'
(Being an Appeal against conviction and sentence in Makueni Magistrates Courts S.O No. E005 of 2024 delivered on 2/06/2024 by Hon. P.N Gesora (CM).
The appellant was charged with the offence of Incest contrary to Section 201(1) of the Sexual Offences Act No. 3 of 2006 and faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 6 of 2006 .
The particulars of the offence are that, under the main charge: on the months of September 2023, October 2023 and November 2023 at Itangini Market Kilala Location, within Kaiti Sub-County in Makueni County, the appellant intentionally and unlawfully penetrated the vagina of SM with his penis, who was to his knowledge his daughter.
The appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars being that on the months of September 2023, October 2023 and November 2023 at Itangini Market, Kilala Location, Kaiti Sub-County within Makueni County, the appellant intentionally and unlawfully touched the vagina of SM, a child aged 14 years, with his penis.
The 2 nd accused in the file before the Magistrate Court was Diana Kalekye, who was charged and convicted of the offence of Neglect of a Child Contrary to Section 152(1)(a) of the Children Act. The particulars being that on the months between September, 2023 and January, 2024 at Itangini Market in Kilala Location within Makueni County, the 2 nd accused wilfully abandoned three children, namely SM aged 14 years, TN aged 8 years and EM aged 11 years, causing unnecessary suffering, including failure to attend school and exposure to sexual assaults. The 2 nd accused was convicted and sentenced to two years’ probation.
The two counts were presented in a single charge sheet due to their interrelation as suggested by the evidence provided.
The current appeal is filed by Musee Ndambuki, the 1 st accused in the lower court case.
Following the trial, the appellant was found guilty on the main charge of Incest contrary to Section 20 (1) of the Sexual Offences Act and sentenced to fifteen years of imprisonment. Dissatisfied with both the conviction and the sentence, he has chosen to pursue this appeal.
The appeal was canvassed by way of submission.
The appellant submitted that the language used by the prosecution witnesses, especially the complainant, lacked clarity and precision to substantiate the charges against him.
He submitted that there was also no evidence to support proof of blood relationship. Further, there was no certainty about the victim''s age, and his right to a fair trial had been infringed because he had not been provided with the witness statements and legal representation.
The respondent submitted that the appellant was afforded a fair trial. Further, that the ingredients of the offence the appellant was convicted of had been proved beyond reasonable doubt.
Analysis and determination
12. As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate Court as follows:-
“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 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 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.”
13. Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial Court, and the written submissions filed by the parties. I have also read the judgment of the trial Court.
14. I find that the issues for determination are;
Whether the appellant was afforded a fair trial;
Whether the prosecution established the charges brought against the Appellant to the required standard of proof beyond any reasonable doubt,
Whether the conviction was safe, and whether the sentence was appropriate or excessive.
15. The charge sheet listed only one child as the victim, but the evidence appeared to suggest three children as victims. The three medical examination reports and post-rape care forms pertain to three different children. Besides SM (complainant as per the charge sheet), there was also EM, who testified as PW3. The prosecution informed the court of their intention to amend the charge on 27 th February, 2024, but there is nothing on the record to show that this was eventually carried out. The prosecution appears to have chosen to proceed as is, even after the Medical Officer’s testimony and the production of medical examination reports.
16. The circumstances of this case are that the intervention said to have rescued the children took place in January 2024, whereas the incidents complained of are reported to have occurred in September, October, and November 2023.
17. Article 50 (2) of the Constitution provides for Right to fair trial;
(2) Every accused person has the right to a fair trial, which includes the right-
(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
(n) not to be convicted for an act or omission that at the time it was committed or omitted was not--
(i) an offence in Kenya; or
(ii) a crime under international law;
(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
(3) If this Article requires information to be given to a person, the information shall be given in language that the person understands.
18. The petition of appeal indicates that statements were not made available. The record does not show whether witness statements were provided to the appellant. The record indicates that, although the prosecution confirmed its readiness to proceed, no response was ever recorded from the appellant regarding his readiness throughout the hearings. The witnesses’ testimonies were recorded immediately after the prosecution confirmed they were ready.
19. Additionally, there is no evidence that the appellant was informed of his right to legal representation.
20. On 27 th February, 2024, the appellant informed the court that he did not understand the charges against him. Despite this, the trial court took no action at that time to ask the appellant whether the charges needed to be read afresh or to ensure that they were read to him after his remark. The appellant expressed this remark again on 11 th June, 2024.
21. For the offense of incest to suffice, there must be proof beyond reasonable doubt of either ‘the commission of an indecent act or penetration’. Section 20(1) of the Sexual Offences Act No. 3 of 2006 which is titled “incest by male persons”, provides as follows;
“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.” (emphasis is mine)
23. The prosecution was therefore duty-bound to prove that an act of penetration was committed or an indecent act committed, the offender knew that the victim was a relative, and, for purposes of sentencing, the age of the victim is relevant.
24. The age of the complainant was proven through an age assessment report. This was sufficient; the complainant was a minor.
25. The relationship between the child and the appellant was also established; the appellant is the stepfather. He was married to the 2 nd Accused, Diana Kalekye, who is the complainant’s mother, and was living with the complainant and her siblings as their parent. It qualifies the test of relationship under Section 22 of the Sexual Offences Act.
26. Penetration is defined by Section 2 of the Sexual Offences Act as;
“…..the partial or complete insertion of the genital organs of a person into the genital organs of another.”
27. On the elements of penetration, the appellant submitted that the language used by the prosecution witnesses, especially the complainant, lacked clarity and precision to substantiate the charges against him.
28. PW 1 stated as follows;
“The accused 1 started holding us. My mother used to work in a bar.
Accused 1 used to remove my clothes. He would undress and defile me. We used to stay in a one bedroom house, and it had two beds. He used to come to my bed and do it.”
29. In cross-examination, she did not give an account of what exactly happened. In re-examination, she stated, “after the act we moved”. PW3, similarly, did not provide an account of what he called defile.
30. The trial court, in convicting the appellant and his co-accused, based its decision on the testimony of the complainant Minor, whose evidence on penetration was only the conclusory phrase, ‘he defiled me. ’ Due to the lapse of time, medical evidence was unavailable.
31. This Court cannot determine whether there was any specific identification of the genitalia or anus at the time of testimony. Minors, due to their age, are vulnerable witnesses and may use euphemisms when testifying. The exact words used must be recorded. The prosecution must carefully balance: they need to probe enough to obtain the necessary specificity to satisfy statutory requirements, but must also avoid leading questions to maintain admissibility.
32. While Section 124 of the Evidence Act allows for a conviction based solely on uncorroborated testimony, a conviction is not safe when the sole testimonial evidence is vague on the elements of the sexual offence charge.
33. The absence of a detailed account of the alleged act undermines the Accused’s right to challenge the evidence presented, as protected under Article 50 (2) (k).) He maintained that he did not understand the charge.
34. While the Court has a legitimate interest in protecting children from sexual molestation, this imperative cannot override the constitutional rights of the Accused to a fair trial based on sufficient evidence.
35. In the paragraphs preceding the analysis of the element of penetration, the Court examined the procedural aspects, indicating that the appellant was also not afforded a fair trial.
36. The conviction was not safe on the main charge of incest, nor can the evidence hold on the alternative charge of committing an indecent act with a child. Accordingly, I quash the conviction and set aside the sentence of the trial Court. The appeal is allowed, and the appellant shall be set free unless otherwise lawfully held.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 17 TH NOVEMBER, 2025
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant - Beryl
Appellant- Present
Mr. Kazungu, ODPP
'
(Being an Appeal against conviction and sentence in Makueni Magistrates Courts S.O No. E005 of 2024 delivered on 2/06/2024 by Hon. P.N Gesora (CM).
The appellant was charged with the offence of Incest contrary to Section 201(1) of the Sexual Offences Act No. 3 of 2006 and faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 6 of 2006 .
The particulars of the offence are that, under the main charge: on the months of September 2023, October 2023 and November 2023 at Itangini Market Kilala Location, within Kaiti Sub-County in Makueni County, the appellant intentionally and unlawfully penetrated the vagina of SM with his penis, who was to his knowledge his daughter.
The appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars being that on the months of September 2023, October 2023 and November 2023 at Itangini Market, Kilala Location, Kaiti Sub-County within Makueni County, the appellant intentionally and unlawfully touched the vagina of SM, a child aged 14 years, with his penis.
The 2 nd accused in the file before the Magistrate Court was Diana Kalekye, who was charged and convicted of the offence of Neglect of a Child Contrary to Section 152(1)(a) of the Children Act. The particulars being that on the months between September, 2023 and January, 2024 at Itangini Market in Kilala Location within Makueni County, the 2 nd accused wilfully abandoned three children, namely SM aged 14 years, TN aged 8 years and EM aged 11 years, causing unnecessary suffering, including failure to attend school and exposure to sexual assaults. The 2 nd accused was convicted and sentenced to two years’ probation.
The two counts were presented in a single charge sheet due to their interrelation as suggested by the evidence provided.
The current appeal is filed by Musee Ndambuki, the 1 st accused in the lower court case.
Following the trial, the appellant was found guilty on the main charge of Incest contrary to Section 20 (1) of the Sexual Offences Act and sentenced to fifteen years of imprisonment. Dissatisfied with both the conviction and the sentence, he has chosen to pursue this appeal.
The appeal was canvassed by way of submission.
The appellant submitted that the language used by the prosecution witnesses, especially the complainant, lacked clarity and precision to substantiate the charges against him.
He submitted that there was also no evidence to support proof of blood relationship. Further, there was no certainty about the victim''s age, and his right to a fair trial had been infringed because he had not been provided with the witness statements and legal representation.
The respondent submitted that the appellant was afforded a fair trial. Further, that the ingredients of the offence the appellant was convicted of had been proved beyond reasonable doubt.
Analysis and determination
12. As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate Court as follows:-
“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 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 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.”
13. Guided by the above principle, I have carefully considered the grounds of appeal, the evidence presented before the trial Court, and the written submissions filed by the parties. I have also read the judgment of the trial Court.
14. I find that the issues for determination are;
Whether the appellant was afforded a fair trial;
Whether the prosecution established the charges brought against the Appellant to the required standard of proof beyond any reasonable doubt,
Whether the conviction was safe, and whether the sentence was appropriate or excessive.
15. The charge sheet listed only one child as the victim, but the evidence appeared to suggest three children as victims. The three medical examination reports and post-rape care forms pertain to three different children. Besides SM (complainant as per the charge sheet), there was also EM, who testified as PW3. The prosecution informed the court of their intention to amend the charge on 27 th February, 2024, but there is nothing on the record to show that this was eventually carried out. The prosecution appears to have chosen to proceed as is, even after the Medical Officer’s testimony and the production of medical examination reports.
16. The circumstances of this case are that the intervention said to have rescued the children took place in January 2024, whereas the incidents complained of are reported to have occurred in September, October, and November 2023.
17. Article 50 (2) of the Constitution provides for Right to fair trial;
(2) Every accused person has the right to a fair trial, which includes the right-
(a) to be presumed innocent until the contrary is proved;
(b) to be informed of the charge, with sufficient detail to answer it;
(c) to have adequate time and facilities to prepare a defence;
(d) to a public trial before a court established under this Constitution;
(e) to have the trial begin and conclude without unreasonable delay;
(f) to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed;
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
(i) to remain silent, and not to testify during the proceedings;
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
(l) to refuse to give self-incriminating evidence;
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
(n) not to be convicted for an act or omission that at the time it was committed or omitted was not--
(i) an offence in Kenya; or
(ii) a crime under international law;
(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted;
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
(3) If this Article requires information to be given to a person, the information shall be given in language that the person understands.
18. The petition of appeal indicates that statements were not made available. The record does not show whether witness statements were provided to the appellant. The record indicates that, although the prosecution confirmed its readiness to proceed, no response was ever recorded from the appellant regarding his readiness throughout the hearings. The witnesses’ testimonies were recorded immediately after the prosecution confirmed they were ready.
19. Additionally, there is no evidence that the appellant was informed of his right to legal representation.
20. On 27 th February, 2024, the appellant informed the court that he did not understand the charges against him. Despite this, the trial court took no action at that time to ask the appellant whether the charges needed to be read afresh or to ensure that they were read to him after his remark. The appellant expressed this remark again on 11 th June, 2024.
21. For the offense of incest to suffice, there must be proof beyond reasonable doubt of either ‘the commission of an indecent act or penetration’. Section 20(1) of the Sexual Offences Act No. 3 of 2006 which is titled “incest by male persons”, provides as follows;
“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.” (emphasis is mine)
23. The prosecution was therefore duty-bound to prove that an act of penetration was committed or an indecent act committed, the offender knew that the victim was a relative, and, for purposes of sentencing, the age of the victim is relevant.
24. The age of the complainant was proven through an age assessment report. This was sufficient; the complainant was a minor.
25. The relationship between the child and the appellant was also established; the appellant is the stepfather. He was married to the 2 nd Accused, Diana Kalekye, who is the complainant’s mother, and was living with the complainant and her siblings as their parent. It qualifies the test of relationship under Section 22 of the Sexual Offences Act.
26. Penetration is defined by Section 2 of the Sexual Offences Act as;
“…..the partial or complete insertion of the genital organs of a person into the genital organs of another.”
27. On the elements of penetration, the appellant submitted that the language used by the prosecution witnesses, especially the complainant, lacked clarity and precision to substantiate the charges against him.
28. PW 1 stated as follows;
“The accused 1 started holding us. My mother used to work in a bar.
Accused 1 used to remove my clothes. He would undress and defile me. We used to stay in a one bedroom house, and it had two beds. He used to come to my bed and do it.”
29. In cross-examination, she did not give an account of what exactly happened. In re-examination, she stated, “after the act we moved”. PW3, similarly, did not provide an account of what he called defile.
30. The trial court, in convicting the appellant and his co-accused, based its decision on the testimony of the complainant Minor, whose evidence on penetration was only the conclusory phrase, ‘he defiled me. ’ Due to the lapse of time, medical evidence was unavailable.
31. This Court cannot determine whether there was any specific identification of the genitalia or anus at the time of testimony. Minors, due to their age, are vulnerable witnesses and may use euphemisms when testifying. The exact words used must be recorded. The prosecution must carefully balance: they need to probe enough to obtain the necessary specificity to satisfy statutory requirements, but must also avoid leading questions to maintain admissibility.
32. While Section 124 of the Evidence Act allows for a conviction based solely on uncorroborated testimony, a conviction is not safe when the sole testimonial evidence is vague on the elements of the sexual offence charge.
33. The absence of a detailed account of the alleged act undermines the Accused’s right to challenge the evidence presented, as protected under Article 50 (2) (k).) He maintained that he did not understand the charge.
34. While the Court has a legitimate interest in protecting children from sexual molestation, this imperative cannot override the constitutional rights of the Accused to a fair trial based on sufficient evidence.
35. In the paragraphs preceding the analysis of the element of penetration, the Court examined the procedural aspects, indicating that the appellant was also not afforded a fair trial.
36. The conviction was not safe on the main charge of incest, nor can the evidence hold on the alternative charge of committing an indecent act with a child. Accordingly, I quash the conviction and set aside the sentence of the trial Court. The appeal is allowed, and the appellant shall be set free unless otherwise lawfully held.
It is so ordered.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 17 TH NOVEMBER, 2025
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant - Beryl
Appellant- Present
Mr. Kazungu, ODPP
'