1. The Appellant, Philip Nzoka Mwanzui, was charged before the trial court with the offence of incest contrary to section 20(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on diverse dates between 1st January 2021 and 28th March 2021, at Nzamba Village, Nzamba Sub-Location, Kasalaala Location, Ikutha Sub-County, within Kitui County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of R.N.P., a child aged 10 years, who was, to his knowledge, his daughter.
2. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars alleged that on diverse dates between 1st January 2021 and 28th March 2021, at the same place, the Appellant intentionally and unlawfully touched the vagina of R.N.P., a child aged 10 years, with his penis.
3. The prosecution called five (5) witnesses in support of its case. A voire dire examination was conducted in respect of PW1, R.N.P., the complainant, following which the trial court was satisfied that she understood the nature of an oath. She was accordingly sworn and gave her evidence on oath. She testified that she was born on 21st January 2011 and that the Appellant was her father. She recalled that between January and March 2021, her mother was away, leaving her at home with the Appellant and her siblings, Kilonzo, Mwangangi and Muthiani. She narrated that on a particular night during that period, the Appellant asked her to sleep with him, and, after threatening to kill her if she refused, took her to her mother's bed, removed her clothes and defiled her. He then threatened to kill her if she disclosed the incident to her mother. She stated that this continued for some time thereafter, on occasions when her mother was away and her brothers had gone out grazing. She subsequently became sickly, complaining of stomach ache, and upon being taken to hospital, disclosed to her mother that the Appellant had been defiling her. The repeated instances of defilement prompted the appellant to run away from home to her grandmother's house, where she disclosed that the Appellant had been defiling her for a long time. The matter was thereafter reported to the police. She was examined and subsequently moved to a children's home.
4. PW2, Rhoda Phillip, the complainant’s mother and the Appellant’s second wife, testified that on 12th October 2023, the complainant and her sister left home in the morning. Later that day, while PW2 was grazing cattle, the Appellant showed her books and lunch boxes which he had found in a cave. She identified them as belonging to the complainant and subsequently learnt that the children had not reported to school and were later traced to Kibwezi. At the police station, the complainant disclosed that the Appellant had been defiling her and inserting his finger into her vagina, and that he had threatened to kill her if she disclosed the abuse. PW2 took her to hospital, where she was examined and informed that she had been defiled. She explained that she had not reported the matter earlier because she feared the Appellant.
5. PW2 identified the complainant’s birth certificate, PMFI-10, which showed that she was born on 21st January 2011 and confirmed that she did not witness the alleged acts.
6. PW3, Stephen Mwanzui Philip, testified that the complainant was his sister and the Appellant was his father. He recalled that on the day the complainant and Mary left home, he visited his stepmother, PW2, who informed him that the Appellant had defiled the complainant.
7. PW4, Gilbert Muga, a clinical officer at Ikutha Level 4 Hospital, testified that on 13th October 2023, the complainant was examined by Elizabeth Masai at the facility and gave a history of defilement by a person known to her since 2022. Vaginal examination revealed normal genitalia with no injuries, although there was whitish discharge. Pregnancy and syphilis tests were negative, while a high vaginal swab showed moderate red blood cells but no spermatozoa. The hymen was not intact and the anus was normal. PW4 produced the treatment notes and P3 form dated 13th October 2023 as Exhibits 1 and 2, respectively.
8. PW5 IP Peter Onduso stated that upon receiving complainant’s report visiting the appellant’s home and recovered complainant’s certificate of birth which showed she was born on 21st January 2011 which he tendered as PEXH. 3. The appellant was subsequently arrested and charged
9. In his unsworn defence, the appellant denied the offence. He stated that the complainant lied about him after she was arrested in October 2023 after she ran away from home and stopped going to school. He wondered why the offence was bot reported in 2021 if it was indeed true.
10. By a judgment dated 26th June 2025, the trial court found the appellant guity of the main cont. He was subsequently sentenced to 30 years imprisonment on 16th July 2025.
11. Aggrieved by and dissatisfied with the conviction and sentence, the Appellant lodged this appeal on 28th July 2025 on the following grounds:
1) That the learned trial Magistrate erred in law and fact by illegally admitting scientific evidence.
2) That the learned trial Magistrate erred in law and fact by failing to properly evaluate the evidence adduced during the trial and the documents relating to the examination, which evidence did not sufficiently establish the nexus between the offence and the Appellant.
3) That the learned trial Magistrate erred in law and fact by relying on evidence adduced at the trial while leaving doubts and a grudge to fix the Appellant with the offence.
4) That the learned trial Magistrate erred in law and fact by rejecting the Appellant’s statements, which, according to the Appellant, were made to elaborate the truth and expose the doubts and lies in the evidence of the prosecution witnesses.
5) That the learned trial Magistrate erred in law and fact by finding that the evidence adduced by the prosecution was sufficient despite the same not being corroborated with the charge sheet to which the Appellant had pleaded.
6) That the learned trial Magistrate erred in law and fact by failing to avail essential prosecution witnesses to justify and support the evidence on record.
7) That the learned trial Magistrate erred in law and fact by failing to properly consider the treatment documents and P.R.C. forms before finding the Appellant guilty.
8) That the learned trial Magistrate erred in law and fact by failing to consider the totality of the evidence and thereby arriving at an unsafe conviction.
12. The Appellant, who appeared in person, relied on his written submissions dated 24th August 2026. He urged the Court to allow the appeal against both conviction and sentence. His submissions challenged the sufficiency and reliability of the prosecution evidence, the failure to call material witnesses, the medical evidence, the consideration of his defence and the sentence imposed.
13. On the first and second grounds, the Appellant submitted that the prosecution failed to establish the essential ingredients of the offence beyond reasonable doubt. He contended that penetration was not sufficiently proved and that the evidence of the complainant contained material inconsistencies which rendered the prosecution case unreliable.
14. The Appellant questioned the complainant’s account that the alleged defilement occurred repeatedly over a period of about two months. He submitted that if the acts occurred as alleged, the complainant would have had opportunities to raise an alarm or disclose the matter to her siblings or other persons. He also pointed to the circumstances surrounding her illness, the subsequent report and the contents of the medical documents, which he argued were inconsistent with her account.
15. The Appellant further submitted that the medical evidence did not establish a nexus between him and the alleged offence. He pointed to the evidence that the complainant’s external genitalia were normal, no spermatozoa were detected in the vaginal swab and the pregnancy, HIV and syphilis tests were negative. He also relied on the absence of genital injuries and argued that the medical findings did not corroborate the allegation of defilement.
16. On the failure to call material witnesses, the Appellant submitted that the prosecution had failed to call persons whose evidence would have been important in determining the truth of the allegations. In particular, he referred to Mary Ndunge, Mwangangi, the arresting officer and the doctor who initially examined the complainant. He argued that their evidence could have shed light on the circumstances surrounding the alleged offences and the medical examination.
17. The Appellant submitted that the failure to call the said witnesses was particularly significant because the evidence of PW1 and PW2 was, in his view, materially inconsistent. He contended that the evidence of Mwangangi was important because the complainant had indicated that he was present in the home during the material period and had allegedly witnessed one of the acts. He further argued that Mary Ndunge could have provided independent evidence concerning the complainant’s disclosure.
18. The Appellant also challenged the manner in which the medical evidence was presented before the trial court. He submitted that the clinical officer who testified was not the person who initially examined the complainant or prepared the relevant medical documentation. He contended that the failure to call the doctor who had initially examined the complainant rendered the medical evidence doubtful and deprived him of an opportunity to challenge the evidence concerning the examination.
19. The Appellant further submitted that the evidence concerning the complainant’s clothing and the circumstances in which she was found raised doubts about the prosecution case. He argued that the fact that she was found wearing a school uniform was inconsistent with the account of forcible defilement and that the trial court failed to properly address this aspect of the evidence.
20. The Appellant contended that the prosecution evidence contained material contradictions involving PW1, PW2, PW3 and PW4. He submitted that these contradictions affected the credibility of the witnesses and ought to have been resolved in his favour. He further argued that the prosecution had not placed before the Court sufficient evidence linking him to the alleged acts.
21. On his defence, the Appellant submitted that the trial court failed to properly consider his explanation. He maintained that he was undertaking his normal duties during the material period and that this aspect of his defence was not displaced by the prosecution evidence. He also questioned the delay between the alleged period of commission of the offence and the eventual report and arrest, arguing that the delay raised doubts which ought to have been considered in determining his guilt.
22. Finally, on sentence, the Appellant submitted that the trial court imposed the sentence of 30 years imprisonment without properly exercising its discretion or adequately considering his mitigation and the applicable sentencing principles. He contended that he was a first offender and urged this Court, if it did not interfere with the conviction, to find that the sentence was harsh and excessive and substitute it with a more lenient sentence.
23. The Appellant therefore prayed that the conviction be quashed and the sentence set aside. In the alternative, he urged the Court to revise the sentence to a more lenient term and grant such other relief as it considered just and equitable.
24. Having considered the grounds of appeal, the submissions and the evidence on record, I find the following issues arise for determination:
1) Whether the prosecution proved incest.
2) Whether the prosecution evidence contained material contradictions.
3) Whether the medical and documentary evidence was properly admitted and considered.
4) Whether failure to call crucial witnesses rendered the prosecution case insufficient.
5) Whether the Appellant’s right to a fair trial was violated.
6) Whether the Appellant’s defence was properly considered.
7) Whether the conviction accorded with the charge and the evidence.
8) Whether the sentence of thirty years was lawful and proper.
25. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The Court must therefore subject the entire evidence to a fresh and exhaustive examination and determine whether the prosecution proved its case beyond reasonable doubt. This is the duty set out in Okeno v Republic [1972] EA 32.
26. The first issue for determination is whether the prosecution proved the essential ingredients of the offence of incest contrary to section 20(1) of the Sexual Offences Act. The trial magistrate found that the prosecution had proved that the complainant was the Appellant's daughter, that the Appellant knew of that relationship and that he had caused his penis to penetrate her vagina, findings which the Appellant challenges on the basis that the evidence was insufficient, inconsistent and not supported by the medical evidence.
27. Section 20(1) of the Sexual Offences Act provides that a 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 incest. This Court has reconsidered and re-evaluated the evidence upon which the trial magistrate reached the impugned findings, bearing in mind its duty as a first appellate court to draw its own conclusions from the evidence while making due allowance for the fact that it did not see or hear the witnesses.
28. The evidence concerning the relationship between the Appellant and the complainant was given by PW1, PW2 and PW3 and was consistent throughout. PW1 testified that the Appellant was her father, PW2, who was the complainant's mother and the Appellant's second wife, confirmed that he was the complainant's father, while PW3 similarly confirmed the relationship. The Appellant did not challenge that evidence in his defence. This Court therefore agrees with the trial magistrate that the prosecution established the father-daughter relationship contemplated by section 20(1) of the Act and that, in view of that relationship, the Appellant was aware that the complainant was his daughter.
29. The evidence on the alleged sexual act came principally from PW1, who testified that the Appellant removed her clothes, removed his own clothes and inserted his penis into her vagina, an act which she stated was repeated when her mother was away from home. She further testified that the Appellant threatened to kill her if she disclosed the matter. The trial magistrate accepted this account and found that it established penetration. This Court has subjected that evidence to its own evaluation together with the circumstances in which the complaint was eventually made and the medical evidence presented by the prosecution.
30. PW4 examined the complainant on 13th October 2023 and found no genital injuries and no spermatozoa. The examination was conducted considerably after the period alleged in the charge, namely between January and March 2021. The medical findings were therefore considered by the trial magistrate in the context of the evidence as a whole. This Court similarly finds that the absence of genital injuries or spermatozoa on examination did not, in the circumstances, exclude the occurrence of penetration during the period alleged, and the medical evidence consequently did not displace the complainant's account.
31. The Appellant's contention that the evidence of penetration required corroboration has been considered in light of section 124 of the Evidence Act, which permits a conviction for a sexual offence on the evidence of the complainant alone where the court believes that evidence and records the reasons for such belief. The Appellant relied on Elizabeth Waithiegeni Gatimu v Republic [2015] KEHC 1136 (KLR) in support of the broader proposition that a conviction cannot stand where the prosecution evidence leaves a reasonable doubt. That principle is not in dispute; the question is whether, upon a re-evaluation of the evidence in this appeal, such doubt arises.
32. In considering that question, this Court has taken into account the delay in disclosure which PW1 explained by stating that the Appellant had threatened to kill her if she disclosed the abuse. She subsequently disclosed the allegations to her mother, after which the matter was reported. The explanation was considered by the trial magistrate in assessing the credibility of PW1, and this Court, having reconsidered the same evidence, finds no reason to reach a different conclusion merely on account of the delay.
33. Upon a consideration of the evidence as a whole, this Court agrees with the trial magistrate's findings that the prosecution proved the sexual act alleged in the charge, the father-daughter relationship between the Appellant and the complainant, and the Appellant's knowledge of that relationship. The evidence does not leave a reasonable doubt as to any of those essential matters. The prosecution accordingly proved the offence of incest contrary to section 20(1) of the Sexual Offences Act beyond reasonable doubt.
34. The second issue for determination is whether the inconsistencies and contradictions identified by the Appellant in the prosecution evidence were material as to render the conviction unsafe. The Appellant's complaint was directed principally at PW1's account that the Appellant defiled her every day for about two months without her raising an alarm or disclosing the matter to her brothers, the treatment notes in which a complaint of toothache was recorded, the medical findings in the PRC and P3 forms, the fact that the complainant was later found in school uniform, and the alleged differences in the evidence of PW1, PW2, PW3 and PW4.
35. As regards the frequency and duration of the alleged defilement, PW1 testified that the Appellant defiled her repeatedly over a period of about two months and threatened to kill her if she told her mother. The Appellant submits that it was improbable that she would remain silent throughout that period, particularly when she was living in the same house with her brothers, and that she would not have screamed or sought their assistance. This Court has considered that contention against PW1's explanation for her silence. The evidence was that the Appellant was her father, that the alleged acts occurred in the home and that he accompanied the acts with threats of death if she disclosed them. The failure to scream or make an immediate complaint is therefore a matter bearing on the assessment of her evidence, but it does not contradict her account of the acts themselves. The trial magistrate considered her explanation and accepted it, and upon re-evaluation this Court finds no material inconsistency arising from the delay in disclosure.
36. The Appellant next relied on the treatment notes, particularly the note bearing serial number 3649, which recorded a complaint of toothache rather than defilement. This Court has considered that record in the context of PW1's evidence that she subsequently became sick and complained of stomach pain before her mother took her to hospital. The fact that one of the treatment notes produced in evidence recorded toothache does not, without more, contradict the allegation of defilement. The medical attendance recorded in that particular note was not itself an investigation of the alleged sexual offence, and the absence of a complaint of defilement from that entry does not establish that the events later narrated by PW1 did not occur. The significance of the note was therefore properly a matter of weight rather than proof of a contradiction in the prosecution case.
37. The Appellant also contended that the medical evidence exonerated him because PW4 found the complainant's external genitalia normal, detected no spermatozoa in the high vaginal swab and recorded negative venereal disease and HIV tests. This Court has considered those findings against the evidence of PW1 and the timing of the examination. PW4 examined the complainant on 13th October 2023, whereas the alleged acts in the charge were said to have occurred between January and March 2021. The medical findings therefore did not positively contradict PW1's evidence that she had been defiled during the period charged. They established the condition found upon examination in 2023, but did not, in the circumstances, exclude the occurrence of the alleged acts more than two years earlier. The trial magistrate was therefore entitled to consider the medical evidence together with the testimony of PW1 rather than treat the absence of physical findings as determinative of the charge.
38. The Appellant further relied on the fact that the complainant was wearing a school uniform when she was subsequently found, submitting that this was inconsistent with her account of having been defiled. This Court has considered the submission but finds no inconsistency. The evidence that the complainant was later found in school uniform does not contradict her account of what occurred at the Appellant's home during the period alleged in the charge, and no evidential connection was demonstrated between the state of her clothing when she was found and the occurrence or non-occurrence of the alleged acts.
39. The Appellant's complaint that the testimonies of PW1, PW2, PW3 and PW4 contained material contradictions has also been considered. PW2 and PW3 were not witnesses to the alleged acts and their evidence concerning the allegations was based on what they subsequently learnt from the complainant and the family circumstances surrounding the complaint. Their evidence could not therefore be expected to reproduce the account given by PW1 as an eyewitness to the acts alleged against her father. The evidence of PW4, on the other hand, concerned the medical examination conducted in October 2023 and the findings made at that time. The differences arising from the different circumstances in which these witnesses acquired their information do not, without more, constitute contradictions on the essential question whether the Appellant defiled PW1.
40. The approach urged by the Appellant finds some support in Paul Kanja Gitari v Republic [2016] KECA 741 (KLR), where the Court of Appeal emphasised the duty of a first appellate court to interrogate and resolve contradictions and inconsistencies in the prosecution evidence, particularly where the evidence relied upon by the prosecution is barely adequate. The Court's concern in that case was with contradictions going to material aspects of the prosecution narrative. That principle has guided this Court in examining each of the matters raised by the Appellant rather than dismissing them merely as minor discrepancies.
41. Upon that examination, this Court finds that none of the matters identified by the Appellant amounts to a material contradiction going to the substance of PW1's allegation that the Appellant defiled her. The evidence concerning the duration and non-disclosure is explained by the threats attributed to the Appellant; the toothache was recorded in only one of the treatment notes and did not purport to record an examination for defilement; the medical findings were made long after the period charged and did not exclude the occurrence of the alleged acts; the school uniform did not contradict the allegation; and the differences between the witnesses are attributable to the different matters within their respective knowledge. The trial magistrate's acceptance of the prosecution evidence was therefore not shown to have resulted from a failure to address any material contradiction. This Court consequently finds that the inconsistencies relied upon by the Appellant did not create a reasonable doubt or render the conviction unsafe.
42. The third issue for determination is whether the medical and documentary evidence was properly admitted and considered. The Appellant challenged the medical evidence principally on the ground that the complainant was examined by Elizabeth Masai, who prepared the medical documents but was not called to testify. He further contended that the medical findings did not support the allegation of penetration.
43. PW4, Gilbert Muga, testified regarding the examination conducted by Elizabeth Masai at Ikutha Level 4 Hospital on 13th October 2023. He explained that Elizabeth Masai no longer worked at the facility and produced the treatment notes and P3 form dated 13th October 2023 as Exhibits 1 and 2. The trial court admitted and considered the documents together with the oral evidence.
44. Section 77 of the Evidence Act permits medical documents to be received in evidence in the circumstances provided by the section. In Joshua Otieno Oguga v Republic [2009] KECA 10 (KLR), the Court of Appeal recognised that a medical report may be produced by a person other than its maker and that an accused person who wishes to have the maker attend court may seek to have the maker summoned. The absence of the maker therefore did not, by itself, render the documents inadmissible.
45. The Appellant also challenged the medical findings, pointing to the absence of genital injuries and spermatozoa, as well as the negative pregnancy and syphilis tests. Those findings were made on 13th October 2023, more than two years after the period specified in the charge. They therefore did not, in the circumstances, exclude the occurrence of penetration during the period alleged.
46. The treatment note bearing serial number 3649, which recorded a complaint of toothache rather than defilement, was also considered. The entry did not purport to record an examination arising from the alleged sexual offence and, considered alongside the other evidence, did not establish that the alleged acts had not occurred.
47. In Naomi Bonareri Angasa v Republic [2021] KEHC 6906 (KLR), the court considered the requirements for admission of medical evidence under section 77 of the Evidence Act. In the present case, PW4 explained the absence of the maker and produced the documents in the course of his evidence. This Court is satisfied that the trial court properly admitted and considered the medical and documentary evidence.
48. The fourth issue for determination is whether the failure by the prosecution to call certain witnesses rendered the prosecution case insufficient.
49. The Appellant submitted that the prosecution failed to call Mary Ndunge, Mwangangi, the arresting officer and the doctor who initially examined the complainant, yet their evidence was material to the determination of the case. Particular emphasis was placed on Mwangangi, who was said to have been in the homestead during the material period and to have seen the Appellant inserting his fingers into the complainant’s vagina. It was submitted that the failure to call these witnesses left material aspects of the prosecution case untested.
50. Section 143 of the Evidence Act provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. The prosecution was therefore not obliged to call every person who may have had some knowledge of the circumstances surrounding the alleged offence. The issue is whether the witnesses identified by the Appellant were material witnesses whose evidence was necessary for the determination of the charge.
51. In Paul Kanja Gitari v Republic [2016] KECA 741 (KLR), the Court of Appeal held that although section 143 of the Evidence Act does not require the calling of any particular number of witnesses, where the prosecution evidence is barely adequate, failure to call vital witnesses may justify an adverse inference against the prosecution. The Court's reasoning was that such witnesses may provide evidence capable of resolving material matters in dispute. The principle therefore applies where the uncalled witness had material evidence to offer and the evidence already on record is insufficient without it.
52. In the present case, Mary Ndunge was not shown to have witnessed the alleged acts. Her relevance arose from the complainant's reference to her in relation to the circumstances surrounding the disclosure. Her evidence could have provided additional information, but her absence did not leave the central allegation incapable of determination.
53. Mwangangi was one of the complainant's brothers who lived in the homestead during the material period. Although the Appellant placed significance on his alleged observation, there was no evidence from Mwangangi himself confirming that he witnessed the alleged acts. His absence therefore did not, on the evidence before the trial court, create a gap of such magnitude as to make the prosecution case barely adequate.
54. The complaint concerning the arresting officer is not borne out by the record, since PW5, IP Peter Onduso, testified concerning the report, investigations, recovery of the complainant's birth certificate and the Appellant's arrest. There was therefore evidence before the trial court on the relevant investigative steps. As for the doctor who initially examined the complainant, the failure to call that practitioner did not by itself render the medical aspect of the prosecution case insufficient, particularly in view of the evidence subsequently given by PW4.
55. This Court has considered the witnesse
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2. In the alternative, the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars alleged that on diverse dates between 1st January 2021 and 28th March 2021, at the same place, the Appellant intentionally and unlawfully touched the vagina of R.N.P., a child aged 10 years, with his penis.
3. The prosecution called five (5) witnesses in support of its case. A voire dire examination was conducted in respect of PW1, R.N.P., the complainant, following which the trial court was satisfied that she understood the nature of an oath. She was accordingly sworn and gave her evidence on oath. She testified that she was born on 21st January 2011 and that the Appellant was her father. She recalled that between January and March 2021, her mother was away, leaving her at home with the Appellant and her siblings, Kilonzo, Mwangangi and Muthiani. She narrated that on a particular night during that period, the Appellant asked her to sleep with him, and, after threatening to kill her if she refused, took her to her mother's bed, removed her clothes and defiled her. He then threatened to kill her if she disclosed the incident to her mother. She stated that this continued for some time thereafter, on occasions when her mother was away and her brothers had gone out grazing. She subsequently became sickly, complaining of stomach ache, and upon being taken to hospital, disclosed to her mother that the Appellant had been defiling her. The repeated instances of defilement prompted the appellant to run away from home to her grandmother's house, where she disclosed that the Appellant had been defiling her for a long time. The matter was thereafter reported to the police. She was examined and subsequently moved to a children's home.
4. PW2, Rhoda Phillip, the complainant’s mother and the Appellant’s second wife, testified that on 12th October 2023, the complainant and her sister left home in the morning. Later that day, while PW2 was grazing cattle, the Appellant showed her books and lunch boxes which he had found in a cave. She identified them as belonging to the complainant and subsequently learnt that the children had not reported to school and were later traced to Kibwezi. At the police station, the complainant disclosed that the Appellant had been defiling her and inserting his finger into her vagina, and that he had threatened to kill her if she disclosed the abuse. PW2 took her to hospital, where she was examined and informed that she had been defiled. She explained that she had not reported the matter earlier because she feared the Appellant.
5. PW2 identified the complainant’s birth certificate, PMFI-10, which showed that she was born on 21st January 2011 and confirmed that she did not witness the alleged acts.
6. PW3, Stephen Mwanzui Philip, testified that the complainant was his sister and the Appellant was his father. He recalled that on the day the complainant and Mary left home, he visited his stepmother, PW2, who informed him that the Appellant had defiled the complainant.
7. PW4, Gilbert Muga, a clinical officer at Ikutha Level 4 Hospital, testified that on 13th October 2023, the complainant was examined by Elizabeth Masai at the facility and gave a history of defilement by a person known to her since 2022. Vaginal examination revealed normal genitalia with no injuries, although there was whitish discharge. Pregnancy and syphilis tests were negative, while a high vaginal swab showed moderate red blood cells but no spermatozoa. The hymen was not intact and the anus was normal. PW4 produced the treatment notes and P3 form dated 13th October 2023 as Exhibits 1 and 2, respectively.
8. PW5 IP Peter Onduso stated that upon receiving complainant’s report visiting the appellant’s home and recovered complainant’s certificate of birth which showed she was born on 21st January 2011 which he tendered as PEXH. 3. The appellant was subsequently arrested and charged
9. In his unsworn defence, the appellant denied the offence. He stated that the complainant lied about him after she was arrested in October 2023 after she ran away from home and stopped going to school. He wondered why the offence was bot reported in 2021 if it was indeed true.
10. By a judgment dated 26th June 2025, the trial court found the appellant guity of the main cont. He was subsequently sentenced to 30 years imprisonment on 16th July 2025.
11. Aggrieved by and dissatisfied with the conviction and sentence, the Appellant lodged this appeal on 28th July 2025 on the following grounds:
1) That the learned trial Magistrate erred in law and fact by illegally admitting scientific evidence.
2) That the learned trial Magistrate erred in law and fact by failing to properly evaluate the evidence adduced during the trial and the documents relating to the examination, which evidence did not sufficiently establish the nexus between the offence and the Appellant.
3) That the learned trial Magistrate erred in law and fact by relying on evidence adduced at the trial while leaving doubts and a grudge to fix the Appellant with the offence.
4) That the learned trial Magistrate erred in law and fact by rejecting the Appellant’s statements, which, according to the Appellant, were made to elaborate the truth and expose the doubts and lies in the evidence of the prosecution witnesses.
5) That the learned trial Magistrate erred in law and fact by finding that the evidence adduced by the prosecution was sufficient despite the same not being corroborated with the charge sheet to which the Appellant had pleaded.
6) That the learned trial Magistrate erred in law and fact by failing to avail essential prosecution witnesses to justify and support the evidence on record.
7) That the learned trial Magistrate erred in law and fact by failing to properly consider the treatment documents and P.R.C. forms before finding the Appellant guilty.
8) That the learned trial Magistrate erred in law and fact by failing to consider the totality of the evidence and thereby arriving at an unsafe conviction.
12. The Appellant, who appeared in person, relied on his written submissions dated 24th August 2026. He urged the Court to allow the appeal against both conviction and sentence. His submissions challenged the sufficiency and reliability of the prosecution evidence, the failure to call material witnesses, the medical evidence, the consideration of his defence and the sentence imposed.
13. On the first and second grounds, the Appellant submitted that the prosecution failed to establish the essential ingredients of the offence beyond reasonable doubt. He contended that penetration was not sufficiently proved and that the evidence of the complainant contained material inconsistencies which rendered the prosecution case unreliable.
14. The Appellant questioned the complainant’s account that the alleged defilement occurred repeatedly over a period of about two months. He submitted that if the acts occurred as alleged, the complainant would have had opportunities to raise an alarm or disclose the matter to her siblings or other persons. He also pointed to the circumstances surrounding her illness, the subsequent report and the contents of the medical documents, which he argued were inconsistent with her account.
15. The Appellant further submitted that the medical evidence did not establish a nexus between him and the alleged offence. He pointed to the evidence that the complainant’s external genitalia were normal, no spermatozoa were detected in the vaginal swab and the pregnancy, HIV and syphilis tests were negative. He also relied on the absence of genital injuries and argued that the medical findings did not corroborate the allegation of defilement.
16. On the failure to call material witnesses, the Appellant submitted that the prosecution had failed to call persons whose evidence would have been important in determining the truth of the allegations. In particular, he referred to Mary Ndunge, Mwangangi, the arresting officer and the doctor who initially examined the complainant. He argued that their evidence could have shed light on the circumstances surrounding the alleged offences and the medical examination.
17. The Appellant submitted that the failure to call the said witnesses was particularly significant because the evidence of PW1 and PW2 was, in his view, materially inconsistent. He contended that the evidence of Mwangangi was important because the complainant had indicated that he was present in the home during the material period and had allegedly witnessed one of the acts. He further argued that Mary Ndunge could have provided independent evidence concerning the complainant’s disclosure.
18. The Appellant also challenged the manner in which the medical evidence was presented before the trial court. He submitted that the clinical officer who testified was not the person who initially examined the complainant or prepared the relevant medical documentation. He contended that the failure to call the doctor who had initially examined the complainant rendered the medical evidence doubtful and deprived him of an opportunity to challenge the evidence concerning the examination.
19. The Appellant further submitted that the evidence concerning the complainant’s clothing and the circumstances in which she was found raised doubts about the prosecution case. He argued that the fact that she was found wearing a school uniform was inconsistent with the account of forcible defilement and that the trial court failed to properly address this aspect of the evidence.
20. The Appellant contended that the prosecution evidence contained material contradictions involving PW1, PW2, PW3 and PW4. He submitted that these contradictions affected the credibility of the witnesses and ought to have been resolved in his favour. He further argued that the prosecution had not placed before the Court sufficient evidence linking him to the alleged acts.
21. On his defence, the Appellant submitted that the trial court failed to properly consider his explanation. He maintained that he was undertaking his normal duties during the material period and that this aspect of his defence was not displaced by the prosecution evidence. He also questioned the delay between the alleged period of commission of the offence and the eventual report and arrest, arguing that the delay raised doubts which ought to have been considered in determining his guilt.
22. Finally, on sentence, the Appellant submitted that the trial court imposed the sentence of 30 years imprisonment without properly exercising its discretion or adequately considering his mitigation and the applicable sentencing principles. He contended that he was a first offender and urged this Court, if it did not interfere with the conviction, to find that the sentence was harsh and excessive and substitute it with a more lenient sentence.
23. The Appellant therefore prayed that the conviction be quashed and the sentence set aside. In the alternative, he urged the Court to revise the sentence to a more lenient term and grant such other relief as it considered just and equitable.
24. Having considered the grounds of appeal, the submissions and the evidence on record, I find the following issues arise for determination:
1) Whether the prosecution proved incest.
2) Whether the prosecution evidence contained material contradictions.
3) Whether the medical and documentary evidence was properly admitted and considered.
4) Whether failure to call crucial witnesses rendered the prosecution case insufficient.
5) Whether the Appellant’s right to a fair trial was violated.
6) Whether the Appellant’s defence was properly considered.
7) Whether the conviction accorded with the charge and the evidence.
8) Whether the sentence of thirty years was lawful and proper.
25. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The Court must therefore subject the entire evidence to a fresh and exhaustive examination and determine whether the prosecution proved its case beyond reasonable doubt. This is the duty set out in Okeno v Republic [1972] EA 32.
26. The first issue for determination is whether the prosecution proved the essential ingredients of the offence of incest contrary to section 20(1) of the Sexual Offences Act. The trial magistrate found that the prosecution had proved that the complainant was the Appellant's daughter, that the Appellant knew of that relationship and that he had caused his penis to penetrate her vagina, findings which the Appellant challenges on the basis that the evidence was insufficient, inconsistent and not supported by the medical evidence.
27. Section 20(1) of the Sexual Offences Act provides that a 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 incest. This Court has reconsidered and re-evaluated the evidence upon which the trial magistrate reached the impugned findings, bearing in mind its duty as a first appellate court to draw its own conclusions from the evidence while making due allowance for the fact that it did not see or hear the witnesses.
28. The evidence concerning the relationship between the Appellant and the complainant was given by PW1, PW2 and PW3 and was consistent throughout. PW1 testified that the Appellant was her father, PW2, who was the complainant's mother and the Appellant's second wife, confirmed that he was the complainant's father, while PW3 similarly confirmed the relationship. The Appellant did not challenge that evidence in his defence. This Court therefore agrees with the trial magistrate that the prosecution established the father-daughter relationship contemplated by section 20(1) of the Act and that, in view of that relationship, the Appellant was aware that the complainant was his daughter.
29. The evidence on the alleged sexual act came principally from PW1, who testified that the Appellant removed her clothes, removed his own clothes and inserted his penis into her vagina, an act which she stated was repeated when her mother was away from home. She further testified that the Appellant threatened to kill her if she disclosed the matter. The trial magistrate accepted this account and found that it established penetration. This Court has subjected that evidence to its own evaluation together with the circumstances in which the complaint was eventually made and the medical evidence presented by the prosecution.
30. PW4 examined the complainant on 13th October 2023 and found no genital injuries and no spermatozoa. The examination was conducted considerably after the period alleged in the charge, namely between January and March 2021. The medical findings were therefore considered by the trial magistrate in the context of the evidence as a whole. This Court similarly finds that the absence of genital injuries or spermatozoa on examination did not, in the circumstances, exclude the occurrence of penetration during the period alleged, and the medical evidence consequently did not displace the complainant's account.
31. The Appellant's contention that the evidence of penetration required corroboration has been considered in light of section 124 of the Evidence Act, which permits a conviction for a sexual offence on the evidence of the complainant alone where the court believes that evidence and records the reasons for such belief. The Appellant relied on Elizabeth Waithiegeni Gatimu v Republic [2015] KEHC 1136 (KLR) in support of the broader proposition that a conviction cannot stand where the prosecution evidence leaves a reasonable doubt. That principle is not in dispute; the question is whether, upon a re-evaluation of the evidence in this appeal, such doubt arises.
32. In considering that question, this Court has taken into account the delay in disclosure which PW1 explained by stating that the Appellant had threatened to kill her if she disclosed the abuse. She subsequently disclosed the allegations to her mother, after which the matter was reported. The explanation was considered by the trial magistrate in assessing the credibility of PW1, and this Court, having reconsidered the same evidence, finds no reason to reach a different conclusion merely on account of the delay.
33. Upon a consideration of the evidence as a whole, this Court agrees with the trial magistrate's findings that the prosecution proved the sexual act alleged in the charge, the father-daughter relationship between the Appellant and the complainant, and the Appellant's knowledge of that relationship. The evidence does not leave a reasonable doubt as to any of those essential matters. The prosecution accordingly proved the offence of incest contrary to section 20(1) of the Sexual Offences Act beyond reasonable doubt.
34. The second issue for determination is whether the inconsistencies and contradictions identified by the Appellant in the prosecution evidence were material as to render the conviction unsafe. The Appellant's complaint was directed principally at PW1's account that the Appellant defiled her every day for about two months without her raising an alarm or disclosing the matter to her brothers, the treatment notes in which a complaint of toothache was recorded, the medical findings in the PRC and P3 forms, the fact that the complainant was later found in school uniform, and the alleged differences in the evidence of PW1, PW2, PW3 and PW4.
35. As regards the frequency and duration of the alleged defilement, PW1 testified that the Appellant defiled her repeatedly over a period of about two months and threatened to kill her if she told her mother. The Appellant submits that it was improbable that she would remain silent throughout that period, particularly when she was living in the same house with her brothers, and that she would not have screamed or sought their assistance. This Court has considered that contention against PW1's explanation for her silence. The evidence was that the Appellant was her father, that the alleged acts occurred in the home and that he accompanied the acts with threats of death if she disclosed them. The failure to scream or make an immediate complaint is therefore a matter bearing on the assessment of her evidence, but it does not contradict her account of the acts themselves. The trial magistrate considered her explanation and accepted it, and upon re-evaluation this Court finds no material inconsistency arising from the delay in disclosure.
36. The Appellant next relied on the treatment notes, particularly the note bearing serial number 3649, which recorded a complaint of toothache rather than defilement. This Court has considered that record in the context of PW1's evidence that she subsequently became sick and complained of stomach pain before her mother took her to hospital. The fact that one of the treatment notes produced in evidence recorded toothache does not, without more, contradict the allegation of defilement. The medical attendance recorded in that particular note was not itself an investigation of the alleged sexual offence, and the absence of a complaint of defilement from that entry does not establish that the events later narrated by PW1 did not occur. The significance of the note was therefore properly a matter of weight rather than proof of a contradiction in the prosecution case.
37. The Appellant also contended that the medical evidence exonerated him because PW4 found the complainant's external genitalia normal, detected no spermatozoa in the high vaginal swab and recorded negative venereal disease and HIV tests. This Court has considered those findings against the evidence of PW1 and the timing of the examination. PW4 examined the complainant on 13th October 2023, whereas the alleged acts in the charge were said to have occurred between January and March 2021. The medical findings therefore did not positively contradict PW1's evidence that she had been defiled during the period charged. They established the condition found upon examination in 2023, but did not, in the circumstances, exclude the occurrence of the alleged acts more than two years earlier. The trial magistrate was therefore entitled to consider the medical evidence together with the testimony of PW1 rather than treat the absence of physical findings as determinative of the charge.
38. The Appellant further relied on the fact that the complainant was wearing a school uniform when she was subsequently found, submitting that this was inconsistent with her account of having been defiled. This Court has considered the submission but finds no inconsistency. The evidence that the complainant was later found in school uniform does not contradict her account of what occurred at the Appellant's home during the period alleged in the charge, and no evidential connection was demonstrated between the state of her clothing when she was found and the occurrence or non-occurrence of the alleged acts.
39. The Appellant's complaint that the testimonies of PW1, PW2, PW3 and PW4 contained material contradictions has also been considered. PW2 and PW3 were not witnesses to the alleged acts and their evidence concerning the allegations was based on what they subsequently learnt from the complainant and the family circumstances surrounding the complaint. Their evidence could not therefore be expected to reproduce the account given by PW1 as an eyewitness to the acts alleged against her father. The evidence of PW4, on the other hand, concerned the medical examination conducted in October 2023 and the findings made at that time. The differences arising from the different circumstances in which these witnesses acquired their information do not, without more, constitute contradictions on the essential question whether the Appellant defiled PW1.
40. The approach urged by the Appellant finds some support in Paul Kanja Gitari v Republic [2016] KECA 741 (KLR), where the Court of Appeal emphasised the duty of a first appellate court to interrogate and resolve contradictions and inconsistencies in the prosecution evidence, particularly where the evidence relied upon by the prosecution is barely adequate. The Court's concern in that case was with contradictions going to material aspects of the prosecution narrative. That principle has guided this Court in examining each of the matters raised by the Appellant rather than dismissing them merely as minor discrepancies.
41. Upon that examination, this Court finds that none of the matters identified by the Appellant amounts to a material contradiction going to the substance of PW1's allegation that the Appellant defiled her. The evidence concerning the duration and non-disclosure is explained by the threats attributed to the Appellant; the toothache was recorded in only one of the treatment notes and did not purport to record an examination for defilement; the medical findings were made long after the period charged and did not exclude the occurrence of the alleged acts; the school uniform did not contradict the allegation; and the differences between the witnesses are attributable to the different matters within their respective knowledge. The trial magistrate's acceptance of the prosecution evidence was therefore not shown to have resulted from a failure to address any material contradiction. This Court consequently finds that the inconsistencies relied upon by the Appellant did not create a reasonable doubt or render the conviction unsafe.
42. The third issue for determination is whether the medical and documentary evidence was properly admitted and considered. The Appellant challenged the medical evidence principally on the ground that the complainant was examined by Elizabeth Masai, who prepared the medical documents but was not called to testify. He further contended that the medical findings did not support the allegation of penetration.
43. PW4, Gilbert Muga, testified regarding the examination conducted by Elizabeth Masai at Ikutha Level 4 Hospital on 13th October 2023. He explained that Elizabeth Masai no longer worked at the facility and produced the treatment notes and P3 form dated 13th October 2023 as Exhibits 1 and 2. The trial court admitted and considered the documents together with the oral evidence.
44. Section 77 of the Evidence Act permits medical documents to be received in evidence in the circumstances provided by the section. In Joshua Otieno Oguga v Republic [2009] KECA 10 (KLR), the Court of Appeal recognised that a medical report may be produced by a person other than its maker and that an accused person who wishes to have the maker attend court may seek to have the maker summoned. The absence of the maker therefore did not, by itself, render the documents inadmissible.
45. The Appellant also challenged the medical findings, pointing to the absence of genital injuries and spermatozoa, as well as the negative pregnancy and syphilis tests. Those findings were made on 13th October 2023, more than two years after the period specified in the charge. They therefore did not, in the circumstances, exclude the occurrence of penetration during the period alleged.
46. The treatment note bearing serial number 3649, which recorded a complaint of toothache rather than defilement, was also considered. The entry did not purport to record an examination arising from the alleged sexual offence and, considered alongside the other evidence, did not establish that the alleged acts had not occurred.
47. In Naomi Bonareri Angasa v Republic [2021] KEHC 6906 (KLR), the court considered the requirements for admission of medical evidence under section 77 of the Evidence Act. In the present case, PW4 explained the absence of the maker and produced the documents in the course of his evidence. This Court is satisfied that the trial court properly admitted and considered the medical and documentary evidence.
48. The fourth issue for determination is whether the failure by the prosecution to call certain witnesses rendered the prosecution case insufficient.
49. The Appellant submitted that the prosecution failed to call Mary Ndunge, Mwangangi, the arresting officer and the doctor who initially examined the complainant, yet their evidence was material to the determination of the case. Particular emphasis was placed on Mwangangi, who was said to have been in the homestead during the material period and to have seen the Appellant inserting his fingers into the complainant’s vagina. It was submitted that the failure to call these witnesses left material aspects of the prosecution case untested.
50. Section 143 of the Evidence Act provides that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. The prosecution was therefore not obliged to call every person who may have had some knowledge of the circumstances surrounding the alleged offence. The issue is whether the witnesses identified by the Appellant were material witnesses whose evidence was necessary for the determination of the charge.
51. In Paul Kanja Gitari v Republic [2016] KECA 741 (KLR), the Court of Appeal held that although section 143 of the Evidence Act does not require the calling of any particular number of witnesses, where the prosecution evidence is barely adequate, failure to call vital witnesses may justify an adverse inference against the prosecution. The Court's reasoning was that such witnesses may provide evidence capable of resolving material matters in dispute. The principle therefore applies where the uncalled witness had material evidence to offer and the evidence already on record is insufficient without it.
52. In the present case, Mary Ndunge was not shown to have witnessed the alleged acts. Her relevance arose from the complainant's reference to her in relation to the circumstances surrounding the disclosure. Her evidence could have provided additional information, but her absence did not leave the central allegation incapable of determination.
53. Mwangangi was one of the complainant's brothers who lived in the homestead during the material period. Although the Appellant placed significance on his alleged observation, there was no evidence from Mwangangi himself confirming that he witnessed the alleged acts. His absence therefore did not, on the evidence before the trial court, create a gap of such magnitude as to make the prosecution case barely adequate.
54. The complaint concerning the arresting officer is not borne out by the record, since PW5, IP Peter Onduso, testified concerning the report, investigations, recovery of the complainant's birth certificate and the Appellant's arrest. There was therefore evidence before the trial court on the relevant investigative steps. As for the doctor who initially examined the complainant, the failure to call that practitioner did not by itself render the medical aspect of the prosecution case insufficient, particularly in view of the evidence subsequently given by PW4.
55. This Court has considered the witnesse
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