(Being an appeal against the conviction and sentence by Hon. O.O Koranje (RM) in Mariakani SPM (SO) Case No. E013 of 2023)
1. The appellant herein, Mwatsaka Nyamawi Njemo was charged before the Senior Principal Magistrate’s Court, Mariakani with the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on diverse dates between January 2019 to 26 March 2023 at Nyacha Village, Taru location within Kwale County, being a male person caused his penis to penetrate the vagina of T.N.M a female juvenile aged 13 years who was to his knowledge his daughter.
2. He was also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on diverse dates between January 2019 to 26 March 2023 at Nyacha Village, Taru location within Kwale County, he intentionally and unlawfully touched the vagina of T.N.M with his penis a child aged 13 years.
3. The appellant pleaded not guilty prompting the trial where the prosecution called five (5) witnesses. The prosecution case was that on 27 March 2023 at round 6am, PW3 Mariamu Umazi, the complainant’s aunt noticed that the complainant had not gone to school and walked while limping. She inquired what had happened and the complainant told her that her father, the appellant had had sex with her which made her feel pain on the joints and made it difficult for her to walk. She also told her that was not the first time and the appellant had been having sex with her after every week or two since she was 10 years old. PW3 reported the matter to her husband who advised her to take the complainant to hospital.
4. PW3 stated that she took the complainant to Egu dispensary but they were referred to Samburu Sub-County hospital where PW5 a clinical officer, Mary Mwaka examined the complainant on 28 March 2023 and confirmed that her hymen was broken but not recently. After the confirmation at Samburu Sub - County hospital, the matter was reported to the Samburu police station where PW4 Binti Saudi Sheba investigated the matter, arrested the appellant and charged him with the offence.
5. PW1 the complainant testified that the appellant was her father who got separated with the mother, PW2 Amina Nyanvula Mdoe. That she was living and sleeping with her father in one room. That one night when she was 10 years old, her father who slept on the bed went to the floor where she slept in a mattress, had sex with her by inserting his penis in her vagina and warned her against making any noise or reporting the issue to anyone. This went on until March 2023 when she informed her aunt, PW3.
6. PW2, the complainant’s mother testified that the complainant was her daughter and was born on 28 September 2009 as per her Clinical Card (exhibit 1). She went on to state that she had four (4) children with the appellant including the complainant. That she got separated from the appellant who remained and lived with the children. That one evening, she was called by PW3 who told her that the complainant had been defiled by the appellant. She joined PW3 and the complainant in the hospital and thereafter reported the matter to the police.
7. At the close of the prosecution’s case, the trial court held that a prima facie case had been established and placed the appellant on his defence. The appellant elected to testify on oath where he denied the charges brought against him and testified that the complainant was lying and plotted to have him imprisoned since he had separated with his wife. At the conclusion of the trial, the court delivered judgement where the appellant was found guilty, convicted and sentenced to life imprisonment.
8. Aggrieved, the appellant appealed against the conviction and sentence where he raised the following grounds;
i. The trial court erred in law and fact by convicting the appellant based on evidence that did not meet evidentiary requirements.
ii. The trial court erred in law and fact by relying on the Child Health Clinic Card as evidence of the complainant’s age.
iii. The trial court erred in law and fact by finding that the complainant was a credible witness despite her lies and inconsistencies.
iv. The trial court erred in law and fact by finding that the elements of the offence had been proved beyond reasonable doubt.
v. The trial court erred in law and fact by rejecting the defence of alibi without cogent reasons.
vi. The trial court erred in law and fact by dismissing the appellant’s defence and submissions.
vii. The trial court erred in law and fact by issuing a sentence that was harsh and excessive under the circumstances.
9. The appeal was canvassed by way of written submissions which both parties duly filed. The Appellant was represented by Mr Jimmy Kiseu learned counsel whereas Miss Judy Gachuru learned counsel appeared for the Respondent. The appellant submitted that being the first appellate court, the court is to re-evaluate and analyze the evidence adduced before the trial court and arrive at its own conclusion on whether the evidence supports the finding before the trial court.
10. On penetration as an ingredient of the offence, it was submitted that the trial court erred and misdirected itself by placing reliance of the missing hymen. The case of PKW vs Republic (2012) eKLR where court observed that the absence of hymen alone is not proof of defilement was cited.
11. On the element of identification, it was submitted that the complainant’s testimony was not credible owing to the fact that she failed to report the matter for three years yet she was not threatened by the appellant and despite the fact that during that period she occasionally talked to her mother PW2 on phone and that during examination, she denied having had sexual relationship with one Baraka despite evidence showing the contrary. Reliance was placed on the case of Mercy Chelangat vs Republic (2022) eKLR .
12. It was further submitted that the trial court erroneously failed to consider the evidence tendered in defence where the appellant denied staying with the complainant or any of his other children who were staying with their mother, PW2. He also submitted that trial court failed to consider the fact that the complainant was engaged in sexual relationship with one Baraka. It was further argued that the evidence did not place the appellant on the crime scene.
13. On the sentence, it was contended that life imprisonment was harsh and excessive and that the trial court did not consider the pre-sentence report leading to an erroneous conclusion during sentencing. He urged the court to allow the appeal, and quash the conviction and sentence.
14. The Respondent opposed the appeal and reiterated that the duty of the first appellate court as set out in Odhiambo vs Republic, Cr App No. 280 of 2004 (2005) eKLR. It was submitted that the ingredients of the offence of incest are proof that the offender is a relative of the victim, proof of penetration, identification of the perpetrator and proof of age of the victim. See DMK vs Republic (2022) eKLR.
15. On the first ingredient, it was submitted that PW1, PW2 and the appellant confirmed that the complainant was a daughter of the appellant. On penetration, it was contended that the evidence of PW1 established sexual intercourse and was corroborated by medical evidence presented by PW5. On identification of the perpetrator, it was argued that the complainant positively identified the appellant as her father since she used to sleep in the same room with him. Mwangi vs R (2022) KEHC 11226 (KLR) was cited in support. On age of the victim, it was submitted it can be proved by medical evidence or other cogent evidence as held in Joseph Kiet Seet vs Republic (2014) eKLR and that PW2 produced evidence which showed that the complainant was born on 28 September 2009. The Respondent concluded that all ingredients of the offence were duly proved to the required standards.
16. Regarding the defence of alibi , it was submitted that the appellant did not at any point indicate to the investigating officers or the court during hearing of prosecution witnesses that he was not sleeping with the complainant in the same house. That he did not present evidence to rebut the evidence on PW1 and PW2 on the subject or that the complainant was sleeping in his grandmother’s house as alleged. The case of Karanja vs Republic (1983) KLR 501 was cited in support of the argument that the defence of alibi was not established.
17. On the sentence, the Respondent submitted that the sentence was lawful and proper based on Section 20 (1) of the Sexual offences Act which prescribes life imprisonment for the offence where the victim is under 18 years. It was further submitted that the appellant was not a first offender and had been previously convicted of sodomy in MCSO 648 of 2010 for which he was jailed for 5 years and served the sentence to completion. That the appellant falls under the category of a dangerous sexual offender as provided for under section 39 of the Sexual offences Act. The cases of S vs Malgas (2001) 1 SACR 469 (SCA) and Mwangi vs Republic were cited in support. The court was urged to dismiss the appeal and uphold the conviction and sentence.
Analysis and determination
18. This being the first appeal, the court has a duty to re-evaluate and analyze the evidence adduced before the trial court and arrive at its own independent conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of O iruri Mose Vs Republic (2013) eKLR. The Court of Appeal, in Kiilu & Another Vs Republic [2005]1 KLR 174 , stated thus;
“ 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; 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.”
19. The court has considered the evidence adduced before the trial court, the grounds of appeal and the respective rival submissions and has narrowed the issues for determination to be:
a) Whether the offence of incest was proved.
b) Whether the defence of alibi was duly established appellant
c) Whether the punishment was harsh and excessive.
Whether the offence of incest was proved
20. The appellant was charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006 . The section 20 (1) of the said Act provides: -
“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.”
19. Thus, the specific ingredients of the offence of incest arising from section 20 (1) of the Sexual Offences Act are:
i. Proof that the offender is a relative of the victim.
ii. Proof of penetration or indecent act.
iii. Identification of the perpetrator.
iv. Proof of the age of the victim. see DMK v Republic [2022] KEHC 1754 (KLR).
21. On the first ingredient, the appellant is charged with defiling the complainant T.N M, his daughter. The relationship between the appellant and the complainant falls within the degree of consanguinity listed in Section 20 (1) of the Act. PW1 identified the appellant as her father which was corroborated by PW2 who testified that she was married to the appellant with whom they sired four (4) children including the complainant. PW3 testifiesd that she knows the appellant to be the father of PW1. The appellant also makes reference to the complainant as his daughter. The court finds that the complainant is a daughter of the appellant and this ingredient was proved beyond reasonable doubt.
22. On the second ingredient of penetration, the appellant submitted that penetration was not proved and that the court erred in placing reliance on the medical evidence of a missing hymen as proof of defilement as well as relying on the evidence of PW1, the complainant despite the fact that her testimony was contradictory and full of inconsistencies making her loose credibility. The Respondent contended that the evidence of PW1 established sexual intercourse and was corroborated by medical evidence presented by PW5.
23. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
24. It is now well established that penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. This was the observation, which was correctly made by the trial court while relying on the decision in Bassita Vs Uganda S.C Cr iminal Appeal No. 35 of 1995 . The above position has been restated in many other decisions. In Kassim Ali vs Republic [2006] eKLR, the Court of Appeal observed as follows:
“So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”.
25. PW3 testified that on 27 March 2023 at round 6am, she noticed that the complainant had not gone to school and walked while limping. She inquired what had happened and the complainant told her that her father, the appellant had had sex with her which made her feel pain on the joints and made it difficult for her to walk. She also told her that was not the first time and the appellant had been having sex with her after every week or two since she was 10 years old.
26. PW1 testified that she lived with the appellant and slept in the same room. That since she was 10 years, the appellant started having sex with her on a weekly basis or sometimes after two weeks. She confirmed that on 27 March 2023 she was in pain due to having sex with her father, the appellant the previous night which had affected her walking. Medical examinations conducted by PW5 on 28 March 2023 confirmed that the complainant’s hymen was broken but not freshly broken. This gave credence to the complainant’s testimony. The court has examined the exhibits produced by PW5 and confirms they affirm his testimony.
27. The appellant challenged the credibility of the complainant as stated herein above. The trial court, at page 5 of the record of proceedings, stated thus concerning the complainant; “the court notes the demeanor of the witness. Appears disturbed, shy and reserved but truthful. Tears up as well.”
28. The trial court found the complainant truthful and credible. This court has analyzed the record and does not find any material contradictions or inconsistencies on the part of PW1 or any other prosecution witness. The court further observes that under Section 124 of the Evidence Act, in a sexual offence case, the court can convict an accused based on the sole evidence of the complainant so long as it records the reasons for finding the complainant truthful. The trial court in my view, fully satisfied itself on the proviso under section 124 of the Act and properly convicted the appellant on the basis of the complainant’s testimony. However, in this case, there is sufficient evidence that corroborates the complainant’s testimony.
29. The respondent further submitted that the complainant has been engaging in sexual intercourse with Baraka. However, culpability of the appellant is not affected by the fact that the complainant may have engaged in sexual intercourse with another person. The court finds that this ingredient was proved beyond any reasonable doubt.
30. On the third ingredient of identification, evidence shows that the complainant lived with the appellant who was his father and clearly well known to her. This was corroborated by PW2 and PW3. She, the complainant, identified him as the perpetrator testifying that he has been having sex with her since she was 10 days old. This was corroborated by medical evidence that proved penetration. The court finds that this element was proved beyond reasonable doubt.
31. On proof of age, the appellant faulted the trial court for placing reliance on the Child Health Card to find that this element was proved. It is of utmost importance to prove the age of the victim in a case of incest since sentencing is dependent on the age .
32. In Hadson Ali Mwachongo vs Republic (2016) eKLR , the Court of Appeal held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
33. The age of a victim may be proved in various ways. The Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR stated:
“ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof . We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
34. PW1 testified that she was born on 28 September 2009. This was corroborated by PW2 her mother who also produced the Child Health Card as exhibit 1. That card shows that the complainant was born on 28 September 2009 meaning that she was 13 years by 30 March 2023 when the appellant was arraigned. This court has examined the Child Health card and finds that it contains much more information on immunization, clinic visits and other growth parameters of the child. The appellant did not challenge its authenticity besides pointing out the discrepancies in the names. The court having examined it wholly, finds it credible despite the discrepancies pointed out. Besides, it is not the only evidence that proves the age. The court finds that this ingredient has been proved beyond reasonable doubt.
Whether the defence of alibi was duly established appellant
35. The appellant submitted that the trial court erroneously failed to consider the evidence tendered in defence where the appellant denied staying with the complainant or any of his other children who were staying with their mother, PW2 and faulted the trial court for failing to give credence to the defence of alibi.
36. The court of appeal in Erick Otieno Meda vs Republic (2019) eKLR had this to say on the defence of alibi raised by the accused persons;
a) An alibi needs to be corroborated by the other witnesses and not just a mere regurgitation of the events from the accused point of view.
b) An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination in trial.
c) The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she has presented in court.
d) The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond reasonable doubt so as to allow the alibi to fail.
37. The record shows that the appellant did not raise alibi at any time during the prosecution’s case. This denied the prosecution witnesses an opportunity for rebuttable. Additionally, while the appellant admitted that PW2 left her with three children, including the complainant, he testified that the complainant was sleeping in her grandmother’s house. However, no evidence was provided to support that allegation or rebut the evidence of PW1, PW2 and PW3 that to the effect that PW1 was living in the same house as the appellant.
38. The trial court did not find the appellant credible. The trial court observed as regards the appellant at page 19 of the record of proceedings; “accused demeanor not truthful, he appears to be thinking of the answer and stammers every time he thinks and comes up with an answer.” This court has no reason to doubt that observation. PW1’s evidence on the matter was consistent, cogent and credible. It was corroborated by PW3’s evidence as well as PW2, her mother. The court finds that the defence of alibi was not proved.
Whether the punishment was harsh and excessive
39. Turning on the sentence, the appellant submitted that the sentence meted out by the trial court was harsh and excessive. The learned trial magistrate observed as regards sentencing; “Having considered the matters in mitigation as well as aggravating factors. I note that the complainant in question was 13 years of age and below 18 years of age. The provisions of section 20 (1) provide that the minimum sentence is life imprisonment . ……”
40. It is apparent that the trial court, in awarding the life sentence, based its decision on the understanding that Section 20 (1) of the Sexual Offences Act prescribes a mandatory minimum sentence of life imprisonment where the victim is under 18 years.
41. Section 20 (1) of the Sexual Offences Ac t, provides:
“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.
42. The complainant was aged 13 years at the time of commission of the offence which brings the proviso to the Section into play. The question before court is, does the phrase, “ shall be liable to imprisonment for life” connote a mandatory term of life imprisonment?
43. The court of appeal in GRD vs R (2025) KECA 59 (KLR) had the occasion to consider meaning of Section 20 (1) of the said Act and had this to say;
“ 42. With due respect to the learned Judge, he committed two grave errors. The first error was that he misapprehended the wording of section 20(1) of the Act in holding that where the victim of incest is a child the mandatory sentence is life sentence. We have set section 20(1) of the Act and at the material part it states 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… ”
43. The predecessor of the court (as per Sir Clement DeLestang V.P) in Opoya v Uganda [1967] EA 752 at page 754 expressed itself thus: It seems to us beyond argument that the words “shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it.”
44. The learned Judge in holding that “the section is couched in mandatory terms in regards to the sentence where the victim is a child” fell into error.”
44. The word “ …liable to…imprisonment” or in some cases “not exceeding…” sets out the maximum sentence. In such circumstances by dint of Section 26 (2) of the Penal Code , the court has discretion to impose a sentence shorter than prescribed by the relevant provision.
45. In this case, the court finds that the proviso to the section does not create a mandatory sentence of life imprisonment but sets the ceiling of life imprisonment. That proviso must, however, be read in consonance with the main section that sets a minimum sentence of ten (10) years imprisonment. Consequently, under Section 20 (1) of the Act, the court has a discretion of awarding any sentence above 10 years but not beyond life imprisonment.
46. Having found so, this court will consider whether the sentence of imprisonment is harsh and excessive. The court is alive to the fact that sentencing is an exercise of discretion by the trial court and will not ordinarily be interfered with on appeal except for good reason. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”
47. Based on the trial court’s interpretation of Section 20 (1) of the Act, it is evident that it did not consider the mitigation by the appellant. The trial court thus proceeded on an erroneous interpretation of the law which calls for this court’s interference.
48. Section 354 (3) of the Criminal Procedure Code empowers this court vary a sentence imposed by the trial court. The court has considered the mitigation by the appellant and weighed the same against the aggravating factors including that the appellant is a repeat offender. The court has further taken into account the objectives of punishment which include denunciation for the offence, retribution and rehabilitation.
Final Orders
49. In light of the above, the court makes the following orders: -
i. The appeal against conviction has no merit and is accordingly dismissed.
ii. The appeal against sentence partially succeeds. The sentence of life imprisonment is set aside and substituted with a sentence of twenty (20) years imprisonment.
iii. The sentence shall run from the date of conviction.
50. It is so ordered.
Dated, Signed And Delivered Virtually at Nairobi this 9 th day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Criminal Appeal No. E013 of 20242
1. The appellant herein, Mwatsaka Nyamawi Njemo was charged before the Senior Principal Magistrate’s Court, Mariakani with the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on diverse dates between January 2019 to 26 March 2023 at Nyacha Village, Taru location within Kwale County, being a male person caused his penis to penetrate the vagina of T.N.M a female juvenile aged 13 years who was to his knowledge his daughter.
2. He was also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on diverse dates between January 2019 to 26 March 2023 at Nyacha Village, Taru location within Kwale County, he intentionally and unlawfully touched the vagina of T.N.M with his penis a child aged 13 years.
3. The appellant pleaded not guilty prompting the trial where the prosecution called five (5) witnesses. The prosecution case was that on 27 March 2023 at round 6am, PW3 Mariamu Umazi, the complainant’s aunt noticed that the complainant had not gone to school and walked while limping. She inquired what had happened and the complainant told her that her father, the appellant had had sex with her which made her feel pain on the joints and made it difficult for her to walk. She also told her that was not the first time and the appellant had been having sex with her after every week or two since she was 10 years old. PW3 reported the matter to her husband who advised her to take the complainant to hospital.
4. PW3 stated that she took the complainant to Egu dispensary but they were referred to Samburu Sub-County hospital where PW5 a clinical officer, Mary Mwaka examined the complainant on 28 March 2023 and confirmed that her hymen was broken but not recently. After the confirmation at Samburu Sub - County hospital, the matter was reported to the Samburu police station where PW4 Binti Saudi Sheba investigated the matter, arrested the appellant and charged him with the offence.
5. PW1 the complainant testified that the appellant was her father who got separated with the mother, PW2 Amina Nyanvula Mdoe. That she was living and sleeping with her father in one room. That one night when she was 10 years old, her father who slept on the bed went to the floor where she slept in a mattress, had sex with her by inserting his penis in her vagina and warned her against making any noise or reporting the issue to anyone. This went on until March 2023 when she informed her aunt, PW3.
6. PW2, the complainant’s mother testified that the complainant was her daughter and was born on 28 September 2009 as per her Clinical Card (exhibit 1). She went on to state that she had four (4) children with the appellant including the complainant. That she got separated from the appellant who remained and lived with the children. That one evening, she was called by PW3 who told her that the complainant had been defiled by the appellant. She joined PW3 and the complainant in the hospital and thereafter reported the matter to the police.
7. At the close of the prosecution’s case, the trial court held that a prima facie case had been established and placed the appellant on his defence. The appellant elected to testify on oath where he denied the charges brought against him and testified that the complainant was lying and plotted to have him imprisoned since he had separated with his wife. At the conclusion of the trial, the court delivered judgement where the appellant was found guilty, convicted and sentenced to life imprisonment.
8. Aggrieved, the appellant appealed against the conviction and sentence where he raised the following grounds;
i. The trial court erred in law and fact by convicting the appellant based on evidence that did not meet evidentiary requirements.
ii. The trial court erred in law and fact by relying on the Child Health Clinic Card as evidence of the complainant’s age.
iii. The trial court erred in law and fact by finding that the complainant was a credible witness despite her lies and inconsistencies.
iv. The trial court erred in law and fact by finding that the elements of the offence had been proved beyond reasonable doubt.
v. The trial court erred in law and fact by rejecting the defence of alibi without cogent reasons.
vi. The trial court erred in law and fact by dismissing the appellant’s defence and submissions.
vii. The trial court erred in law and fact by issuing a sentence that was harsh and excessive under the circumstances.
9. The appeal was canvassed by way of written submissions which both parties duly filed. The Appellant was represented by Mr Jimmy Kiseu learned counsel whereas Miss Judy Gachuru learned counsel appeared for the Respondent. The appellant submitted that being the first appellate court, the court is to re-evaluate and analyze the evidence adduced before the trial court and arrive at its own conclusion on whether the evidence supports the finding before the trial court.
10. On penetration as an ingredient of the offence, it was submitted that the trial court erred and misdirected itself by placing reliance of the missing hymen. The case of PKW vs Republic (2012) eKLR where court observed that the absence of hymen alone is not proof of defilement was cited.
11. On the element of identification, it was submitted that the complainant’s testimony was not credible owing to the fact that she failed to report the matter for three years yet she was not threatened by the appellant and despite the fact that during that period she occasionally talked to her mother PW2 on phone and that during examination, she denied having had sexual relationship with one Baraka despite evidence showing the contrary. Reliance was placed on the case of Mercy Chelangat vs Republic (2022) eKLR .
12. It was further submitted that the trial court erroneously failed to consider the evidence tendered in defence where the appellant denied staying with the complainant or any of his other children who were staying with their mother, PW2. He also submitted that trial court failed to consider the fact that the complainant was engaged in sexual relationship with one Baraka. It was further argued that the evidence did not place the appellant on the crime scene.
13. On the sentence, it was contended that life imprisonment was harsh and excessive and that the trial court did not consider the pre-sentence report leading to an erroneous conclusion during sentencing. He urged the court to allow the appeal, and quash the conviction and sentence.
14. The Respondent opposed the appeal and reiterated that the duty of the first appellate court as set out in Odhiambo vs Republic, Cr App No. 280 of 2004 (2005) eKLR. It was submitted that the ingredients of the offence of incest are proof that the offender is a relative of the victim, proof of penetration, identification of the perpetrator and proof of age of the victim. See DMK vs Republic (2022) eKLR.
15. On the first ingredient, it was submitted that PW1, PW2 and the appellant confirmed that the complainant was a daughter of the appellant. On penetration, it was contended that the evidence of PW1 established sexual intercourse and was corroborated by medical evidence presented by PW5. On identification of the perpetrator, it was argued that the complainant positively identified the appellant as her father since she used to sleep in the same room with him. Mwangi vs R (2022) KEHC 11226 (KLR) was cited in support. On age of the victim, it was submitted it can be proved by medical evidence or other cogent evidence as held in Joseph Kiet Seet vs Republic (2014) eKLR and that PW2 produced evidence which showed that the complainant was born on 28 September 2009. The Respondent concluded that all ingredients of the offence were duly proved to the required standards.
16. Regarding the defence of alibi , it was submitted that the appellant did not at any point indicate to the investigating officers or the court during hearing of prosecution witnesses that he was not sleeping with the complainant in the same house. That he did not present evidence to rebut the evidence on PW1 and PW2 on the subject or that the complainant was sleeping in his grandmother’s house as alleged. The case of Karanja vs Republic (1983) KLR 501 was cited in support of the argument that the defence of alibi was not established.
17. On the sentence, the Respondent submitted that the sentence was lawful and proper based on Section 20 (1) of the Sexual offences Act which prescribes life imprisonment for the offence where the victim is under 18 years. It was further submitted that the appellant was not a first offender and had been previously convicted of sodomy in MCSO 648 of 2010 for which he was jailed for 5 years and served the sentence to completion. That the appellant falls under the category of a dangerous sexual offender as provided for under section 39 of the Sexual offences Act. The cases of S vs Malgas (2001) 1 SACR 469 (SCA) and Mwangi vs Republic were cited in support. The court was urged to dismiss the appeal and uphold the conviction and sentence.
Analysis and determination
18. This being the first appeal, the court has a duty to re-evaluate and analyze the evidence adduced before the trial court and arrive at its own independent conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of O iruri Mose Vs Republic (2013) eKLR. The Court of Appeal, in Kiilu & Another Vs Republic [2005]1 KLR 174 , stated thus;
“ 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; 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.”
19. The court has considered the evidence adduced before the trial court, the grounds of appeal and the respective rival submissions and has narrowed the issues for determination to be:
a) Whether the offence of incest was proved.
b) Whether the defence of alibi was duly established appellant
c) Whether the punishment was harsh and excessive.
Whether the offence of incest was proved
20. The appellant was charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006 . The section 20 (1) of the said Act provides: -
“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.”
19. Thus, the specific ingredients of the offence of incest arising from section 20 (1) of the Sexual Offences Act are:
i. Proof that the offender is a relative of the victim.
ii. Proof of penetration or indecent act.
iii. Identification of the perpetrator.
iv. Proof of the age of the victim. see DMK v Republic [2022] KEHC 1754 (KLR).
21. On the first ingredient, the appellant is charged with defiling the complainant T.N M, his daughter. The relationship between the appellant and the complainant falls within the degree of consanguinity listed in Section 20 (1) of the Act. PW1 identified the appellant as her father which was corroborated by PW2 who testified that she was married to the appellant with whom they sired four (4) children including the complainant. PW3 testifiesd that she knows the appellant to be the father of PW1. The appellant also makes reference to the complainant as his daughter. The court finds that the complainant is a daughter of the appellant and this ingredient was proved beyond reasonable doubt.
22. On the second ingredient of penetration, the appellant submitted that penetration was not proved and that the court erred in placing reliance on the medical evidence of a missing hymen as proof of defilement as well as relying on the evidence of PW1, the complainant despite the fact that her testimony was contradictory and full of inconsistencies making her loose credibility. The Respondent contended that the evidence of PW1 established sexual intercourse and was corroborated by medical evidence presented by PW5.
23. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
24. It is now well established that penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. This was the observation, which was correctly made by the trial court while relying on the decision in Bassita Vs Uganda S.C Cr iminal Appeal No. 35 of 1995 . The above position has been restated in many other decisions. In Kassim Ali vs Republic [2006] eKLR, the Court of Appeal observed as follows:
“So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”.
25. PW3 testified that on 27 March 2023 at round 6am, she noticed that the complainant had not gone to school and walked while limping. She inquired what had happened and the complainant told her that her father, the appellant had had sex with her which made her feel pain on the joints and made it difficult for her to walk. She also told her that was not the first time and the appellant had been having sex with her after every week or two since she was 10 years old.
26. PW1 testified that she lived with the appellant and slept in the same room. That since she was 10 years, the appellant started having sex with her on a weekly basis or sometimes after two weeks. She confirmed that on 27 March 2023 she was in pain due to having sex with her father, the appellant the previous night which had affected her walking. Medical examinations conducted by PW5 on 28 March 2023 confirmed that the complainant’s hymen was broken but not freshly broken. This gave credence to the complainant’s testimony. The court has examined the exhibits produced by PW5 and confirms they affirm his testimony.
27. The appellant challenged the credibility of the complainant as stated herein above. The trial court, at page 5 of the record of proceedings, stated thus concerning the complainant; “the court notes the demeanor of the witness. Appears disturbed, shy and reserved but truthful. Tears up as well.”
28. The trial court found the complainant truthful and credible. This court has analyzed the record and does not find any material contradictions or inconsistencies on the part of PW1 or any other prosecution witness. The court further observes that under Section 124 of the Evidence Act, in a sexual offence case, the court can convict an accused based on the sole evidence of the complainant so long as it records the reasons for finding the complainant truthful. The trial court in my view, fully satisfied itself on the proviso under section 124 of the Act and properly convicted the appellant on the basis of the complainant’s testimony. However, in this case, there is sufficient evidence that corroborates the complainant’s testimony.
29. The respondent further submitted that the complainant has been engaging in sexual intercourse with Baraka. However, culpability of the appellant is not affected by the fact that the complainant may have engaged in sexual intercourse with another person. The court finds that this ingredient was proved beyond any reasonable doubt.
30. On the third ingredient of identification, evidence shows that the complainant lived with the appellant who was his father and clearly well known to her. This was corroborated by PW2 and PW3. She, the complainant, identified him as the perpetrator testifying that he has been having sex with her since she was 10 days old. This was corroborated by medical evidence that proved penetration. The court finds that this element was proved beyond reasonable doubt.
31. On proof of age, the appellant faulted the trial court for placing reliance on the Child Health Card to find that this element was proved. It is of utmost importance to prove the age of the victim in a case of incest since sentencing is dependent on the age .
32. In Hadson Ali Mwachongo vs Republic (2016) eKLR , the Court of Appeal held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
33. The age of a victim may be proved in various ways. The Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR stated:
“ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof . We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
34. PW1 testified that she was born on 28 September 2009. This was corroborated by PW2 her mother who also produced the Child Health Card as exhibit 1. That card shows that the complainant was born on 28 September 2009 meaning that she was 13 years by 30 March 2023 when the appellant was arraigned. This court has examined the Child Health card and finds that it contains much more information on immunization, clinic visits and other growth parameters of the child. The appellant did not challenge its authenticity besides pointing out the discrepancies in the names. The court having examined it wholly, finds it credible despite the discrepancies pointed out. Besides, it is not the only evidence that proves the age. The court finds that this ingredient has been proved beyond reasonable doubt.
Whether the defence of alibi was duly established appellant
35. The appellant submitted that the trial court erroneously failed to consider the evidence tendered in defence where the appellant denied staying with the complainant or any of his other children who were staying with their mother, PW2 and faulted the trial court for failing to give credence to the defence of alibi.
36. The court of appeal in Erick Otieno Meda vs Republic (2019) eKLR had this to say on the defence of alibi raised by the accused persons;
a) An alibi needs to be corroborated by the other witnesses and not just a mere regurgitation of the events from the accused point of view.
b) An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination in trial.
c) The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she has presented in court.
d) The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond reasonable doubt so as to allow the alibi to fail.
37. The record shows that the appellant did not raise alibi at any time during the prosecution’s case. This denied the prosecution witnesses an opportunity for rebuttable. Additionally, while the appellant admitted that PW2 left her with three children, including the complainant, he testified that the complainant was sleeping in her grandmother’s house. However, no evidence was provided to support that allegation or rebut the evidence of PW1, PW2 and PW3 that to the effect that PW1 was living in the same house as the appellant.
38. The trial court did not find the appellant credible. The trial court observed as regards the appellant at page 19 of the record of proceedings; “accused demeanor not truthful, he appears to be thinking of the answer and stammers every time he thinks and comes up with an answer.” This court has no reason to doubt that observation. PW1’s evidence on the matter was consistent, cogent and credible. It was corroborated by PW3’s evidence as well as PW2, her mother. The court finds that the defence of alibi was not proved.
Whether the punishment was harsh and excessive
39. Turning on the sentence, the appellant submitted that the sentence meted out by the trial court was harsh and excessive. The learned trial magistrate observed as regards sentencing; “Having considered the matters in mitigation as well as aggravating factors. I note that the complainant in question was 13 years of age and below 18 years of age. The provisions of section 20 (1) provide that the minimum sentence is life imprisonment . ……”
40. It is apparent that the trial court, in awarding the life sentence, based its decision on the understanding that Section 20 (1) of the Sexual Offences Act prescribes a mandatory minimum sentence of life imprisonment where the victim is under 18 years.
41. Section 20 (1) of the Sexual Offences Ac t, provides:
“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.
42. The complainant was aged 13 years at the time of commission of the offence which brings the proviso to the Section into play. The question before court is, does the phrase, “ shall be liable to imprisonment for life” connote a mandatory term of life imprisonment?
43. The court of appeal in GRD vs R (2025) KECA 59 (KLR) had the occasion to consider meaning of Section 20 (1) of the said Act and had this to say;
“ 42. With due respect to the learned Judge, he committed two grave errors. The first error was that he misapprehended the wording of section 20(1) of the Act in holding that where the victim of incest is a child the mandatory sentence is life sentence. We have set section 20(1) of the Act and at the material part it states 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… ”
43. The predecessor of the court (as per Sir Clement DeLestang V.P) in Opoya v Uganda [1967] EA 752 at page 754 expressed itself thus: It seems to us beyond argument that the words “shall be liable to” do not in the ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it.”
44. The learned Judge in holding that “the section is couched in mandatory terms in regards to the sentence where the victim is a child” fell into error.”
44. The word “ …liable to…imprisonment” or in some cases “not exceeding…” sets out the maximum sentence. In such circumstances by dint of Section 26 (2) of the Penal Code , the court has discretion to impose a sentence shorter than prescribed by the relevant provision.
45. In this case, the court finds that the proviso to the section does not create a mandatory sentence of life imprisonment but sets the ceiling of life imprisonment. That proviso must, however, be read in consonance with the main section that sets a minimum sentence of ten (10) years imprisonment. Consequently, under Section 20 (1) of the Act, the court has a discretion of awarding any sentence above 10 years but not beyond life imprisonment.
46. Having found so, this court will consider whether the sentence of imprisonment is harsh and excessive. The court is alive to the fact that sentencing is an exercise of discretion by the trial court and will not ordinarily be interfered with on appeal except for good reason. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”
47. Based on the trial court’s interpretation of Section 20 (1) of the Act, it is evident that it did not consider the mitigation by the appellant. The trial court thus proceeded on an erroneous interpretation of the law which calls for this court’s interference.
48. Section 354 (3) of the Criminal Procedure Code empowers this court vary a sentence imposed by the trial court. The court has considered the mitigation by the appellant and weighed the same against the aggravating factors including that the appellant is a repeat offender. The court has further taken into account the objectives of punishment which include denunciation for the offence, retribution and rehabilitation.
Final Orders
49. In light of the above, the court makes the following orders: -
i. The appeal against conviction has no merit and is accordingly dismissed.
ii. The appeal against sentence partially succeeds. The sentence of life imprisonment is set aside and substituted with a sentence of twenty (20) years imprisonment.
iii. The sentence shall run from the date of conviction.
50. It is so ordered.
Dated, Signed And Delivered Virtually at Nairobi this 9 th day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
Criminal Appeal No. E013 of 20242