HCCRA NO E097/2025
PATRICK SILA MULE VS REPUBLIC
JUDGEMENT
1. The appellant was convicted of the offense of incest contrary to section 20(1) of the Sexual Offenses Act number 4 of 2006 in SO number E038 of 2024 at Machakos Chief Magistrates Court on 30th September 2025 by Hon LB Koech.
2. The particulars the offense are that on diverse dates between 1st May and 31st May 2024 at Katitu village, Katanga sublocation, Kola location in Kalama sub county within Machakos County, he intentionally and unlawfully caused his penis to penetrate the vagina of a DMS, child aged 14 years who to his knowledge was his daughter.
3. He faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offenses Act 3 of 2006. The particulars are that on diverse dates between 1st May and 31st May 2024 at the above place, he intentionally touched the vagina of DMS a child aged 14 years without her consent.
4. After a full hearing the appellant was convicted and sentenced to life imprisonment.
5. Aggrieved by both the conviction and sentence the appellant preferred the appeal here. In the amended grounds of appeal dated 4th May 2026, the appellant lease the following grounds of appeal:
- That the learned trial magistrate erred in both law and fact in finding that the prosecution had proved the element of penetration beyond reasonable doubt, yet the evidence on record was insufficient, inconsistent and did not meet the legal threshold required to sustain a conviction for the offense charged.
- That the learned trial magistrate erred in both law and facts by failing to draw an adverse inference against the prosecution for its failure to call crucial witnesses whose evidence was essential to the just determination of the case thereby occasioning a miscarriage of justice to the appellant.
- That the learned trial magistrate erred in both law and fact by improperly relying on hearsay evidence, which was inadmissible, untested and incapable of sustaining a conviction in the absence of direct and credible testimony.
- That the learned trial magistrate erred in both law and fact by upholding a conviction founded on inadequate and shoddy investigations which fell below the required standard and left critical gaps in the prosecution's case.
- That the learned trial magistrate erred in both law and fact by failing to properly evaluate, consider and give due weight to the appellant's defense thereby shifting the burden of proof and denying the appellant a fair trial.
- That the learned trial magistrate erred in both law and fact in imposing a sentence of life imprisonment on the mistaken belief that the same was mandatory contrary to provisions of the section 20(1) of the Sexual Offenses Act which provides for judicial discretion and in violation of the principles articulated in the Supreme Court in Republic versus Mwangi; Initiative for Strategic Litigation in Africa and three others (Petition E08 of 2023) (2024) KESC 34 KLR particularly paragraph 62 there by rendering the sentence unconstitutional and unlawful.
6. I have subjected the evidence adduced before the trial magistrate to a fresh analysis and evaluation while giving due allowance for the fact that I never saw the witnesses. I am guided by the holding in the case of Okeno versus Republic (1972) EA where the Court of Appeal stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination . (Pandya versus Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must weigh conflicting evidence and draw its own conclusion. (Shantilal Ruwala versus Republic (1957) EA 570. 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 finding and conclusion, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.
7. Section 20(1) of the Sexual Offenses Act under which the appellant was charged 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 and /or grandmother is guilty of an offense termed incest and is liable to imprisonment for a term of not less than 10 years:
Provided that if it is alleged in the information or charge and proved that the female person is under the age of 18 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.”
8. In order to establish the offense of incest, the prosecution must prove first, that the assailant was a relative of the victim; second, that there was penetration or in descent act; third, that there is positive identification of the perpetrator and finally proof of age of the victim. Where the victim is under the age of 18 years, the offense carries a sentence of life imprisonment.
9. The relationship between the complainant and the appellant has not been disputed. The complainant stated that the appellant was her stepfather. The appellant referred to the complement as his daughter.
10. Section 22(1) of the Sexual Offenses Act provides for the test of relationship and provides that:
“In cases of the offense of incest, brother and sister includes half - brother half - sister and adoptive brother and adoptive sister and a father include 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”
11. The court in the case of BNM versus Republic (2011) KEHC 1662 KLR the court explained:
“My own understanding is that half- father is a term which means exactly the same as step-father - it means one who is not a biological father of the child. Therefore by dint of this section 22(1) of the Act the appellant being a stepfather of the complainant and the one who stood in loquo parenthis is can legally be charged and indeed convicted of the crime of incest with her.
12. From the evidence on record the appellant is the complainant's stepfather.
13. Concerning the complainant's age, her birth certificate that was produced in court as exhibit 4a indicated that she was born on 1st December 2010; this means that by the time these charges were brought to court on 24th July 2024, she was about 13 years old.
14. On penetration the complainant told the court that between the 1st May to 30th May 2024, her mother had gone to visit one Cynthia. She was left at home with the appellant and her grandmother. One time the appellant asked her to take him drinking water inside the house. She did so and as she was leaving the appellant took her inside the house and removed her clothes then put her on a bed. He then proceeded to have sexual intercourse with her. He threatened to beat her up if she told anyone what had transpired. Her aunt, Koki later took her to the Chief who then took them to the police station to report the matter.
15. PW2 Cynthia Nzula said that the complainant is a daughter to her sister who is married to the appellant. She stated that on 12th July 2024 she went to the market when she was told that her sister's children were suffering as they do not go to school and that the appellant was having sex with the children. She decided to investigate the issue. She called her sister and the complainant went to her home the following day. The complainant cried for hours and then informed her that her stepfather had sex with her. She, her brother, the appellant, the complainant and the complainant's mother went and reported the matter to the Chief. The complainant explained what had happened after she was questioned. PW2 stated that the complainant's mother is mentally unstable.
16. PW3 David Musau, a clinical officer at Machakos, produced the complainant's P3 form. The complainant had a torn hymen, which was not fresh. This is a strong suggestion that penetration had occurred.
17. On identification, the complainant stated that the appellant was her stepfather who had sexual intercourse with her. This was done in her mother and siblings' absence. He then threatened to beat her if she ever told anyone what he had done.
18. The appellant denied the charges and said that on 21st July 2024 which was a Sunday, the children informed him that their mother had told them to go and pick shoes. He objected, as his wife had told him that the children would report him. He insisted that that they should go to church first. The children left and returned home happy saying that their aunt had cooked for them chapati and chicken. After sometime, a village elder went and told him to go to the Chief’s office the following day accompanied by his wife. The following day he and his wife went to the Chiefs office but the Chief was not there. The village elder arrived with the children's aunt. They were questioned why the children were not going to school. He informed the Chief that he did not have money at that time. The children’s aunt said he was lying. The children were called and were given bread and soda. He was asked to record a statement at the AP post. While inside, he heard his wife scream while saying that if there was something like that she would have known. The wife also said that the children had been coached. He took issue with the fact that his wife was not called as a witness. He claimed that he was being framed and that the investigating officer did not do proper investigations.
19. The only evidence concerning the incest is that of the complainant. The proviso to section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offense notwithstanding that it is the only available evidence. The section providers follows:
“not with standing the provisions of section 19 of the Oaths and Statutory Declarations Act, (cap 15) where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offense, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof evidence unless it is corroborated by other material evidence in support thereof evidence unless it is corroborated by other material evidence in support thereof evidence unless it is corroborated by other material evidence in support evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offense the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged to victim is the telling the truth.”
20. I am convinced that the complainant was telling the truth because I do not find that there was any reason for her to frame the appellant. The complainant stated that the appellant end also another cousin had defied her severally when her mother was away. Her evidence was consistent.
21. I am satisfied that after carefully evaluating the evidence on record that all the ingredients for the offense of incest were established. The prosecution proved this case beyond any reasonable doubt. There are no contradictions and no consistencies in the prosecution case. The claim by the appellant that crucial witnesses like his wife were not called does not hold water as he also could have called a wife in his defense.
Accordingly, I find that the appellant was properly convicted and I see no reason to interfere with the decision of the trial Court. The sentence is upheld. The appeal fails in its entirety.
The appeal is hereby dismissed.
READ AND PUBLISHED IN THE CTS THIS 20TH AUGUST 2026 IN THE PRESENCE OF THE APPELLANT
BEFORE HON JOYCE GANDANI, JUDGE
MACHUMA FOR STATE
DIANA COURT ASSISTANT
PATRICK SILA MULE VS REPUBLIC
JUDGEMENT
1. The appellant was convicted of the offense of incest contrary to section 20(1) of the Sexual Offenses Act number 4 of 2006 in SO number E038 of 2024 at Machakos Chief Magistrates Court on 30th September 2025 by Hon LB Koech.
2. The particulars the offense are that on diverse dates between 1st May and 31st May 2024 at Katitu village, Katanga sublocation, Kola location in Kalama sub county within Machakos County, he intentionally and unlawfully caused his penis to penetrate the vagina of a DMS, child aged 14 years who to his knowledge was his daughter.
3. He faced an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offenses Act 3 of 2006. The particulars are that on diverse dates between 1st May and 31st May 2024 at the above place, he intentionally touched the vagina of DMS a child aged 14 years without her consent.
4. After a full hearing the appellant was convicted and sentenced to life imprisonment.
5. Aggrieved by both the conviction and sentence the appellant preferred the appeal here. In the amended grounds of appeal dated 4th May 2026, the appellant lease the following grounds of appeal:
- That the learned trial magistrate erred in both law and fact in finding that the prosecution had proved the element of penetration beyond reasonable doubt, yet the evidence on record was insufficient, inconsistent and did not meet the legal threshold required to sustain a conviction for the offense charged.
- That the learned trial magistrate erred in both law and facts by failing to draw an adverse inference against the prosecution for its failure to call crucial witnesses whose evidence was essential to the just determination of the case thereby occasioning a miscarriage of justice to the appellant.
- That the learned trial magistrate erred in both law and fact by improperly relying on hearsay evidence, which was inadmissible, untested and incapable of sustaining a conviction in the absence of direct and credible testimony.
- That the learned trial magistrate erred in both law and fact by upholding a conviction founded on inadequate and shoddy investigations which fell below the required standard and left critical gaps in the prosecution's case.
- That the learned trial magistrate erred in both law and fact by failing to properly evaluate, consider and give due weight to the appellant's defense thereby shifting the burden of proof and denying the appellant a fair trial.
- That the learned trial magistrate erred in both law and fact in imposing a sentence of life imprisonment on the mistaken belief that the same was mandatory contrary to provisions of the section 20(1) of the Sexual Offenses Act which provides for judicial discretion and in violation of the principles articulated in the Supreme Court in Republic versus Mwangi; Initiative for Strategic Litigation in Africa and three others (Petition E08 of 2023) (2024) KESC 34 KLR particularly paragraph 62 there by rendering the sentence unconstitutional and unlawful.
6. I have subjected the evidence adduced before the trial magistrate to a fresh analysis and evaluation while giving due allowance for the fact that I never saw the witnesses. I am guided by the holding in the case of Okeno versus Republic (1972) EA where the Court of Appeal stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination . (Pandya versus Republic (1957) EA 336 and the appellate court’s own decision on the evidence. The first appellate court must weigh conflicting evidence and draw its own conclusion. (Shantilal Ruwala versus Republic (1957) EA 570. 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 finding and conclusion, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.
7. Section 20(1) of the Sexual Offenses Act under which the appellant was charged 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 and /or grandmother is guilty of an offense termed incest and is liable to imprisonment for a term of not less than 10 years:
Provided that if it is alleged in the information or charge and proved that the female person is under the age of 18 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.”
8. In order to establish the offense of incest, the prosecution must prove first, that the assailant was a relative of the victim; second, that there was penetration or in descent act; third, that there is positive identification of the perpetrator and finally proof of age of the victim. Where the victim is under the age of 18 years, the offense carries a sentence of life imprisonment.
9. The relationship between the complainant and the appellant has not been disputed. The complainant stated that the appellant was her stepfather. The appellant referred to the complement as his daughter.
10. Section 22(1) of the Sexual Offenses Act provides for the test of relationship and provides that:
“In cases of the offense of incest, brother and sister includes half - brother half - sister and adoptive brother and adoptive sister and a father include 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”
11. The court in the case of BNM versus Republic (2011) KEHC 1662 KLR the court explained:
“My own understanding is that half- father is a term which means exactly the same as step-father - it means one who is not a biological father of the child. Therefore by dint of this section 22(1) of the Act the appellant being a stepfather of the complainant and the one who stood in loquo parenthis is can legally be charged and indeed convicted of the crime of incest with her.
12. From the evidence on record the appellant is the complainant's stepfather.
13. Concerning the complainant's age, her birth certificate that was produced in court as exhibit 4a indicated that she was born on 1st December 2010; this means that by the time these charges were brought to court on 24th July 2024, she was about 13 years old.
14. On penetration the complainant told the court that between the 1st May to 30th May 2024, her mother had gone to visit one Cynthia. She was left at home with the appellant and her grandmother. One time the appellant asked her to take him drinking water inside the house. She did so and as she was leaving the appellant took her inside the house and removed her clothes then put her on a bed. He then proceeded to have sexual intercourse with her. He threatened to beat her up if she told anyone what had transpired. Her aunt, Koki later took her to the Chief who then took them to the police station to report the matter.
15. PW2 Cynthia Nzula said that the complainant is a daughter to her sister who is married to the appellant. She stated that on 12th July 2024 she went to the market when she was told that her sister's children were suffering as they do not go to school and that the appellant was having sex with the children. She decided to investigate the issue. She called her sister and the complainant went to her home the following day. The complainant cried for hours and then informed her that her stepfather had sex with her. She, her brother, the appellant, the complainant and the complainant's mother went and reported the matter to the Chief. The complainant explained what had happened after she was questioned. PW2 stated that the complainant's mother is mentally unstable.
16. PW3 David Musau, a clinical officer at Machakos, produced the complainant's P3 form. The complainant had a torn hymen, which was not fresh. This is a strong suggestion that penetration had occurred.
17. On identification, the complainant stated that the appellant was her stepfather who had sexual intercourse with her. This was done in her mother and siblings' absence. He then threatened to beat her if she ever told anyone what he had done.
18. The appellant denied the charges and said that on 21st July 2024 which was a Sunday, the children informed him that their mother had told them to go and pick shoes. He objected, as his wife had told him that the children would report him. He insisted that that they should go to church first. The children left and returned home happy saying that their aunt had cooked for them chapati and chicken. After sometime, a village elder went and told him to go to the Chief’s office the following day accompanied by his wife. The following day he and his wife went to the Chiefs office but the Chief was not there. The village elder arrived with the children's aunt. They were questioned why the children were not going to school. He informed the Chief that he did not have money at that time. The children’s aunt said he was lying. The children were called and were given bread and soda. He was asked to record a statement at the AP post. While inside, he heard his wife scream while saying that if there was something like that she would have known. The wife also said that the children had been coached. He took issue with the fact that his wife was not called as a witness. He claimed that he was being framed and that the investigating officer did not do proper investigations.
19. The only evidence concerning the incest is that of the complainant. The proviso to section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offense notwithstanding that it is the only available evidence. The section providers follows:
“not with standing the provisions of section 19 of the Oaths and Statutory Declarations Act, (cap 15) where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offense, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof evidence unless it is corroborated by other material evidence in support thereof evidence unless it is corroborated by other material evidence in support thereof evidence unless it is corroborated by other material evidence in support evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offense the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged to victim is the telling the truth.”
20. I am convinced that the complainant was telling the truth because I do not find that there was any reason for her to frame the appellant. The complainant stated that the appellant end also another cousin had defied her severally when her mother was away. Her evidence was consistent.
21. I am satisfied that after carefully evaluating the evidence on record that all the ingredients for the offense of incest were established. The prosecution proved this case beyond any reasonable doubt. There are no contradictions and no consistencies in the prosecution case. The claim by the appellant that crucial witnesses like his wife were not called does not hold water as he also could have called a wife in his defense.
Accordingly, I find that the appellant was properly convicted and I see no reason to interfere with the decision of the trial Court. The sentence is upheld. The appeal fails in its entirety.
The appeal is hereby dismissed.
READ AND PUBLISHED IN THE CTS THIS 20TH AUGUST 2026 IN THE PRESENCE OF THE APPELLANT
BEFORE HON JOYCE GANDANI, JUDGE
MACHUMA FOR STATE
DIANA COURT ASSISTANT