso in Section 20 (1) provides that the accused shall be liable to imprisonment for life.
21. Guided by the decision in Opoya -v- Uganda (1967) EA 752 and the persuasive dicta of North J. in James -v- Young 27 Ch. D. at p.655 ; we are satisfied that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20 (1) we hereby state that the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment…” (emphasis supplied)
[37] It is therefore my considered finding that the learned magistrate proceeded on the wrong principle by holding that Section 20(1) prescribes life imprisonment. Nevertheless, considering the finding that the minor was at a tender age of 6 years and was found to have been infected with HIV it is my finding that the sentence was deserved.
[38] In the result, while I find no merit in the appeal. The same is hereby dismissed.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF AUGUST 2026
[2] Being dissatisfied with the decision of the trial court, the appellant filed this appeal on the grounds that:
[a] The learned magistrate erred in law and fact in convicting him despite glaring and very weighty inconsistencies in the evidence presented by the state.
[b] That the learned magistrate erred in law and fact in ignoring the evidence presented by him and his witnesses at the trial.
[c] That the learned magistrate erred in law and fact in failing to resolve the doubt and inconsistencies in his favour.
[d] The learned magistrate erred in law and in fact in relying on the inconsistent and uncorroborated evidence of a minor.
[3] The appellant prayed that his appeal be allowed, the conviction quashed and the sentence set aside. He sought that he be released unconditionally.
[4] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 25 th November 2025. The appellant relied on his written submissions dated 10 th March 2026. He submitted that it was the duty of the prosecution to prove the charge against him beyond reasonable doubt. In this regard, the appellant relied on the cases of Woolmington v DPP [1935] A.C 462 pp 481 and R v Lifchus [1997] 3 SCR 320, on the presumption innocence. The appellant also addressed the Court on both the legal burden and standard of proof and relied on Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14 and the decision of the United States Supreme Court in Re Winship 397 US 358 [1970], at pages 361-64
[5] Based on the above authorities, the appellant submitted that it was incumbent upon the state to establish and prove the 2 offences laid in the Charge Sheet filed before the lower court beyond reasonable doubt. He posited that the evidence presented by the state during trial was riddled with inconsistencies and inadequacies, and therefore did not amount to proof to the required standard. The appellant took issue with the fact that his conviction was based on the uncorroborated and unsworn evidence of a minor of tender years. He argued that very young children can be highly influenced by leading questions, trauma, or coaching; such that their memories may be altered or fabricated.
[6] Accordingly, the appellant urged the Court to re-evaluate the evidence adduced before the lower court with reference to all the issues raised in his written submissions and set aside his conviction and sentence.
[7] The record of the proceedings of the Court shows that on the 4 th March 2026, counsel of the respondent had indicated that she had filed written submissions on 28 th August 2025. No such submissions appear on the record, either in the CTS Portal or on the physical court file. Indeed, it is manifest that the appeal had not been admitted to hearing by then and therefore no directions as to admission or disposal of the appeal had been made. I take it that no submissions were filed in opposition to the appeal.
[8] I have given careful consideration to the appeal and taken into account the written submissions filed herein by the appellant. I am mindful that, in a first appeal such as this, the Court is under obligation to evaluate for itself the evidence adduced before the lower court and come to its own conclusions thereon. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa held that:
"An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination ... and to the appellate court's own decision on the whole evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions...It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusion; 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 also Reuben Ombura Muma & Another vs. Republic [2018] eKLR)
[9] I have consequently perused and considered the evidence presented before the lower court. The respondent called five witnesses. The complainant testified as PW3. She identified the appellant as his father and stated that on the 5 th February 2021 she was at home with the father; and that the mother had gone to the market. She stated that her father put her on the bed and defiled her and that she felt pain and cried. She added that out of fear she could not report the incident to the mother that day, but did so the following day. She was taken to hospital by the mother after a report was made to the police.
[10] Nelson Waka ( PW1) was then attached to Ndhiwa Sub County Hospital. He testified that he examined the minor herein on the 7 th February 2021 and filled a P3 Form in that regard. The minor had allegedly been defiled by a person known to her. He noted that her pant was bloodstained. He also noted that she had difficulty in walking. He was of the opinion that the girl was aged about 6 years and noted that she had marked lacerations at hymen at 6 o’clock and also at labia majora at 6 o’clock and was bleeding from posterior vulva.
[11] Further tests conducted revealed that the girl was HIV+ and was accordingly put on post-exposure prophylactic treatment. The appellant was also examined and found to be HIV+. PW1 therefore formed the opinion that the minor had been defiled. He produced the P3 Forms for both the minor and the appellant, PRC Form for the minor and the treatment notes he made as exhibits before the lower court.
[12] Rose Nyaolo (PW2), the Assistant Chief for Kasirime Kawanga, testified that she knew both the appellant and his wife as residents within her sub location.
[13] The minor’s mother, I A, testified as PW4. She confirmed that the minor is her second born daughter. She also testified that the appellant is her husband and that of her four children only the last born is the appellant’s biological child. PW4 further stated that on the 5 th February 2021, she went to the market and left the minor and her 3 siblings under the care of the appellant. She further stated that when she returned home at 7.00 p.m. she found the minor crying. She added that the minor refused to eat and complained of a headache.
[14] The following morning she noted that the girl was experiencing pain while urinating and when she asked her what was wrong, she told her that she was feeling pain in her vagina and revealed that the appellant had inserted his penis in her vagina. She observed the girl’s genitalia and noted that she was bleeding heavily and yet was not old enough to have her menses. She thereafter caused the matter to be reported to the police and thereafter took the minor to hospital.
[15] PC Emily Musyoka (PW5) a police officer based at Ndhiwa Police Station confirmed that a report of incest was made at their Station and was investigated by PC Belinda Okanga . She merely produced the witness statement made by PC Okanga before the lower court as an exhibit and conceded that she played no role in the investigation of the matter.
[16] In his defence, the appellant conceded that the minor is his step-daughter but not his biological child. He further stated that he got married to the minor’s mother. PW4, in December 2018. He testified that they only cohabited for two months and separated in February 2019. He contended that PW4 was arrested for having stolen a goat on 2 nd February 2021 and that he left her and her children in the hands of the area chief and even gave the chief money for PW4’s fare to her parents’ home. The appellant therefore denied the allegations that he had defiled PW3.
[17] The appellant called his father, Kilemes Ochieng Awuor (DW2) as his witness and his father reiterated the assertion that the appellant was falsely accused of defilement. He told the lower court that when PW4 was arrested on 5 th February 2021 for stealing a goat, they followed up the matter with the appellant to no avail. He added that they had to release the minor to PW4 because the child was too young to be separated from the mother. He concluded his evidence by stating that he was surprised to see the appellant arrested on allegations of defilement.
[18] The last defence witness was Mercy Awino Kevin (DW3). She introduced herself as the wife of the appellant. She testified that on the 27 th day of a month could not recall she was with the appellant at Riat when they were informed that her co-wife (PW4) had been arrested by members of the public for stealing a goat. She further stated that the appellant intervened and called the village elder; and that PW4 was handed over to the chief. She added that PW4 returned the following day with police officers and arrested the appellant for allegedly defiling his own daughter.
[19] In cross-examination DW3 alleged that PW4 had cut her daughter’s genitalia with a razor blade and falsely alleged defilement against the appellant in what she believed to be a vengeful attempt to get back at the appellant for their separation. She added that the separation of PW4 from the appellant was occasioned by her arrest for stock theft.
[20] I have given due consideration to the evidence that was presented before the lower court in the light of the appellant’s Grounds of Appeal. Broadly stated, the issue for determination herein is whether the appeal has merit, in terms of both conviction and sentence. In particular, the Court must ascertain whether:
[a] All the elements of the offence of incest with a minor were proved;
[c] Whether the sentence imposed on him by the lower court was warranted.
A. On whether the elements of the Charge of Incest were proved to the requisite standard:
[21] The substantive charge against the appellant was laid under Section 20(1) of the Sexual Offences Act , which stipulates that:
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it 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.”
[22] The offence entails 4 different elements, namely, the age of the victim; penetration; the identity of the offender and lastly, the relationship between the offender and the victim. That proof of age of a victim of defilement is imperative cannot be overemphasized. The Court of Appeal restated as much in Kaingu Kasomo v Republic Criminal Appeal No. 504 of 2010 thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[23] At to what amounts to credible evidence, Rule 4 of the Sexual Offences Rules of Court Rules provides that:
"When determining the age of a person, the 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."
[24] It is also trite that, in addition to the documents set out in Rule 4 above, the age of a minor for purposes of the Sexual Offences Act can also be proved by the oral evidence of the minor’s mother, by way of age assessment, as well as by observation and common sense. Hence, in P M M v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[25] In this instance, the learned magistrate relied on the evidence of the minor as well as the evidence of the clinical officer. That evidence was to the effect that the minor was 6 years old at the material time. Her mother, PW4, did not specifically mention the date of birth or age of the minor but pointed out that she was too young to experience menstrual flow. She also stated that her follower was 3 years old at the time.
[26] As there was no contention over the age of the minor, it is my finding that credible evidence was placed before the lower court to demonstrate that the minor was then 6 years old. It is notable that for purposes of the offence of incest, it suffices that the minor’s age be under 18 years . Moreover, Section 20(1) provides that:
Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years , the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
[27] In the premises, it is my finding that credible evidence was presented before the lower court proving beyond reasonable doubt that the complainant herein was under the age of 18 years and therefore a child for the specific purposes of the proviso to Section 20(1) of the Sexual Offences Act. The perceived variance referred to by the appellant between the evidence of the complainant and the age stated in the particulars of the substantive charge is therefore inconsequential.
[28] On penetration, although the sole evidence was that of the complainant, her evidence required no corroboration because the proviso to Section 124 is explicit 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.”
[29] In addition to the evidence of PW3, her mother testified as PW4 as to her countenance when she returned home on the 5 th February 2021 and what she noticed the following day. She also noted that the girl’s pant was bloodstained. In addition, PW1 examined her the following day and noted that she had lacerations in her genitalia which extended to the labia minora . It is therefore my finding that penetration was proved beyond reasonable doubt. I find highly improbable that PW4 would deliberately cause her daughter pain in the manner alluded to by DW3.
[30] As to the identity of the offender, again the evidence of the complainant, that the appellant is her step-father, was conceded to by the appellant and his two witnesses. Indeed, in Section 22 of the Sexual Offences Act, the test of relationship is set out as hereunder:
(1) In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half-father and an uncle of the first degree and a mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not.
(2) In this Act—
(a) "uncle" means the brother of a person's parent and "aunt" has a corresponding meaning;
(b) "nephew" means the child of a person's brother or sister and "niece" has a corresponding meaning;
(c) "half-brother" means a brother who shares only one parent with another;
(d) "half-sister" means a sister who shares only one parent with another; and
(e)"adoptive brother" means a brother who is related to another through adoption and "adoptive sister" has a corresponding meaning.
(3) An accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.
[31] In sum, it is my finding that all the ingredients of the offence of incest as levelled against the appellant were proved before the lower court to the requisite standard; and therefore the appellant’s conviction cannot be faulted.
C. On whether the Sentence of life imprisonment was warranted in the circumstances:
[32] I have given consideration to the life sentence meted out on the appellant, bearing in mind the reiteration by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, that:
“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .”
[33] The Judiciary Sentencing Guidelines, 2023 at Paragraph 4.5 on Determination of the Sentence provide:
4.5.1 In determining the appropriate sentence, courts must assess a number of issues starting with the degree of both culpability and harm.
4.5.2 The assessment of culpability will be based on evidence of the crime provided through testimony where a trial has been conducted, or, where a plea is entered, through the prosecution summary of facts. Aggravating and mitigating features surrounding the offence may be advanced by the prosecution and the accused person (or his/her representative).
4.5.3 Where an offence is committed by more than one offender a court shall ascertain the culpability of each of the offenders involved and render individual sentences commensurate to their involvement in the offence.
4.5.4 The assessment of harm may be based on testimony, or the summary of facts presented and also by a victim impact statement where that has been obtained.
4.5.5 Mitigating factors refers to any fact or circumstance that lessens the severity or culpability of a criminal act and can also include the personal circumstances of the offender.
4.5.6 Convicted offenders should be expressly provided with the opportunity to present submissions in mitigation.
4.5.7 A list of aggravating and mitigating circumstances – which is not exhaustive – is contained within the GATS along with those specific to murder, manslaughter, and wildlife cases, in Part V.
4.5.8 Having heard all relevant submissions and considered any reports advanced by either prosecution or defence, or the probation or children’s officer (where applicable), and any victim impact statement, the court should:
i. Decide as to whether a custodial or a non-custodial sentence should be imposed in line with these guidelines.
ii. In the case of sexual offences, before the terms of a custodial sentence are determined, the court must have recourse to relevant probation reports as required in sections 39 (2) and (4) of the Sexual Offences Act No.3 of 2006 that contain provisions about post-penal supervision of dangerous sexual offenders. (emphasis added)
[34] It is therefore essential that at the sentencing hearing, care be taken by trial courts to appraise culpability and harm based on the evidence or facts presented, taking into account any aggravating or mitigating circumstances. The Guidelines also require that the offender be allowed to mitigate, and that a consideration be given to all relevant reports before an appropriate sentence can be determined. In sexual offences, the court must also review the Section 39(4) reports before setting the custodial term and/or prescribing post-penal supervision.
[35] In this matter, the sentencing hearing was held on the 19 th February 2025. The lower court noted what the appellant had to say in mitigation and proceeded to impose the sentence of life imprisonment in accordance with Section 20(1) of the Sexual Offences Act. The appellant was therefore not given a chance to present his mitigation.
[36] It is evident therefore that the trial court refrained from exercising its discretion on sentencing and proceeded on the basis that the proviso to Section 20(1) of the Sexual Offences Act entails a mandatory sentence of life imprisonment. That was an erroneous approach and the Court of Appeal has pronounced itself severally on the matter. For instance, in M K v Republic [2015] KECA 468 (KLR) the Court of Appeal held:
“…18. The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20 (1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life.
19. What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya -v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “ shall be liable on conviction to suffer death ” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James -v- Young 27 Ch. D. at p.655 where North J. said:
“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.
We consider such to be the correct approach to the construction of the words “shall be liable on conviction to suffer death: especially when contrasted with the words of s.184 which are “shall be sentenced to death”.
20. On our part, we contrast the wordings in Section 8 (2) of the Sexual Offences Act with the proviso in Section 20 (1) of the said Act. The contrast will shed light as to whether the sentence in the proviso to Section 20 (1) is minimum and mandatory or otherwise. Section 8 (2) provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. The proviso in Section 20 (1) provides that the accused shall be liable to imprisonment for life.
21. Guided by the decision in Opoya -v- Uganda (1967) EA 752 and the persuasive dicta of North J. in James -v- Young 27 Ch. D. at p.655 ; we are satisfied that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20 (1) we hereby state that the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment…” (emphasis supplied)
[37] It is therefore my considered finding that the learned magistrate proceeded on the wrong principle by holding that Section 20(1) prescribes life imprisonment. Nevertheless, considering the finding that the minor was at a tender age of 6 years and was found to have been infected with HIV it is my finding that the sentence was deserved.
[38] In the result, while I find no merit in the appeal. The same is hereby dismissed.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 14 TH DAY OF AUGUST 2026