(Being an Appeal against Chief Magistrate’s Court at Malindi Hon. Onalo J.K Olga Senior Resident Magistrate delivered on 12 th May, 2023)
The Appellant was charged with the offence of Incest contrary to section 20 (1) of the Sexual Offences Act No.3 of 2006. The particulars of the offence are that on the 25 th March, 2021 at Miareni Village Lango Baya Sub-Location in Malindi Sub-County within Kilifi County, unlawfully caused his penis to penetrate into the vagina of L.K.A a girl aged 11 years who to his knowledge is his niece. 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. The particulars of the offence are that on the 25 th March, 2021 at Miareni Village, Lango Baya Sub-Location, Lango Baya Division in Malindi Sub-County within Kilifi County the appellant unlawfully committed an indecent act by touching the vagina of L.K.A a child aged 11 years using his penis.
The appellant pleaded not guilty to the charges and the matter proceed for hearing with the prosecution calling four witnesses. The Appellant was placed on his defence. He gave a sworn statement and called four witnesses. In a judgement delivered on 12 th May, 2025, the trial magistrate found the Appellant guilty of the offence of incest contrary to section 20 (1) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve seventeen (17) years. The Appellant aggrieved by the conviction and sentence of the trial court has preferred this appeal.
The appellant had raised five grounds of appeal which were the reduced to three arguable issues to wit:
1. That the learned trial magistrate erred in law and fact by convicting the appellant without observing that the ingredients of the offence of defilement were not proved beyond reasonable doubt.
2. That the trial magistrate erred in law and fact for failing to observe that the appellant was not accorded a fair trial guaranteed by Article 25(c) of the Constitution.
3. That the trial magistrate faulted in points of law and fact by failing to observe that the prosecution failed to discharge its burden of proof.
4. The trial magistrate erred in law and fact by failing to observe that the prosecution evidence mainly medical evidence and the victim’s evidence was unreliable, insufficient, inconsistence and thereby arrived at erroneous decision to convict the appellant.
Prosecution case
PW1 the victim after voire dire examination she was found to be possessed of sufficient intelligence to testify and she gave a sworn statement. Her evidence is that she was aged 11 years at the time she testified in court. She stated that on 25 th March, 2021 she came from school. She found the appellant who is her uncle. He told her to pick a matchbox for him which she did. As she was giving him the matchbox, he grabbed her and pulled her into his house. He told her to remove her clothes but she hesitated. He threw her on the bed and defiled her. He warned her not to tell anyone. She said after the act her vagina was bleeding and the following day, she could not go to school as her private parts were painful. She later informed her aunt Everlyne but she did nothing. She later told Mama Mkubwa that the appellant had defiled her who gave her Kshs. 100/= to go to her mother in Viungoni. She found her mother was not there. She found her father who called her mother. Her mother came in the evening and she told her what had happened. Her mother went and reported the matter to the village elder who advised them to report to the police station. The matter was reported at Lango Baya police station. She was later taken to Bao Lala for examination. She was also examined at Malindi General Hospital. In cross-examination she said she wrote her statement at the police station once. She said she was staying with her grandmother and her two uncles. She said at the time of the incident her grandmother was in her house but the door was closed. She said after the incident she went to sleep with her siblings. She said she told her aunt Everlyne after two days.
PW2, Doctor Moses Rimba of Malindi Sub-County Hospital testified that PW1 was attended to on 11 th May, 2021 and P3 Form filled on 13 th May, 2021. It was the doctors’ findings upon examination that PW1’s hymen was broken, had bruise on labia minora bilaterally and no discharge was seen. He concluded that there was vaginal penetration. Further it was his testimony that an age assessment was done at the dental department which indicated the complainant was 11 years at the time. During cross examination, he stated that he did not examine the minor and that the minor was examined at Bao Lala and that her tears were not healed and not fresh adding that it was difficult to check extent of injuries on the labia for a 11 years old minor.
Josephine Zawadi Lewa, PW3 testified that the appellant was her husband’s brother and that the complainant was her child. She testified that the complainant informed her that she had been defiled by her uncle. This she had told her while they were at home in Viungoni. She further testified that PW1 was staying with her uncles and grandmother. It was her testimony during cross examination that she left Lango Baya when PW1 was 6 years. For all the years the complainant stayed with the appellant nothing had ever happened to her. She added that she knew about the ordeal in April when PW1 went to her home. She further testified that she had no quarrel with the appellant and added that the complainant stated that the appellant sent her a phone and not the matchstick.
PC Kelvin Kimeli No. 241572, PW4 who was the investigating officer testified that on 10 th May, 2021 he received the complainant and her mother who alleged that PW1 had been defiled by the uncle. It was his testimony that the complainant narrated that her uncle sent her phone that was with the grandmother and when she got to the house, she gave him the phone and he grabbed her, put her on the bed, removed her clothes, removed his penis and defiled her. It is his further testimony that the complainant informed him that she reported the matter to Aunt Everlyne who gave her Kshs. 100 not to tell anyone and also reported to a sister to the mother. He added that the complainant was staying with her grandmother and attempt to reach out to other relatives was futile. During cross examination, he reiterated that the incident happened on 25 th March, 2021 and report was made on 10 th May, 2021. He also testified that he interrogated the complainant twice and the story remained similar. It was his testimony that if the child had said a different thing it may be as a result of taking too long to give evidence, adding that because of her age, telling her what to say would be an issue as she is likely to have forgotten by the following day. He also reiterated that the complainant said she told Everlyne after a few days
Defence case
The appellant testified as DW1. He told the court that the complainant was a child of his elder brother. He stated that on 25 th March, 2021 while at his place of work he received report that it was being said that he had defiled the complainant. The following day he was arrested. He said the complainant and her sibling were staying with him since when they were young. He said he is the one who was taking care of them as their father was residing in Mombasa. He said there was pull and push between him and the complainant’s mother who wanted to take the children from him but he refused. He denied defiling the complainant and added that it was a frame up by the complainant’s mother because he refused her from taking the children form him.
DW2 Kelvin Kahindi Kanga is the brother to the complainant. He said that he is aged 19 years. He said they lived with the appellant who is their uncle and their grandmother. He said that their mother separated with their father and got remarried and since then they have been living with their uncle the appellant. He said that it is not true that the appellant defiled the complainant as alleged. It is his testimony that they go to the same school with the complainant and they would usually arrive home at around 6pm and find the appellant having arrived home from work. He said the complainant used to sleep with their grandmother. He said that there were grudges between the appellant and his mother because the appellant has refused them to go and stay with their mother.
DW3 Dama Karisa Masha is the mother of the appellant. She said she stays with the complainant and her siblings because their parents have divorced. She said she sleeps with the complainant and she could have been the first person to know if she had been defiled. She said there has been a long-standing grudge between them and the complainant’s mother as she quarrels them every time she comes for the children. It is her evidence that the complainant’s mother had vowed to teach them a lesson.
DW4 Mashaka Kazungu Kahindi a village elder for Lango Baya. He told the court that there was a time he had a case with the complainant’s mother and she threatened to teach the appellant a lesson. He said the incident herein was immediately after this incident happened. He said he has known the appellant for long and could not believe that he defiled the minor.
Appellants submissions
The appellant submitted that the prosecution did not prove the charges beyond reasonable doubt. The appellant faulted the trial court in failing to address the contradictions, inconsistencies and discrepancies in the evidence of PW1 and PW3. The appellant pointed out that the evidence of PW1 and PW2 was contradictory as to when the offence was committed with PW1 talking of 25 th March, 2021 while PW2 talked of April, 2021. The appellant faulted the trial court for failing to consider the duration taken by the complainant to report the incident. He relied on several authorities among them the case of Kazungu Mramba Mweni vs R Criminal Appeal No. 220 of 2007. The appellant further submitted that the trial court failed to address itself on the evidence adduced and the finding that the prosecution had proved the case was erroneous. He submitted that the prosecution never proved the element of penetration. The appellant further faulted the trial court for relying on Section 124 of the Evidence Act in the glare of the contradictions and inconsistencies in the prosecution evidence which needed to be corroborated. The appellant faulted the trial court for failing to consider his defence and particularly the evidence of DW2 the brother to the complainant.
Respondent’s submissions
The Respondent submitted that the prosecution proved all the essential ingredients of the offence. It was submitted that the prosecution laid evidence to show that the appellant was related to the complainant.
On the element of penetration, the respondent submitted that PW1’s evidence was corroborated by PW2 who produced the medical evidence as Treatment notes (Exhibit 1), P3 Form (Exhibit 2), Laboratory results (Exhibit 3 (a) & 6) and Age Assessment (Exhibit 4) and urged the court to find that the trial court rightly found that there was penetration.
On the ground that the appellant was not accorded a fair trial contrary to Article 25(c) of the Constitution, the respondent submitted that the appellant did not state and identify how his right to fair trial was breached.
It was the Respondents submissions that there were no contradictions in the evidence adduced by the four witnesses who gave cogent, consistent and corroborative evidence that was overwhelming against the appellant. They cited Richard Munene v Republic [2018] e KLR and principles laid down by the Court of Appeal in the case of Erick Onyango Ondeng’ v Republic (2014) e KLR where the court cited with approval the Ugandan case of Twehangane Alfred vs Uganda (2003) UGCA that not all contradictions that warrant rejection of witnesses’ evidence.
The Respondent cross-appealed on the sentence meted out to the Appellant of seventeen (17) years. It was submitted that the same was unlawful as the court ought to have sentenced the Appellant to life imprisonment as provided for in law. They cited Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR).
The respondent urged the court to find that there are no sufficient grounds to interfere with the finding of the trial court and the appeal should be dismissed.
Analysis and determination.
This being the first appeal, the duty of the court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own independent decision with a caution that it did not have the opportunity to hear and see the witnesses testify. This is the principle laid down in the case of Okeno vs Republic (1972) E.A 32 where the court held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witnesses testify.”
Bearing the foregoing in mind, it must be remembered that the prosecution bears the duty to prove every element of a criminal offence beyond reasonable doubt.
In the instant case the accused was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act which provides:
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge is 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 indecent act was obtained with the consent of the female person.”
From the foregoing provision, in order for the offence of incest to be proved, the prosecution was required to prove either penetration or indecent act. In addition to that the prosecution must prove the relationship between the accused and the complainant. In the instant case the appellant did not deny that the complainant was his niece. Therefore, there is no dispute as to the relationship between the appellant and complainant. It is also not in dispute that the appellant was well known to the complainant as he was living with her and thus chances of mistaken identity are very remote.
The main issue for determination is whether the prosecution proved the element of penetration or indecent act. It cannot be gainsaid that the trial court relied on the evidence of the complainant which it found was corroborated by the medical evidence tendered by PW2. The appellant alluded to contradictions in the evidence of PW1 and PW2 as to the date when the alleged offence was committed. He submitted that PW1 said the offence was committed on 25 th March, 2021 while PW2 talked of April, 2021. The appellant also cited contradictions between the evidence of PW1 and PW3 as to whether the appellant sent the complainant for a matchbox or mobile phone. The trial court in it’s finding noted that the said contradictions were minor and did not call for the rejection of the evidence of the said witnesses. She relied on the case of Philip Nzaka Watu vs Republic (2016) e KLR where the court expressed itself thus:
“It cannot be again said that to find a conviction in a criminal case, where the trial court has to be satisfied of the accused persons guilty beyond reasonable doubt, the prosecution evidence must be cogent, credible and trust worth. Evidence that is obviously self-contradictory in material particulars or which is a mare amalgam of inconsistent versions of the same event, differing fundamentally from one purported eye witness to another cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistencies in evidence may signify veracity and honesty just as unusual uniformity may signal fabrication and coaching of witnesses…”
It is therefore clear from the above decision that not all inconsistencies will lead the court to reject the evidence of a witness. In the instant case the trial magistrate satisfied herself that the complainant was truthful. I have equally evaluated the evidence of the complainant. She stated at length that the appellant lured her to the house and defiled her. She informed her aunt Everlyne who did nothing. This was after a few days. She also informed Mama Mkubwa who gave her Kshs. 100/= which she used as fare to go to her mother at Viungoni and informed her. The complainant’s recollection of what happened was consistent and she was clearly telling the truth and I cannot fault the trial court in believing in her evidence. The alleged inconsistencies alluded to by the complainant did not in any way water down the evidence by the complainant.
The appellant faulted the trial court for not considering that it took so long for the matter to be reported. I have evaluated the evidence tendered by the complainant and it is clear that the complainant first reported the incident to her aunts who took no action. The trial court rightly addressed this issue and found that the delay in making the report was duly explained.
Further to the foregoing, the medical evidence adduced by PW2 showed that upon examination, the complainant’s hymen was broken and she had bruises on labia minora. PW2 concluded that there was penetration. This medical evidence corroborates the complainant’s evidence that she was defiled.
On identification of the appellant as the perpetrator, there is no doubt that the complainant was staying with the appellant. The appellant was well known to her and chances of mistaken identity are very remote.
The appellant alleged violation of his constitutional right to fair trial contrary to Article 25(c) of the Constitution. However, the appellant has not identified the rights which have been violated. This ground must fail.
The appellant alleged that the charges were a fabrication because he had a grudge with the complainant’s mother. He called witnesses to support him on this line of defence. The appellant’s assertion is that the mother of the complainant was not happy with him because he had refused her to live with the children. The complainant’s mother categorically denied any grudge with the appellant when cross-examined. Again, the complainant in her testimony she was consistent on what happened. She never at any time alluded to have been coached by her mother to testify against the appellant. She was categorical that before she opted to report to her mother, she had informed her aunts who did nothing. I find the appellant’s defence that he was framed by the complainant’s mother untenable.
From the foregoing I am not persuaded that the appellant’s appeal is merited.
The respondent cross-appealed on the sentence imposed by the trial court. It was submitted that the sentence was unlawful in view of the proviso to Section 20(1) of the Sexual Offences Act which provides:
“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 its shall be immaterial that the act which causes penetration or indecent act was with the consent of the female person.”
From the evidence adduced before the trial court and particularly the age assessment report produced by PW2, it was clear that the complainant was aged 11 years. The proviso to Section 20(1) of the Sexual Offence Act is clear that in the event that the female person is under the age of eighteen, the sentence to be imposed is life imprisonment. The appellant was sentenced to serve seventeen years. the trial court relied on the case of Chingongo Dzuya vs Republic Criminal Appeal No. 31 of 2022. In that case the Court of Appeal discussed at lengthy the decision of the Supreme Court in Muruatetu 1 and 2. It dealt with the constitutionality of the mandatory and mandatory minimum sentences. It pointed out that the minimum sentence prescribed by the Sexual Offences Act is not unconstitutional thus the trial court are at liberty to impose the same. The Court of Appeal however, pointed out that the imposition of the minimum sentences does not meet the constitutional threshold particularly Article 28 of the Constitution. In other words, the Court of Appeal allowed trial courts to exercise discretion in line with the constitutional provisions. The trial court in this case exercised such discretion and I have no reason to disturb the sentence imposed.
The upshot is that the appeal both on conviction and sentence is dismissed and the finding of the trial court both on conviction and sentence is upheld.
Dated, signed and delivered virtually this 28 th day of May, 2026
In the presence of
1. Appellant appearing virtually
2. Ms. Mutua for the respondent appearing virtually
3. Ms. Millicent Otwo court assistant
The Appellant was charged with the offence of Incest contrary to section 20 (1) of the Sexual Offences Act No.3 of 2006. The particulars of the offence are that on the 25 th March, 2021 at Miareni Village Lango Baya Sub-Location in Malindi Sub-County within Kilifi County, unlawfully caused his penis to penetrate into the vagina of L.K.A a girl aged 11 years who to his knowledge is his niece. 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. The particulars of the offence are that on the 25 th March, 2021 at Miareni Village, Lango Baya Sub-Location, Lango Baya Division in Malindi Sub-County within Kilifi County the appellant unlawfully committed an indecent act by touching the vagina of L.K.A a child aged 11 years using his penis.
The appellant pleaded not guilty to the charges and the matter proceed for hearing with the prosecution calling four witnesses. The Appellant was placed on his defence. He gave a sworn statement and called four witnesses. In a judgement delivered on 12 th May, 2025, the trial magistrate found the Appellant guilty of the offence of incest contrary to section 20 (1) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve seventeen (17) years. The Appellant aggrieved by the conviction and sentence of the trial court has preferred this appeal.
The appellant had raised five grounds of appeal which were the reduced to three arguable issues to wit:
1. That the learned trial magistrate erred in law and fact by convicting the appellant without observing that the ingredients of the offence of defilement were not proved beyond reasonable doubt.
2. That the trial magistrate erred in law and fact for failing to observe that the appellant was not accorded a fair trial guaranteed by Article 25(c) of the Constitution.
3. That the trial magistrate faulted in points of law and fact by failing to observe that the prosecution failed to discharge its burden of proof.
4. The trial magistrate erred in law and fact by failing to observe that the prosecution evidence mainly medical evidence and the victim’s evidence was unreliable, insufficient, inconsistence and thereby arrived at erroneous decision to convict the appellant.
Prosecution case
PW1 the victim after voire dire examination she was found to be possessed of sufficient intelligence to testify and she gave a sworn statement. Her evidence is that she was aged 11 years at the time she testified in court. She stated that on 25 th March, 2021 she came from school. She found the appellant who is her uncle. He told her to pick a matchbox for him which she did. As she was giving him the matchbox, he grabbed her and pulled her into his house. He told her to remove her clothes but she hesitated. He threw her on the bed and defiled her. He warned her not to tell anyone. She said after the act her vagina was bleeding and the following day, she could not go to school as her private parts were painful. She later informed her aunt Everlyne but she did nothing. She later told Mama Mkubwa that the appellant had defiled her who gave her Kshs. 100/= to go to her mother in Viungoni. She found her mother was not there. She found her father who called her mother. Her mother came in the evening and she told her what had happened. Her mother went and reported the matter to the village elder who advised them to report to the police station. The matter was reported at Lango Baya police station. She was later taken to Bao Lala for examination. She was also examined at Malindi General Hospital. In cross-examination she said she wrote her statement at the police station once. She said she was staying with her grandmother and her two uncles. She said at the time of the incident her grandmother was in her house but the door was closed. She said after the incident she went to sleep with her siblings. She said she told her aunt Everlyne after two days.
PW2, Doctor Moses Rimba of Malindi Sub-County Hospital testified that PW1 was attended to on 11 th May, 2021 and P3 Form filled on 13 th May, 2021. It was the doctors’ findings upon examination that PW1’s hymen was broken, had bruise on labia minora bilaterally and no discharge was seen. He concluded that there was vaginal penetration. Further it was his testimony that an age assessment was done at the dental department which indicated the complainant was 11 years at the time. During cross examination, he stated that he did not examine the minor and that the minor was examined at Bao Lala and that her tears were not healed and not fresh adding that it was difficult to check extent of injuries on the labia for a 11 years old minor.
Josephine Zawadi Lewa, PW3 testified that the appellant was her husband’s brother and that the complainant was her child. She testified that the complainant informed her that she had been defiled by her uncle. This she had told her while they were at home in Viungoni. She further testified that PW1 was staying with her uncles and grandmother. It was her testimony during cross examination that she left Lango Baya when PW1 was 6 years. For all the years the complainant stayed with the appellant nothing had ever happened to her. She added that she knew about the ordeal in April when PW1 went to her home. She further testified that she had no quarrel with the appellant and added that the complainant stated that the appellant sent her a phone and not the matchstick.
PC Kelvin Kimeli No. 241572, PW4 who was the investigating officer testified that on 10 th May, 2021 he received the complainant and her mother who alleged that PW1 had been defiled by the uncle. It was his testimony that the complainant narrated that her uncle sent her phone that was with the grandmother and when she got to the house, she gave him the phone and he grabbed her, put her on the bed, removed her clothes, removed his penis and defiled her. It is his further testimony that the complainant informed him that she reported the matter to Aunt Everlyne who gave her Kshs. 100 not to tell anyone and also reported to a sister to the mother. He added that the complainant was staying with her grandmother and attempt to reach out to other relatives was futile. During cross examination, he reiterated that the incident happened on 25 th March, 2021 and report was made on 10 th May, 2021. He also testified that he interrogated the complainant twice and the story remained similar. It was his testimony that if the child had said a different thing it may be as a result of taking too long to give evidence, adding that because of her age, telling her what to say would be an issue as she is likely to have forgotten by the following day. He also reiterated that the complainant said she told Everlyne after a few days
Defence case
The appellant testified as DW1. He told the court that the complainant was a child of his elder brother. He stated that on 25 th March, 2021 while at his place of work he received report that it was being said that he had defiled the complainant. The following day he was arrested. He said the complainant and her sibling were staying with him since when they were young. He said he is the one who was taking care of them as their father was residing in Mombasa. He said there was pull and push between him and the complainant’s mother who wanted to take the children from him but he refused. He denied defiling the complainant and added that it was a frame up by the complainant’s mother because he refused her from taking the children form him.
DW2 Kelvin Kahindi Kanga is the brother to the complainant. He said that he is aged 19 years. He said they lived with the appellant who is their uncle and their grandmother. He said that their mother separated with their father and got remarried and since then they have been living with their uncle the appellant. He said that it is not true that the appellant defiled the complainant as alleged. It is his testimony that they go to the same school with the complainant and they would usually arrive home at around 6pm and find the appellant having arrived home from work. He said the complainant used to sleep with their grandmother. He said that there were grudges between the appellant and his mother because the appellant has refused them to go and stay with their mother.
DW3 Dama Karisa Masha is the mother of the appellant. She said she stays with the complainant and her siblings because their parents have divorced. She said she sleeps with the complainant and she could have been the first person to know if she had been defiled. She said there has been a long-standing grudge between them and the complainant’s mother as she quarrels them every time she comes for the children. It is her evidence that the complainant’s mother had vowed to teach them a lesson.
DW4 Mashaka Kazungu Kahindi a village elder for Lango Baya. He told the court that there was a time he had a case with the complainant’s mother and she threatened to teach the appellant a lesson. He said the incident herein was immediately after this incident happened. He said he has known the appellant for long and could not believe that he defiled the minor.
Appellants submissions
The appellant submitted that the prosecution did not prove the charges beyond reasonable doubt. The appellant faulted the trial court in failing to address the contradictions, inconsistencies and discrepancies in the evidence of PW1 and PW3. The appellant pointed out that the evidence of PW1 and PW2 was contradictory as to when the offence was committed with PW1 talking of 25 th March, 2021 while PW2 talked of April, 2021. The appellant faulted the trial court for failing to consider the duration taken by the complainant to report the incident. He relied on several authorities among them the case of Kazungu Mramba Mweni vs R Criminal Appeal No. 220 of 2007. The appellant further submitted that the trial court failed to address itself on the evidence adduced and the finding that the prosecution had proved the case was erroneous. He submitted that the prosecution never proved the element of penetration. The appellant further faulted the trial court for relying on Section 124 of the Evidence Act in the glare of the contradictions and inconsistencies in the prosecution evidence which needed to be corroborated. The appellant faulted the trial court for failing to consider his defence and particularly the evidence of DW2 the brother to the complainant.
Respondent’s submissions
The Respondent submitted that the prosecution proved all the essential ingredients of the offence. It was submitted that the prosecution laid evidence to show that the appellant was related to the complainant.
On the element of penetration, the respondent submitted that PW1’s evidence was corroborated by PW2 who produced the medical evidence as Treatment notes (Exhibit 1), P3 Form (Exhibit 2), Laboratory results (Exhibit 3 (a) & 6) and Age Assessment (Exhibit 4) and urged the court to find that the trial court rightly found that there was penetration.
On the ground that the appellant was not accorded a fair trial contrary to Article 25(c) of the Constitution, the respondent submitted that the appellant did not state and identify how his right to fair trial was breached.
It was the Respondents submissions that there were no contradictions in the evidence adduced by the four witnesses who gave cogent, consistent and corroborative evidence that was overwhelming against the appellant. They cited Richard Munene v Republic [2018] e KLR and principles laid down by the Court of Appeal in the case of Erick Onyango Ondeng’ v Republic (2014) e KLR where the court cited with approval the Ugandan case of Twehangane Alfred vs Uganda (2003) UGCA that not all contradictions that warrant rejection of witnesses’ evidence.
The Respondent cross-appealed on the sentence meted out to the Appellant of seventeen (17) years. It was submitted that the same was unlawful as the court ought to have sentenced the Appellant to life imprisonment as provided for in law. They cited Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR).
The respondent urged the court to find that there are no sufficient grounds to interfere with the finding of the trial court and the appeal should be dismissed.
Analysis and determination.
This being the first appeal, the duty of the court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own independent decision with a caution that it did not have the opportunity to hear and see the witnesses testify. This is the principle laid down in the case of Okeno vs Republic (1972) E.A 32 where the court held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witnesses testify.”
Bearing the foregoing in mind, it must be remembered that the prosecution bears the duty to prove every element of a criminal offence beyond reasonable doubt.
In the instant case the accused was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act which provides:
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge is 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 indecent act was obtained with the consent of the female person.”
From the foregoing provision, in order for the offence of incest to be proved, the prosecution was required to prove either penetration or indecent act. In addition to that the prosecution must prove the relationship between the accused and the complainant. In the instant case the appellant did not deny that the complainant was his niece. Therefore, there is no dispute as to the relationship between the appellant and complainant. It is also not in dispute that the appellant was well known to the complainant as he was living with her and thus chances of mistaken identity are very remote.
The main issue for determination is whether the prosecution proved the element of penetration or indecent act. It cannot be gainsaid that the trial court relied on the evidence of the complainant which it found was corroborated by the medical evidence tendered by PW2. The appellant alluded to contradictions in the evidence of PW1 and PW2 as to the date when the alleged offence was committed. He submitted that PW1 said the offence was committed on 25 th March, 2021 while PW2 talked of April, 2021. The appellant also cited contradictions between the evidence of PW1 and PW3 as to whether the appellant sent the complainant for a matchbox or mobile phone. The trial court in it’s finding noted that the said contradictions were minor and did not call for the rejection of the evidence of the said witnesses. She relied on the case of Philip Nzaka Watu vs Republic (2016) e KLR where the court expressed itself thus:
“It cannot be again said that to find a conviction in a criminal case, where the trial court has to be satisfied of the accused persons guilty beyond reasonable doubt, the prosecution evidence must be cogent, credible and trust worth. Evidence that is obviously self-contradictory in material particulars or which is a mare amalgam of inconsistent versions of the same event, differing fundamentally from one purported eye witness to another cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistencies in evidence may signify veracity and honesty just as unusual uniformity may signal fabrication and coaching of witnesses…”
It is therefore clear from the above decision that not all inconsistencies will lead the court to reject the evidence of a witness. In the instant case the trial magistrate satisfied herself that the complainant was truthful. I have equally evaluated the evidence of the complainant. She stated at length that the appellant lured her to the house and defiled her. She informed her aunt Everlyne who did nothing. This was after a few days. She also informed Mama Mkubwa who gave her Kshs. 100/= which she used as fare to go to her mother at Viungoni and informed her. The complainant’s recollection of what happened was consistent and she was clearly telling the truth and I cannot fault the trial court in believing in her evidence. The alleged inconsistencies alluded to by the complainant did not in any way water down the evidence by the complainant.
The appellant faulted the trial court for not considering that it took so long for the matter to be reported. I have evaluated the evidence tendered by the complainant and it is clear that the complainant first reported the incident to her aunts who took no action. The trial court rightly addressed this issue and found that the delay in making the report was duly explained.
Further to the foregoing, the medical evidence adduced by PW2 showed that upon examination, the complainant’s hymen was broken and she had bruises on labia minora. PW2 concluded that there was penetration. This medical evidence corroborates the complainant’s evidence that she was defiled.
On identification of the appellant as the perpetrator, there is no doubt that the complainant was staying with the appellant. The appellant was well known to her and chances of mistaken identity are very remote.
The appellant alleged violation of his constitutional right to fair trial contrary to Article 25(c) of the Constitution. However, the appellant has not identified the rights which have been violated. This ground must fail.
The appellant alleged that the charges were a fabrication because he had a grudge with the complainant’s mother. He called witnesses to support him on this line of defence. The appellant’s assertion is that the mother of the complainant was not happy with him because he had refused her to live with the children. The complainant’s mother categorically denied any grudge with the appellant when cross-examined. Again, the complainant in her testimony she was consistent on what happened. She never at any time alluded to have been coached by her mother to testify against the appellant. She was categorical that before she opted to report to her mother, she had informed her aunts who did nothing. I find the appellant’s defence that he was framed by the complainant’s mother untenable.
From the foregoing I am not persuaded that the appellant’s appeal is merited.
The respondent cross-appealed on the sentence imposed by the trial court. It was submitted that the sentence was unlawful in view of the proviso to Section 20(1) of the Sexual Offences Act which provides:
“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 its shall be immaterial that the act which causes penetration or indecent act was with the consent of the female person.”
From the evidence adduced before the trial court and particularly the age assessment report produced by PW2, it was clear that the complainant was aged 11 years. The proviso to Section 20(1) of the Sexual Offence Act is clear that in the event that the female person is under the age of eighteen, the sentence to be imposed is life imprisonment. The appellant was sentenced to serve seventeen years. the trial court relied on the case of Chingongo Dzuya vs Republic Criminal Appeal No. 31 of 2022. In that case the Court of Appeal discussed at lengthy the decision of the Supreme Court in Muruatetu 1 and 2. It dealt with the constitutionality of the mandatory and mandatory minimum sentences. It pointed out that the minimum sentence prescribed by the Sexual Offences Act is not unconstitutional thus the trial court are at liberty to impose the same. The Court of Appeal however, pointed out that the imposition of the minimum sentences does not meet the constitutional threshold particularly Article 28 of the Constitution. In other words, the Court of Appeal allowed trial courts to exercise discretion in line with the constitutional provisions. The trial court in this case exercised such discretion and I have no reason to disturb the sentence imposed.
The upshot is that the appeal both on conviction and sentence is dismissed and the finding of the trial court both on conviction and sentence is upheld.
Dated, signed and delivered virtually this 28 th day of May, 2026
In the presence of
1. Appellant appearing virtually
2. Ms. Mutua for the respondent appearing virtually
3. Ms. Millicent Otwo court assistant