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JudgmentMARTIN NJUE MWANIKI VS The Republic14 min read

MARTIN NJUE MWANIKI VS The Republic

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. S.Ouko (SRM) in Runyenjes Sexual Offence No. E017 of 2022 delivered on 30th November 2022)


  1. This is an appeal arising from the abovementioned decision. The appellant has filed a petition of appeal dated 09th October 2024 seeking that the appeal be allowed, conviction be quashed, sentence be aside and the appellant be set at liberty, on the following grounds:
    1. That he pleaded not guilty at the trial;
    2. That the learned trial magistrate erred in law by failing to record reasons for believing a single witness contrary to section 124 of the Evidence Act;
    3. That the learned trial magistrate erred in law by failing to warn herself of the dangers of relying on a single witness
    4. That the learned trial magistrate erred in law by convicting the appellant against the weight of the evidence whereas the prosecution failed to prove its case beyond reasonable doubt;
    5. That the learned trial magistrate erred in law by rejecting the appellant’s defense which was plausible;
    6. That the learned trial magistrate erred in law by failing to consider that there was a grudge between the appellant and the chief, which grudge led to him being framed for the offence.
  2. The appellant faced 2 counts. The first count was the offence of incest contrary to section 20 as read together with section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on diverse dates between 6th, 11th August and 21st September 2022 during the night at Ugweri village, Ugweri sub-location within Embu County, the appellant, being a male person, caused his penis to penetrate the vagina of TNM a female person aged 13 years, who is to his knowledge, his daughter.
  3. He also faced the alternative charge to the first count, being committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars for the alternative charge are that on diverse dates between 6th, 11th August and 21st September 2022 during the night at Ugweri village, Ugweri sub-location within Embu County, the appellant caused his penis to touch the vagina of TNM, a child aged 13 years.
  4. The second count was assault causing bodily harm contrary to section 251 of the Penal Code whose particulars are that on 23rd September 2022, at Ugweri village, Ugweri sub-location within Embu County, the appellant willfully and unlawfully assaulted TNM thereby occasioning her actual bodily harm.
  5. The appellant pleaded not guilty and a plea of not guilty was duly entered for each count. The prosecution called witnesses in support of its case.
  6. PW1 was Dennis Mwenda, a clinician at Runyenjes Hospital. He testified that he examined the victim who told him that she had been forced to have sex with her father 3 times. That her clothes and beddings were blood stained and the first time it happened was on 20th September 2022. That the victim had a 7 day old cut on her hand and it was measuring 5cm. Upon examining her private parts, he observed that the victim’s hymen was broken, a sign of defilement. That there was fibrotic tissue, a sign of healing of tissue and the labia was swollen and had scars. He observed that a test on the epithelial cells showed friction in the vagina and there were pus cells, showing presence of an infection. That the victim had been treated at Ugweri and Runyenjes hospitals and he categorized the injuries as grievous harm. He produced the treatment notes, P3 and PRC forms as evidence. On cross-examination, he stated that the appellant was escorted to hospital by a police officer and a DNA sample was collected but he did not know where the sample was taken afterwards.
  7. PW2 was the victim who stated that she lived with her father and brother after her mother left in 2021. That her father had another wife but at the time of the incident, she was away working in Meru. She stated that she was at home playing outside with other children when the appellant called her to run an errand and she told him to send her brother. That the appellant got upset and when she went to the house, he made her to lie down he removed her clothes and then defiled her. That she felt pain and she bled a lot. She stated that the appellant repeated this defilement on 21st, 23rd and 26th September 2022 and on that last day, he cut her hand with a panga for failing to cover the porridge she was cooking. That she sought treatment for the cut and on 28th September, she was going to Ugweri for dressing of her wound when the chief pulled her aside to talk to her. That he called her grandmother and they went to Runyenjes hospital where she was examined and treated and the matter was reported at the police station.
  8. PW3 was JM, PW2’s 9 year-old brother who stated that he slept on the floor on a separate mattress and PW2 would sleep on another mattress. He recalled when the appellant told PW2 to make porridge and he became angry and cut her hand as he watched. That PW2 was treated at a hospital in Ugweri. He stated that many times, they all slept together but he did not know what happened. That they never went to school but since they started living with their grandmother, they go to school.
  9. PW4 was TN, the victim’s grandmother who stated that she lives with PW2 and PW3 who had previously been taken by their mother when she left but they returned on their own. That she was attending kesha all week and she heard someone at church asking how PW2 had injured her hand. That the following day, the area chief told her that he has a case with the appellant and when the appellant went to water miraa, the chief tried to talk to him but he brushed him off and left. That she went with the chief and found PW2 at his place and they reported the matter to the police. That PW2 spoke with a police officer and she was escorted to the hospital. She stated that later when she went to see the living conditions of the appellant and the children, she found that there was one mattress on the floor and a pile of clothes that was used as the other mattress.
  10. PW5 was Daniel Ndwiga, Chief of Kaagari South who stated that a good Samaritan had called to inform him that a girl was being treated at the hospital in Ugweri. That he went to the facility and found PW2 whom she had seen at the facility before. PW2 told her that the appellant had cut her with a panga and he had been defiling her. He stated that he called PW4 and told her to go to Runyenjes Police Station and the appellant was arrested.
  11. PW6 was PC Wambui Agnes of Runyenjes Police Station who stated that she was testifying on behalf of CPL Mary Mbogo who was away on maternity leave. She stated that the incident was reported at the station on 26th September 2022 by PW4 and the appellant was arrested and charged. That statements were recorded on the same day.
  12. At the end of the prosecution’s case, the court found that the appellant had a case to answer and he was placed on his defense.
  13. DW1, the appellant, stated that she was not at home on any of the days when he reportedly defiled the minor since he was digging a borehole at Ugweri dispensary. About the cut on PW2’s hand, he stated that she was cutting firewood when she cut herself and since he was working, he was not around to take her to the hospital. He denied having committed the offence and stated that when he tried to explain the matter to the police officers, they told him to tell the court his side of the story. He stated that he has always disagreed with his mother over a land dispute and that he has been to prison because of that. That his mother, PW4 coached the children to testify against him in court. 
  14. The trial magistrate found the appellant guilty of both counts and sentenced him to 10 years imprisonment on the first count and 3 years imprisonment on the second count.
  15. In this appeal, the court directed the parties to file their written submissions and they complied.
  16. The appellant, in his submissions, argued that the victim lied in her testimony which was coached. That the testimony of PW3 was a lie because it was not possible that he was defiling PW2 without PW3 knowing or telling PW4. He took issue with the fact that the investigating officer went on maternity leave thus she did not have enough time to investigate and PW6 did not visit the scene. He stated that he was arrested on the same day that the report was made and statements were recorded thus the matter was not investigated. That he was not at home on the days of the alleged defilement and that the case is a frame up. 
  17. The respondent submitted that the offence of incest was proved according to section 20(1) of the Sexual Offences Act and the case of DMK v. Republic (2022) eKLR where the elements of the offences were enumerated. That the prosecution witnesses proved that indeed the appellant is the father of the victim. On identification of the appellant as the assailant, it placed reliance on the principles laid down in the case of Reuben Taabu Anjononi & 2 others v. Republic (1980) eKLR and argued that the appellant was properly identified given that he is the father of the complainant.
  18. It was its argument that the element of penetration was proved according to the testimony of PW1 as corroborated by that of PW4. That the age of the victim was established and she was found to be a minor. Reliance was placed on the case of Kaingu Elias Kasomo v. Republic Criminal Appeal No. 504 of 2010 (unreported). Further reliance was placed on the cases of Bakari Ndoro v. Republic (2016) eKLR and Edwin Nyambogo Onsongo v Republic (2016) eKLR and Francis Omuromi v. Uganda, Court of Appeal Criminal Appeal no. of 2000.
  19. On the second count, it relied on sections 2 and 251 of the Penal Code and the cases of Chelangat v. Republic (2021) eKLR and Johnson Silvano Mkirani v. Republic (2021) eKLR. It argued that the appellant’s defense was a mere denial of the charges and the trial court analysed that defense and found that it did not have merit. It was the respondent’s submission that the sentences meted out to the appellant were not harsh or excessive and it relied on the cases of Republic v. Nicholas Wambogo (2022) eKLR and Shadrack Kipkoech Kogo v. Republic Criminal Appeal No. 253 of 2003. It urged the court to dismiss the appeal.
  20. From a perusal of the petition of appeal and submissions, it is my view that the issues for determination are as follows:
    1. Whether the 2 counts were proved beyond reasonable doubt; and
    2. Whether the sentences imposed should be set aside.  
  21. It is the role of the first appellate court to review the evidence at trial and reach its own conclusion. These were the sentiments of the Court of Appeal in the case of Okeno vs. Republic [1972] EA 32 I agree with the court when it held:

“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 the appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. It must make its own finding and draw its own conclusions only then can it decide whether the magistrate’s finding 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.”

  1. Under section 20(1) of the Sexual Offences Act, the offence of incest exists when any male person 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. First of all, the appellant herein is the father of the victim. For the offence of incest to be proved, there must be:

1.  An indecent act or an act that causes penetration;

2. The victim must be a female person who is related to the perpetrator in the degrees set out in Section 22 of the Act.

Section 22 states as follows:

“(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) ………..

(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.

(4) In cases where the accused person is a person living with the complainant in the same house or is a parent or guardian of the complainant, the court may give an order removing the accused person from the house until the matter is determined and the court may also give an order classifying such a child as a child in need of care and protection and may give further orders under the Children Act (No. 8 of 2001).”

  1. Section 2 of the Children Act defines a parent as the mother or father or any person who is conferred parental rights by the law. Parental responsibility was conferred upon the appellant by virtue of the fact that he is the biological father of the victim. The law required him to protect the victim and put her best interests before anything else. PW2, PW3, PW4 and DW1 stated that the appellant was married to the children’s mother but she left in 2021 with the victim and her brother but they later returned to the appellant. There is no doubt that the appellant is the biological father of the victim.
  2. Penetration as defined under Section 2 of the Sexual Offences Act, means ‘the partial or complete insertion of the genital organs of a person into the genital organs of another person”. The appellant is alleged to have committed an act which caused penetration of the victim, who is his daughter. From the evidence adduced, PW2 stated that the appellant had sex with her 3 times and she narrated the circumstances under which the multiple incidences of defilement occurred. She stated that the first time, the appellant made her to lie down and he inserted his penis into her vagina. That she felt pain and she saw a lot of blood. The second and third time, it happened at night when he removed her clothes and repeated the heinous act.
  3. The testimony of PW2 was corroborated by that of PW1 who testified that upon examining the victim, he observed that the hymen was broken and the vaginal walls had injuries that were healing. That she also had an infection and there were signs of friction in the vagina. According to the proviso at section 124 of the Evidence Act, the testimony of the victim of a sexual offence is enough to identify the perpetrator and the court must give its reasons for believing the victim.
  4. From a perusal of the judgment, the trial magistrate found that the appellant, who was the father of the victim, knowingly defiled her. She analyzed the alibi defense of the appellant and found no merit in it. She also analyzed the other defenses raised by the appellant and found that there was sufficient reason to hold the appellant responsible for defiling the victim, his biological daughter. In my view, the trial court did, in fact, pay great attention to the evidence of the prosecution and the defense in reaching her findings, with clear reasons indicated in the judgment.
  5. As regards the second count of assault, according to section 251 of the Penal Code, any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years. In the English case of Rex v Donovan (1934) 2KB 498 the court held:

“For this purpose, we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the complainant. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."

  1. Further, in the case of R v Chan-Fook (1994) 2 ALL ER 557, it was held that the meaning of the phrase “actual harm” is to be in its simplest form, thus:

“We consider that the same is true of the phrase "actual bodily harm." These are three words of the English language that receive no elaboration and in the ordinary course should not receive any. The word "harm" is a synonym for injury. The word "actual" indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant."

  1. PW2 testified that on 28th September 2022, she was cooking porridge and she did not cover it. That because of that, the appellant hit her with a panga and it cut her hand. That PW3, her brother gave her a paperbag to tie her bleeding hand with and she sought treatment at Ugweri. PW3 testified that he saw the appellant cutting PW2 with a panga. On these allegations, the appellant had the chance to cross-examine the witnesses but he did not ask them any questions. PW1 noted that at the time of the examination, the victim had a 5cm cut on her hand and it was about 7 days old. In his defense, he also failed to displace this prosecution’s evidence which was overwhelming.
  2. I find that the trial magistrate did not err in convicting the appellant for both offences since they were proved beyond reasonable doubt. On the issue of whether the sentences imposed should be set aside, the Sexual Offences Act prescribes a sentence of not less than 10 years imprisonment for the offence of incest. This is a mandatory minimum sentence and the court applied it as provided in the law. On the 2nd Count, the Penal Code prescribes a sentence of 5 years imprisonment but the trial court sentenced the appellant to 3 years imprisonment. The sentences imposed are fair in the circumstances.
  3. Therefore, I find that the appeal lacks merit and the same is hereby dismissed.
  4. It is so ordered.

Delivered, dated and signed at Embu this 4th day of December, 2024.


    MARTIN NJUE MWANIKI VS The Republic MARTIN NJUE MWANIKI VS The Republic