'
(Being an appeal from the conviction and sentence delivered by Hon. R.N Nganga, Senior Resident Magistrate on 16th February 2023 in Gatundu Criminal S.O No. E011 of 2022)
JUDGMENT
1.The Appellant being dissatisfied with the decision of the trial court which convicted and sentenced him to life imprisonment for the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006, has lodged this appeal.
2.The appeal is premised on the following amended grounds of appeal where the Appellant contends that the learned Trial Magistrate erred in law and fact by;
a. failing to find that the charge sheet was defective, as it did not specify the date the alleged offence committed;
b. failing to find that the inconsistencies and discrepancies in the evidence made it difficult to believe PW1 was defiled by the appellant;
c. failing to find that the prosecution did not prove its case beyond reasonable doubt as the evidence presented in court was not enough to sustain a conviction.
Background
3.The Appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between November 2021 to March 2022 at Mutomo village, Gatundu South Sub-County within Kiambu County, he intentionally caused his penis to penetrate the vagina of one F.W.G who was to his knowledge his step daughter.
4. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.The particulars were that on diverse dates between November 2021 to March 2022 in at Mutomo village, Gatundu South Sub-County within Kiambu County, he intentionally and unlawfully touched the vagina of a child F.W.G a child aged 8 years.
5.The Appellant pleaded not guilty and the trial commenced with the prosecution calling five (5) witnesses. When put on his defence, the Appellant gave his testimony but called no witness.
Case before the trial court
6. FWG, the victim, testified as PW1. She stated that she was born on 6th May 2010 and was 12 years old. That she used to live with her mother, father (the Appellant) and grandmother. That their house had 2 bed rooms, and she would sleep in one while her parents slept in the other. She further stated that she could not recall the exact date and time, but it was in the morning when the Appellant took her to bed, removed her clothes, then his and started doing her. She stated that “álinifanya tabia mbaya, alini rape alitoa ile kitu ya boys ya hapa mbele akaingisha hapa mbele ya kususu. Alafu akasema anaskia vizuri.” That she screamed and mama Gloria and Uncle Njoroge came. She further stated that the Appellant cautioned her not to tell anyone, and threatened to beat her with a pipe, if she did. That despite the threats, she told many people including Cucu Gloria, Mama Gloria and teacher Bilha.
7. PW1 also testified that on another day, while leaving school, she met an elderly lady namely Mary Nyakinyi Njau (PW2). PW2 invited her to her home and PW1 started staying with her and would go there after school. PW1 eventually disclosed what had transpired to PW2. That PW2 did not say anything but took her to Gatundu Hospital for medical attention.
8.PW2 Mary Nyakinyi Njau, stated that she got to know PW1 from school. That in April 2021 at about 6.20am she found PW1 on the road and followed her out of concern as she did not have a sweater and it was cold, and had torn plastic shoes. She gave her tea and food to carry to school and their friendship began. That a teacher later informed her that PW1 had been telling pupils in her class that she had been defiled by her father. She also stated that PW1 told her that on the day they met she had slept outside because her father had defiled her. She reported the incident to the Chief. They took the child to Gatundu Level 5 Hospital where they found she had infections in the spine and was treated. Later they reported to the Police.
9. PW3 Salome Nyambura Gathua, assistant Chief Mutomo Sub Location stated that on 14th March 2022 at around 3pm she received a report from a village elder that there is a girl aged 10 years had allegedly been defiled by her step father. On 16th March 2022 they took the girl to hospital where she was examined and confirmed to have been defiled. The report was made at Gatundu Police Station, and the on 25th March 2022, the Appellant was then arrested.
10.PW4 PC Fredia Kabiyes the Investigating Officer stated that on 1th March 2022 he received a sexual offence complaint. That the victim explained that her parents had separated and she remained in the custody of the Appellant. The victim explained that the Appellant defiled her severally. She specifically, recalled the incident of 11th March 2022 when the Appellant found her in the bedroom folding clothes, he told her to lie down facing up. He also removed his clothes and inserted his penis into her vagina. She was cautioned but she reported to her grandmother who promised to take action. The victim was treated at Gatundu Level 5, the age assessment report was done and indicated the victim to be between 10-11 years.
11.PW5 Dr. Wangui testified on behalf of Dr. Wainaina who had since left the facility. She stated that she was familiar with Dr Wainaina’s hand writing and she presented the medical findings. She stated that the dental assessment indicated the victim was approximately 11 years old. PW1 reported that her stepfather had been defiling her for one and half years from January 2021 and that her mother was mentally unstable. That the most recent incident happened on 11th March 2022 and she went to the facility on 16th March 2022. She reported pain during urination, she had abrasion (small tear) on the Labia minora, the hymen was broken, she was sent to the laboratory there were no pus cells. PW5 produced the PRC Form as Exhibit 1; P3 Form as Exhibit 2; Treatment notes as Exhibit 3 and the Lab Request as Exhibit 4 .
12. Upon considering the prosecution evidence, the trial court found that the prosecution had established a prima facie case and placed the Appellant on his defence.
13. In his defence, the Appellant gave unsworn testimony and stated that he was married and had 2 daughters and a son. He acknowledged the complainant as his step daughter and he has been providing for her. He stated that he was jailed in 2021 for six months for the offence of assault, during that time the complainant was taken by Mary Nyakinyi. He also stated that the complainant could not state the date and time of the alleged incident, and she never reported the matter to the mother. She only told PW2 who never witnessed. He denied the allegations and emphasized that the victim was his child and he could never defile his child.
The appeal
14.The Appeal was canvassed by way of written submissions. The Appellant’s submissions were dated 26th June 2024, while the Respondent’s submissions were dated 19th August 2024.
Appellant’s submission
15.The Appellant set out the background of the case and urged the Court to allow the appeal and set aside the sentence. He urged that the charge sheet was defective, since it did not specify the exact date of the alleged offence and it did not reflect the period during which he was living with PW1 and the mother. He submitted that a charge must contain sufficient detail that would enable an accused person to prepare and put an appropriate defence. Reference was made to section 134 of the Criminal Procedure Code as well as the Court of Appeal cases of Isaac Omambia v Republic (1995) eKLR; Tongo vs Republic (1983) eKLR; Benard Otubuna vs Republic (2019)eKLR.
16.He further urged that discrepancies between the dates in the charge sheet and in the prosecution’s evidence rendered the charge sheet in question defective. He claimed that during the period referenced in the charge sheet, he was not living with the complainant, making it difficult to defend himself against the charges.
17.On inconsistencies and discrepancies, the Appellant submitted that the prosecution’s evidence was riddled with contradictions and inconsistencies in the evidence. He noted that PW1 never stated the specific dates of the alleged defilement by the Appellant; the incident allegedly occurred on on 11th March 2021 yet at this time the Appellant was not staying with the complainant as per the record; the Appellant pointed out the following as discrepancies; PW2 stated that she met PW1 in April 2021 and that is when she was told by PW1 how her step father defiled her. PW3 was informed about the incident a year later, after PW1 had moved from where she was allegedly to have been defiled by her father; PW4 stated that the defilement started one and a half years ago that is from January 2021, and continued upto 11th March 2022, 5 days after the alleged incident.
18.The Appellant also faulted the prosecution for failing to call crucial witnesses namely mama Gloria and Njoroge who heard PW1 scream and came to her aid. He argued that their testimony would have been crucial in corroborating the prosecution case.
19.As to whether the prosecution proved the case beyond reasonable doubt, the Appellant contended that the prosecution did not place him at the scene of crime. He claimed that he was in custody in April 2021 and that the allegations were made by PW2 and PW3 to portray him as an irresponsible parent. He questioned why the matter was reported nine months after the incident.
Respondent submissions
20.In response, the Respondent opposed the appeal. They submitted that the charge sheet was not defective as it clearly indicated that the offence occurred on diverse dates between November 2021 and 11th March 2022. The prosecution witnesses testified as to the events that took place between the dates indicated in the charge sheet.
21.They urged the Court to dismiss the ground relating to inconsistencies, arguing that there were no contradictions nor inconsistencies in the evidence. They maintained that all prosecution witnesses corroborated each other and that the prosecution proved its case beyond reasonable doubt.
22.As to whether the Appellant is the father of the complainant, it was stated that the complainant identified the Appellant as her father, the Appellant also admitted that he is married to the mother of the complainant and he exercised parental responsibility over the complainant who had even assumed his surname. Thus, they urged that the Appellant is a parent loco parenties, though a step father.
23.On penetration, it was urged that the evidence of the complainant, the doctor and medical documents all confirmed that there was defilement. Further that the complainant was aged 11 and the age assessment report was produced as evidence to prove the age of the complainant at the time of the offence.
24.On identification, it was submitted that the Appellant is well known to the complainant, he was married to her mother and lived under the same roof, a fact not disputed. Moreover, the complainant identified the Appellant in court as the person who defiled her, thus there was no possibility of mistaken identity.
25.In conclusion the Respondent urged the Court to find that they had discharged their burden of proof, as none of the evidence was discredited during cross examination hence the appeal lacks merit.
Analysis and Determination
26.This being a first appeal, this Court has a duty to re-c0nsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusions. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. (See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009, David Njuguna Wairimu v. Republic [2010] eKLR).
27.Upon considering the Trial Court record, the memorandum of appeal and the submissions on record, the issues arising for determination are;
a. Whether the charge sheet was defective;
b. Whether the offence of incest was proved; and
c. Whether there were inconsistencies and contradictions in the prosecution’s evidence.
(a) Whether the charge sheet was defective.
28.The Appellant argues that the charge sheet was defective for failing to specify the exact date of the alleged offence and that it did not reflect the period during which he was living with the complainant and her mother.
29.Outrightly, the law on a defective chargesheet is that not all alleged defects and/or errors are fatal as to render a chargesheet defective. The defect should be material enough as to cause prejudice to the accused person. In particular the alleged defect/error, where proved, should go to the core of the offence so that one is not able to understand with precision, what offence he is being called upon to defend himself/herself against. I hasten to add that indeed specificity in time and dates may be very critical in some occasions to the extend that they must be precisely set out in the particulars of the charge as they go to the defence of alibi that an accused person may raise.
30.The particulars of the offence as contained in the charge sheet where that: on diverse dates between November 2021 to March 2022 at Mutomo village, Gatundu South Sub-County within Kiambu County, he intentionally caused his penis to penetrate the vagina of one F.W.G who was to his knowledge his step daughter. The charge sheet did not give any particular date but stated the offence happened between November 2021 and March 2022 a defined window period within which the alleged offence is said to have occurred. Was this sufficient enough?
31.The courts have consistently held that a charge sheet need not contain an exact date if the offence occurred over a period of time and that the accused is not prejudiced in mounting a defence. In Isaac Omambia v Republic [1995] eKLR, the Court of Appeal held that:
“A charge is not necessarily defective simply because the date of the offence is not precisely stated, provided the accused is able to understand the nature of the charge and prepare a defence.”
32.Similarly, in Akolon v Republic (Criminal Appeal E010 of 2024) [2024] KEHC 7987 (KLR) (21 June 2024) (Judgment), it was held as follows:
“16. The Court of Appeal in Yongo v Republic [1983] KLR, 319 held that a charge is defective when it gives a misdescription of the alleged offence in its particulars. Said the court:
“In our opinion a charge is defective under Section 214(1) of the Criminal Procedure Code where:
a. It does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; or
b. It does not, for such reasons, accord with the evidence given at the trial; or
c. It gives a misdescription of the alleged offence in its particulars.”
33.A perusal of the trial record shows that from the particulars of the offence, the Appellant was well informed that he was being accused of having committed the offence of incest on DIVERSE dates between November 2021 and March 2022. Outrightly, this is a specific period that was stated. The prosecution was then to prove that during this period, the offence occurred, while the Appellant only bore the onus of demonstrating that during this period he was infact not at the scene or that he did not commit the offence with which he was accused of. I find that the Appellant was in fact well informed of the charges upon him and the dates upon which the alleged offence occurred to the extent that he raised an alibi defence by alleging that during that period, for some 6 months, he was in custody and that at some period he was not leaving with the complainant. The fact that the chargesheet stated a period, to wit, “on diverse dates between November 2021 and March 2022” and that the Appellant raised an alibi defence, does not render the chargesheet defective.
34. It is not enough for the Appellant to state that he was prejudiced by a defective charge sheet without stating how he was prejudiced or showing how the information on the chargesheet hindered his ability to defend himself. The upshot is that I find this ground without merit and it fails.
(b) Whether the offence of incest was proved
35.To prove a case of incest, the prosecution must establish three crucial ingredients: the age of the complainant, the aspect of penetration, and the relationship between the victim and perpetrator. (See BKM v Republic (Criminal Appeal 64 of 2018) [2023] KEHC 23271 (KLR) (4 October 2023) (Judgment)).
36.The age of the victim is central in proving incest as it determines the sentence that one may be given upon conviction. Section 20(i) of Sexual Offence Act provides thus: -
“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."
37.Notably, in this appeal, the age of the complainant is not in issue. The complainant, testified that she was born on 6th may 2010 and was 12 years old. The age assessment done by PW5 indicated that the victim was around 11 years old. It is accepted that age may be proved in various ways. In Bosco Rioba Nyaitika v Republic [2021] eKLR, it was stated, thus: “Age can be proved by a doctor, documentary evidence like by a birth certificate, birth notification or through oral evidence of people who know the person well for example a mother or a guardian.” Hence, her age was below eighteen years for purposes of section 20(1) of the Act.
38. On prove of the relationship between the Appellant and the victim, again, this Court notes that the same is not contested. The complainant identified the Appellant as her father, and the Appellant also admitted that he is married to the mother of the complainant and he exercised parental responsibility upon the complainant who had even assumed his surname.
39.Turning to the issue of penetration, this has to be examined in two ways. First is whether the complainant was penetrated; and secondly, whether indeed the Appellant has been identified as the person who penetrated the victim. Notably, the issue whether the victim was penetrated is not contested in this appeal. Be that as it may, the testimony of PW1 that the Appellant took her to bed, removed her clothes, then his and started doing bad behaviour to her, to wit “alinifanya tabia mbaya, alini rape alitoa ile kitu ya boys ya hapa mbele akaingisha hapa mbele ya kususu. Alafu akasema anaskia vizuri.” is evidence enough of penetration. This evidence was not controverted by the defence. PW1 was also not adjudged as someone lying and her evidence was credible. Further, the evidence of the the other witnesses, particularly that of PW5 who gave the medical evidence confirmed that the victim had been penetrated between the alleged period.
40.This brings us to the second aspect of penetration whether indeed it was the Appellant that had penetrated her. I have examined the record before me. It is common ground that the Appellant lived with the complainant and he was thus a person known to her. Consequently, the identification of the Appellant by the complainant was by way of recognition and not that of identification of a stranger. PW1 in her testimony clearly identified the Appellant as the person who defiled her. PW2 stated that PW1 disclosed to her that her step father, had defiled her on that day they met in the morning. PW3 testified that she was informed that a girl aged 10 years (the complainant) had been defiled by the step father. All through, the said step-father turned out to be a reference to the Appellant and at no time was it ever suggested in evidence that there was another, third party, who was the step further being referred to. I find that the last aspect of identity of the perpetrator was well proved. Consequently, on this issue, I find that the prosecution proved its case to required standard that the Appellant indeed penetrated and defiled the complainant, hence committing the offence of incest.
(c)Whether there were inconsistencies and contradictions in the prosecution’s evidence.
41. Alleging contradictions, the Appellant took issue with the dates stated as when the incident happened. That PW1 never stated the specific dates of the alleged offence. Further, that the incident allegedly occurred on 11th March 2021 yet at this time he was in prison and that the allegations were made by PW2 and PW3 to portray him as an irresponsible parent.
42.In determining whether the chargesheet was defective, I have already determined that there was no contradiction in the dates. The offence happened over a period of time. It was on diverse dates between November 2021 and March 2022. This time stated in the chargesheet does not contradict with any date given by the prosecution witnesses. All witnesses stated a date which falls within the period stated in the chargesheet. PW1 did not give a specific date. This is not however fatal, given her age. Her evidence has then to be taken in totality with other evidence. PW1 stated that he met PW1 in April 2021 and their friendship began. That was not when PW1 told her that she had been defiled. A teacher would later tell PW2 that PW1 has been telling pupils that the father had defiled her. Hence, I find no contradiction in PW2’s testimony.
43. Taken in its totality, the incident of 11th March 2022 was the last incident that broke the camel’s back and exposed the Appellant. While the Appellant stated that he was in prison for 6 months during 2021, I find that that alibi was well dislodged by the prosecution evidence. First, it is trite that the accused person bears no responsibility to prove his/her alibi. However, it is always prudent that the same be raised early enough to accord the prosecution an opportunity to rebut.
44. In this case, the Appellant’s alibi was weighed alongside the totality of the prosecution’s evidence and dismissed. The charge referred to the period between November 2021 to March 2022. Hence, his alibi of 6 months in 2021 does not cover the entire period. He did not state which specific six months in 2021 he was in custody for this Court to consider it against the prosecution’s evidence.
45. Ultimately, I find that there were no material contradictions in the prosecution case that rendered the conviction fatal. I dismiss this ground of appeal.
46. Consequently, the appeal is dismissed in its entirety for lack of merit.
Orders accordingly.
'
(Being an appeal from the conviction and sentence delivered by Hon. R.N Nganga, Senior Resident Magistrate on 16th February 2023 in Gatundu Criminal S.O No. E011 of 2022)
JUDGMENT
1.The Appellant being dissatisfied with the decision of the trial court which convicted and sentenced him to life imprisonment for the offence of Incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006, has lodged this appeal.
2.The appeal is premised on the following amended grounds of appeal where the Appellant contends that the learned Trial Magistrate erred in law and fact by;
a. failing to find that the charge sheet was defective, as it did not specify the date the alleged offence committed;
b. failing to find that the inconsistencies and discrepancies in the evidence made it difficult to believe PW1 was defiled by the appellant;
c. failing to find that the prosecution did not prove its case beyond reasonable doubt as the evidence presented in court was not enough to sustain a conviction.
Background
3.The Appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between November 2021 to March 2022 at Mutomo village, Gatundu South Sub-County within Kiambu County, he intentionally caused his penis to penetrate the vagina of one F.W.G who was to his knowledge his step daughter.
4. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.The particulars were that on diverse dates between November 2021 to March 2022 in at Mutomo village, Gatundu South Sub-County within Kiambu County, he intentionally and unlawfully touched the vagina of a child F.W.G a child aged 8 years.
5.The Appellant pleaded not guilty and the trial commenced with the prosecution calling five (5) witnesses. When put on his defence, the Appellant gave his testimony but called no witness.
Case before the trial court
6. FWG, the victim, testified as PW1. She stated that she was born on 6th May 2010 and was 12 years old. That she used to live with her mother, father (the Appellant) and grandmother. That their house had 2 bed rooms, and she would sleep in one while her parents slept in the other. She further stated that she could not recall the exact date and time, but it was in the morning when the Appellant took her to bed, removed her clothes, then his and started doing her. She stated that “álinifanya tabia mbaya, alini rape alitoa ile kitu ya boys ya hapa mbele akaingisha hapa mbele ya kususu. Alafu akasema anaskia vizuri.” That she screamed and mama Gloria and Uncle Njoroge came. She further stated that the Appellant cautioned her not to tell anyone, and threatened to beat her with a pipe, if she did. That despite the threats, she told many people including Cucu Gloria, Mama Gloria and teacher Bilha.
7. PW1 also testified that on another day, while leaving school, she met an elderly lady namely Mary Nyakinyi Njau (PW2). PW2 invited her to her home and PW1 started staying with her and would go there after school. PW1 eventually disclosed what had transpired to PW2. That PW2 did not say anything but took her to Gatundu Hospital for medical attention.
8.PW2 Mary Nyakinyi Njau, stated that she got to know PW1 from school. That in April 2021 at about 6.20am she found PW1 on the road and followed her out of concern as she did not have a sweater and it was cold, and had torn plastic shoes. She gave her tea and food to carry to school and their friendship began. That a teacher later informed her that PW1 had been telling pupils in her class that she had been defiled by her father. She also stated that PW1 told her that on the day they met she had slept outside because her father had defiled her. She reported the incident to the Chief. They took the child to Gatundu Level 5 Hospital where they found she had infections in the spine and was treated. Later they reported to the Police.
9. PW3 Salome Nyambura Gathua, assistant Chief Mutomo Sub Location stated that on 14th March 2022 at around 3pm she received a report from a village elder that there is a girl aged 10 years had allegedly been defiled by her step father. On 16th March 2022 they took the girl to hospital where she was examined and confirmed to have been defiled. The report was made at Gatundu Police Station, and the on 25th March 2022, the Appellant was then arrested.
10.PW4 PC Fredia Kabiyes the Investigating Officer stated that on 1th March 2022 he received a sexual offence complaint. That the victim explained that her parents had separated and she remained in the custody of the Appellant. The victim explained that the Appellant defiled her severally. She specifically, recalled the incident of 11th March 2022 when the Appellant found her in the bedroom folding clothes, he told her to lie down facing up. He also removed his clothes and inserted his penis into her vagina. She was cautioned but she reported to her grandmother who promised to take action. The victim was treated at Gatundu Level 5, the age assessment report was done and indicated the victim to be between 10-11 years.
11.PW5 Dr. Wangui testified on behalf of Dr. Wainaina who had since left the facility. She stated that she was familiar with Dr Wainaina’s hand writing and she presented the medical findings. She stated that the dental assessment indicated the victim was approximately 11 years old. PW1 reported that her stepfather had been defiling her for one and half years from January 2021 and that her mother was mentally unstable. That the most recent incident happened on 11th March 2022 and she went to the facility on 16th March 2022. She reported pain during urination, she had abrasion (small tear) on the Labia minora, the hymen was broken, she was sent to the laboratory there were no pus cells. PW5 produced the PRC Form as Exhibit 1; P3 Form as Exhibit 2; Treatment notes as Exhibit 3 and the Lab Request as Exhibit 4 .
12. Upon considering the prosecution evidence, the trial court found that the prosecution had established a prima facie case and placed the Appellant on his defence.
13. In his defence, the Appellant gave unsworn testimony and stated that he was married and had 2 daughters and a son. He acknowledged the complainant as his step daughter and he has been providing for her. He stated that he was jailed in 2021 for six months for the offence of assault, during that time the complainant was taken by Mary Nyakinyi. He also stated that the complainant could not state the date and time of the alleged incident, and she never reported the matter to the mother. She only told PW2 who never witnessed. He denied the allegations and emphasized that the victim was his child and he could never defile his child.
The appeal
14.The Appeal was canvassed by way of written submissions. The Appellant’s submissions were dated 26th June 2024, while the Respondent’s submissions were dated 19th August 2024.
Appellant’s submission
15.The Appellant set out the background of the case and urged the Court to allow the appeal and set aside the sentence. He urged that the charge sheet was defective, since it did not specify the exact date of the alleged offence and it did not reflect the period during which he was living with PW1 and the mother. He submitted that a charge must contain sufficient detail that would enable an accused person to prepare and put an appropriate defence. Reference was made to section 134 of the Criminal Procedure Code as well as the Court of Appeal cases of Isaac Omambia v Republic (1995) eKLR; Tongo vs Republic (1983) eKLR; Benard Otubuna vs Republic (2019)eKLR.
16.He further urged that discrepancies between the dates in the charge sheet and in the prosecution’s evidence rendered the charge sheet in question defective. He claimed that during the period referenced in the charge sheet, he was not living with the complainant, making it difficult to defend himself against the charges.
17.On inconsistencies and discrepancies, the Appellant submitted that the prosecution’s evidence was riddled with contradictions and inconsistencies in the evidence. He noted that PW1 never stated the specific dates of the alleged defilement by the Appellant; the incident allegedly occurred on on 11th March 2021 yet at this time the Appellant was not staying with the complainant as per the record; the Appellant pointed out the following as discrepancies; PW2 stated that she met PW1 in April 2021 and that is when she was told by PW1 how her step father defiled her. PW3 was informed about the incident a year later, after PW1 had moved from where she was allegedly to have been defiled by her father; PW4 stated that the defilement started one and a half years ago that is from January 2021, and continued upto 11th March 2022, 5 days after the alleged incident.
18.The Appellant also faulted the prosecution for failing to call crucial witnesses namely mama Gloria and Njoroge who heard PW1 scream and came to her aid. He argued that their testimony would have been crucial in corroborating the prosecution case.
19.As to whether the prosecution proved the case beyond reasonable doubt, the Appellant contended that the prosecution did not place him at the scene of crime. He claimed that he was in custody in April 2021 and that the allegations were made by PW2 and PW3 to portray him as an irresponsible parent. He questioned why the matter was reported nine months after the incident.
Respondent submissions
20.In response, the Respondent opposed the appeal. They submitted that the charge sheet was not defective as it clearly indicated that the offence occurred on diverse dates between November 2021 and 11th March 2022. The prosecution witnesses testified as to the events that took place between the dates indicated in the charge sheet.
21.They urged the Court to dismiss the ground relating to inconsistencies, arguing that there were no contradictions nor inconsistencies in the evidence. They maintained that all prosecution witnesses corroborated each other and that the prosecution proved its case beyond reasonable doubt.
22.As to whether the Appellant is the father of the complainant, it was stated that the complainant identified the Appellant as her father, the Appellant also admitted that he is married to the mother of the complainant and he exercised parental responsibility over the complainant who had even assumed his surname. Thus, they urged that the Appellant is a parent loco parenties, though a step father.
23.On penetration, it was urged that the evidence of the complainant, the doctor and medical documents all confirmed that there was defilement. Further that the complainant was aged 11 and the age assessment report was produced as evidence to prove the age of the complainant at the time of the offence.
24.On identification, it was submitted that the Appellant is well known to the complainant, he was married to her mother and lived under the same roof, a fact not disputed. Moreover, the complainant identified the Appellant in court as the person who defiled her, thus there was no possibility of mistaken identity.
25.In conclusion the Respondent urged the Court to find that they had discharged their burden of proof, as none of the evidence was discredited during cross examination hence the appeal lacks merit.
Analysis and Determination
26.This being a first appeal, this Court has a duty to re-c0nsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusions. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. (See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009, David Njuguna Wairimu v. Republic [2010] eKLR).
27.Upon considering the Trial Court record, the memorandum of appeal and the submissions on record, the issues arising for determination are;
a. Whether the charge sheet was defective;
b. Whether the offence of incest was proved; and
c. Whether there were inconsistencies and contradictions in the prosecution’s evidence.
(a) Whether the charge sheet was defective.
28.The Appellant argues that the charge sheet was defective for failing to specify the exact date of the alleged offence and that it did not reflect the period during which he was living with the complainant and her mother.
29.Outrightly, the law on a defective chargesheet is that not all alleged defects and/or errors are fatal as to render a chargesheet defective. The defect should be material enough as to cause prejudice to the accused person. In particular the alleged defect/error, where proved, should go to the core of the offence so that one is not able to understand with precision, what offence he is being called upon to defend himself/herself against. I hasten to add that indeed specificity in time and dates may be very critical in some occasions to the extend that they must be precisely set out in the particulars of the charge as they go to the defence of alibi that an accused person may raise.
30.The particulars of the offence as contained in the charge sheet where that: on diverse dates between November 2021 to March 2022 at Mutomo village, Gatundu South Sub-County within Kiambu County, he intentionally caused his penis to penetrate the vagina of one F.W.G who was to his knowledge his step daughter. The charge sheet did not give any particular date but stated the offence happened between November 2021 and March 2022 a defined window period within which the alleged offence is said to have occurred. Was this sufficient enough?
31.The courts have consistently held that a charge sheet need not contain an exact date if the offence occurred over a period of time and that the accused is not prejudiced in mounting a defence. In Isaac Omambia v Republic [1995] eKLR, the Court of Appeal held that:
“A charge is not necessarily defective simply because the date of the offence is not precisely stated, provided the accused is able to understand the nature of the charge and prepare a defence.”
32.Similarly, in Akolon v Republic (Criminal Appeal E010 of 2024) [2024] KEHC 7987 (KLR) (21 June 2024) (Judgment), it was held as follows:
“16. The Court of Appeal in Yongo v Republic [1983] KLR, 319 held that a charge is defective when it gives a misdescription of the alleged offence in its particulars. Said the court:
“In our opinion a charge is defective under Section 214(1) of the Criminal Procedure Code where:
a. It does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; or
b. It does not, for such reasons, accord with the evidence given at the trial; or
c. It gives a misdescription of the alleged offence in its particulars.”
33.A perusal of the trial record shows that from the particulars of the offence, the Appellant was well informed that he was being accused of having committed the offence of incest on DIVERSE dates between November 2021 and March 2022. Outrightly, this is a specific period that was stated. The prosecution was then to prove that during this period, the offence occurred, while the Appellant only bore the onus of demonstrating that during this period he was infact not at the scene or that he did not commit the offence with which he was accused of. I find that the Appellant was in fact well informed of the charges upon him and the dates upon which the alleged offence occurred to the extent that he raised an alibi defence by alleging that during that period, for some 6 months, he was in custody and that at some period he was not leaving with the complainant. The fact that the chargesheet stated a period, to wit, “on diverse dates between November 2021 and March 2022” and that the Appellant raised an alibi defence, does not render the chargesheet defective.
34. It is not enough for the Appellant to state that he was prejudiced by a defective charge sheet without stating how he was prejudiced or showing how the information on the chargesheet hindered his ability to defend himself. The upshot is that I find this ground without merit and it fails.
(b) Whether the offence of incest was proved
35.To prove a case of incest, the prosecution must establish three crucial ingredients: the age of the complainant, the aspect of penetration, and the relationship between the victim and perpetrator. (See BKM v Republic (Criminal Appeal 64 of 2018) [2023] KEHC 23271 (KLR) (4 October 2023) (Judgment)).
36.The age of the victim is central in proving incest as it determines the sentence that one may be given upon conviction. Section 20(i) of Sexual Offence Act provides thus: -
“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."
37.Notably, in this appeal, the age of the complainant is not in issue. The complainant, testified that she was born on 6th may 2010 and was 12 years old. The age assessment done by PW5 indicated that the victim was around 11 years old. It is accepted that age may be proved in various ways. In Bosco Rioba Nyaitika v Republic [2021] eKLR, it was stated, thus: “Age can be proved by a doctor, documentary evidence like by a birth certificate, birth notification or through oral evidence of people who know the person well for example a mother or a guardian.” Hence, her age was below eighteen years for purposes of section 20(1) of the Act.
38. On prove of the relationship between the Appellant and the victim, again, this Court notes that the same is not contested. The complainant identified the Appellant as her father, and the Appellant also admitted that he is married to the mother of the complainant and he exercised parental responsibility upon the complainant who had even assumed his surname.
39.Turning to the issue of penetration, this has to be examined in two ways. First is whether the complainant was penetrated; and secondly, whether indeed the Appellant has been identified as the person who penetrated the victim. Notably, the issue whether the victim was penetrated is not contested in this appeal. Be that as it may, the testimony of PW1 that the Appellant took her to bed, removed her clothes, then his and started doing bad behaviour to her, to wit “alinifanya tabia mbaya, alini rape alitoa ile kitu ya boys ya hapa mbele akaingisha hapa mbele ya kususu. Alafu akasema anaskia vizuri.” is evidence enough of penetration. This evidence was not controverted by the defence. PW1 was also not adjudged as someone lying and her evidence was credible. Further, the evidence of the the other witnesses, particularly that of PW5 who gave the medical evidence confirmed that the victim had been penetrated between the alleged period.
40.This brings us to the second aspect of penetration whether indeed it was the Appellant that had penetrated her. I have examined the record before me. It is common ground that the Appellant lived with the complainant and he was thus a person known to her. Consequently, the identification of the Appellant by the complainant was by way of recognition and not that of identification of a stranger. PW1 in her testimony clearly identified the Appellant as the person who defiled her. PW2 stated that PW1 disclosed to her that her step father, had defiled her on that day they met in the morning. PW3 testified that she was informed that a girl aged 10 years (the complainant) had been defiled by the step father. All through, the said step-father turned out to be a reference to the Appellant and at no time was it ever suggested in evidence that there was another, third party, who was the step further being referred to. I find that the last aspect of identity of the perpetrator was well proved. Consequently, on this issue, I find that the prosecution proved its case to required standard that the Appellant indeed penetrated and defiled the complainant, hence committing the offence of incest.
(c)Whether there were inconsistencies and contradictions in the prosecution’s evidence.
41. Alleging contradictions, the Appellant took issue with the dates stated as when the incident happened. That PW1 never stated the specific dates of the alleged offence. Further, that the incident allegedly occurred on 11th March 2021 yet at this time he was in prison and that the allegations were made by PW2 and PW3 to portray him as an irresponsible parent.
42.In determining whether the chargesheet was defective, I have already determined that there was no contradiction in the dates. The offence happened over a period of time. It was on diverse dates between November 2021 and March 2022. This time stated in the chargesheet does not contradict with any date given by the prosecution witnesses. All witnesses stated a date which falls within the period stated in the chargesheet. PW1 did not give a specific date. This is not however fatal, given her age. Her evidence has then to be taken in totality with other evidence. PW1 stated that he met PW1 in April 2021 and their friendship began. That was not when PW1 told her that she had been defiled. A teacher would later tell PW2 that PW1 has been telling pupils that the father had defiled her. Hence, I find no contradiction in PW2’s testimony.
43. Taken in its totality, the incident of 11th March 2022 was the last incident that broke the camel’s back and exposed the Appellant. While the Appellant stated that he was in prison for 6 months during 2021, I find that that alibi was well dislodged by the prosecution evidence. First, it is trite that the accused person bears no responsibility to prove his/her alibi. However, it is always prudent that the same be raised early enough to accord the prosecution an opportunity to rebut.
44. In this case, the Appellant’s alibi was weighed alongside the totality of the prosecution’s evidence and dismissed. The charge referred to the period between November 2021 to March 2022. Hence, his alibi of 6 months in 2021 does not cover the entire period. He did not state which specific six months in 2021 he was in custody for this Court to consider it against the prosecution’s evidence.
45. Ultimately, I find that there were no material contradictions in the prosecution case that rendered the conviction fatal. I dismiss this ground of appeal.
46. Consequently, the appeal is dismissed in its entirety for lack of merit.
Orders accordingly.
'