(Being an Appeal arising from the Judgement and sentence of Hon. D. Odhiambo (SRM) delivered on 29/4/2024 in Mombasa CR. SO Case No. E019 of 2023)
1. The accused was charged with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are diverse dates between 1st May 2021and 3rd March 2023 at Vijiweni area in Likoni sub-county within Mombasa County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of LMW a child aged 12 years who his knowledge was his daughter.
2. In the alternative, the accused is charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars of the offence are that on diverse dates and time between 1st May 2021 and 3rd March 2023 at Vijiweni area in Likoni sub-county within Mombasa County, the accused intentionally and unlawfully touched the vagina of LMW a child aged 12 years with his penis.
3. The trial Magistrate considered the evidence of 4 prosecution witnesses and 1 defence witness and found the appellant guilty of the offence of incest. Upon conviction, the appellant was sentenced to serve 30 years imprisonment.
4. Being aggrieved by the conviction and sentence by the trial court, the appellant preferred an appeal against the entire judgement of the court. The appeal is based on the following grounds:
a) That the trial court erred in Law and fact by failing to see that the charge was defective.
b) That the trial court erred in Law and fact by failing to find that the evidence of identification did not meet the threshold of beyond reasonable doubt.
c) The trial court erred in law and fact by failing to find that the prosecution case was marked by massive inconsistencies and discrepancies.
d) The trial court erred in law and fact by failing to see that the element of consanguinity in the relationship between him and the complainant.
e) The trial court erred in Law and fact by failing to observe that the credibility of the evidence of the complainant was wanting.
f) The trial court erred in law and fact by imposing a sentence that is harsh and excessive.
5. PW1, the complainant,lived at Vijiweni and was a form one student at Bububu Elite Secondary School. She was born on 18/8/2008.She produced a copy of her birth certificate (P. Exhibit 1). PW1 stated that the appellant is her father.
6. Around May 2021, PW1 stated, she lived with the appellant and her two younger siblings RS and HE. Their mother, PW1 stated, had travelled to Saudi Arabia to get employment.
7. On 1/5/021 in the evening at around 7:00 pm, PW1 stated, while she was at home with her younger siblings , her dad who was a boda boda rider went home, prepared food and they ate and slept. PW1, further, stated that they lived in a single room divided by a curtain. Her dad slept on the bed while the complainant and her siblings slept on the floor.
8. At around 10:00 pm, PW1 stated, her Dad went to where she slept, took her to a `seat near his bed and removed her pant after lifting her clothes and “akachukua sehemu yake ya kukojoa akaingisha sehemu yagu ya kukojoa”. (He took his part for urinating and inserted into my part for urinating).
9. At that time, PW1 her siblings aged 10 and 5 years were deeply asleep. PW1, further, stated that she was unable to resist because she was sick and that she tried to scream but nobody heard.
10. The following day, PW1 stated, she bled excessively from her private parts and did not go to school because she was sick but the appellant defiled her again and left for his place of work. At around 1:00 pm,PW1 stated, the appellant came back to cook lunch and after cooking while she was asleep, he removed her clothes and defiled her again.
11. After two days, PW1 stated, she fled to their neighbour one Joseph who called her paternal grandfather Javan Ogada. The following day, PW1 stated, she boarded a matatu to their grandfather’s place and told him what happened. Her grandfather, PW1 stated, called her mom who sent her money and she was enrouted to Nancy George Academy in Kakamega.
12. While in her new school, after boarding for 1 ½ months PW1 stated, the matron examined her and found she was pregnant and she was chased out of the school.At the school, PW1 stated, her grandfather picked her and she was taken to stay with her aunt Nanyama where her Dad picked her and took her home.
13. At home, PW1 stated, her Dad engaged a doctor who took a piece of scissors and inserted into her private parts and gave her tablets to take and after sometime, she bled heavily and her Dad took her to her grandfather’s place. PW1 stated she went to the toilet and tried to push very hard when “mtoto alitoka” (the child came out).
14. In January 2023, after her mum came back PW1 stated, they went back to Vijiweni, Mombasa where her dad lived. When she went to get employment and her siblings went to school, PW1 stated, Dad went home and fondled her breasts and touched her buttocks. He did this, PW1 stated, 4 times.PW1, further, stated that her mother reported this matter at Vijiweni Police station and they went to Manyata Hospital where she was examined.
15. PW2, Evan Nyayieni, is a Clinical Officer at Likoni sub-county Hospital. PW2, stated that the complainant was examined on 29/3/2023 when she was taken to hospital by her mother. PW2 stated that the complainant’s hymen was broken with an old scar. PW2 wrote the complaint notes and filled her PRC form and P3 form. Treatment produced as P. Exhibit 2. PRC form (P. Exhibit 3) and P3 form produced as P.Exhibit 4.
16. On cross-examination, PW2, stated, that the complainant’s hymen could be broken in some ways but in this case, it was by penial penetration.
17. PW3, Phoebe Safari, stated that she is a saloonist and lives in Mtongwe. She also stated that the complainant is her daughter and the appellant is her husband.
18. In 2021, PW3 stated, she went to work out the country and left her children with their father in Lugari. After she came, in January 2023, PW3 stated they went back to Mombasa and her daughter opened up to her. PW1 informed,PW1 stated, that her father was having sex with her and had made her pregnant but she aborted. She also told her father still wanted more sex with her.
19. In his defence, the appellant unsworn testimony and he stated that complainant studied in Lugari Primary School and she used to run away from home and sleep outside even when her mother was around and they beat her for that.The appellant, further stated that she brought up the complainant to Mombasa and no issue was arose.
20. The issues for determination by the court in this matter:
a) Whether the trial magistrate erred in law and fact in finding that the prosecution has proved the charge of incest against the appellant beyond reasonable doubt.
b) Whether sentence imposed on appellant was harsh and excessive.
21. In 1 st appeal this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see Mark Oiruri Mose -vs- Republic (2013)eKLR)
22. Section 20(1) of the Sexual Offences Act provides;
“Any male person who commits an indecent act or an act which causes penetration with a female person who to his knowledge his daughter, granddaughter, siter, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less that 10 years, provided that if it is alleged in information or charge that the female person is under the age of eighteen years, the accused shall be liable to life imprisonment and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person”.
23. The ingredients of the offence of incest are;
1. Relation of the appellant and the complainant.
2. Whether the appellant committed indecent act or penetrated into the complainants’ genitalia.
3. Age of the victim.
On the relationship of the appellant and complainant, there was no contestation they are father and daughter.
24. As regards penetration, the complainant narrated that her mother travelled to Saudi Arabia for work and she lived with appellant and her two younger siblings in Vijiweni, Mombasa, in a single room. The appellant slept on the bed and complainant and her siblings slept on the floor.
25. On 1/5/2021 in the evening at around 10:00 pm when her siblings had slept, took her to a seat near his bed and removed her pant after lifting her clothes. Thereafter, PW1” akachukua sehemu yake a kukojoa akaingisha sehemu yangu ya kukojoa”. (He took his part for urinating and inserted in to her part for urinating). The following days, PW1 stated she did she bled a lot from her private parts and did not go to school.
26. At around 1:00 pm, the appellant went home to cook lunch and again removed the complainants’ clothes and defiled her again.After ½ months, while she was in school, the complainant was found to be pregnant and was chased away. The father later procured an abortion for her.
27. When her mother came back in 2023, the complainant shared the ordeal she had undergone and she took her to hospital. PW2, a Clinical Officer found that the complainant’s hymen was broken ad had an old scar and formed the opinion that the penetration was caused by penial penetration.
28. The appellant gave unsworn testimony claiming she used to run away from home and slept out even when her mother was in the country and they beat her up.
In the case of Mercy Kajuju and 24 others vs Republic(2009)(Emukule,J) it was held :
“that, unsworn statements have no probative or value, Unsworn statements are not in evidential sense facts while which either to go to prove or disapprove a point alleged by one party and disputed by another. Facts in issue must be proved and unsworn statements are inappriate subject of evidence”.
Further, in the case of Amber May -vs- Republic (1981 )KLR 129 , the court of Appeal inter alia held:
“............. that unsworn statement is not strictly speaking evidence and the rules of evidence cannot be applied to unsworn statements. It has no probative value, but it should be considered in relation to the whole of evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence on record in the case”.
The probative value of the evidence of the appeal is very weak. It is the court’s finding that the evidence by the complainant that the appellant penetrated her genitalia with his penis was not shaken by the Appellant. This was done by the Appellant who is of cause well known to her.
The age of the complainant is also not disputed. She was born on 18/8/2008 as shown in her birth certificate (P. Exhibit 1). She was therefore aged 12 years on the date of the commission of the alleged offence committed by the appellant. It is therefore, my finding that the prosecution proved its case against the appellant beyond reasonable doubt. The appellant was sentenced to serve 30 years through Section 20 of the Sexual Act provides that the offence prescribed is life sentence for Sexual offences are mandatory. The court, therefore, finding the sentence of 30 years to be unlawful and sentence to the appellant substituted with to serve life imprisonment.
Result of appeal within 14 days.
Dated, signed and delivered online via Microsoft teams this 13th day of July 2026
In the presence of:
Appellant in person
Sirima for DPP
C/A Kipchirchir
1. The accused was charged with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are diverse dates between 1st May 2021and 3rd March 2023 at Vijiweni area in Likoni sub-county within Mombasa County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of LMW a child aged 12 years who his knowledge was his daughter.
2. In the alternative, the accused is charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars of the offence are that on diverse dates and time between 1st May 2021 and 3rd March 2023 at Vijiweni area in Likoni sub-county within Mombasa County, the accused intentionally and unlawfully touched the vagina of LMW a child aged 12 years with his penis.
3. The trial Magistrate considered the evidence of 4 prosecution witnesses and 1 defence witness and found the appellant guilty of the offence of incest. Upon conviction, the appellant was sentenced to serve 30 years imprisonment.
4. Being aggrieved by the conviction and sentence by the trial court, the appellant preferred an appeal against the entire judgement of the court. The appeal is based on the following grounds:
a) That the trial court erred in Law and fact by failing to see that the charge was defective.
b) That the trial court erred in Law and fact by failing to find that the evidence of identification did not meet the threshold of beyond reasonable doubt.
c) The trial court erred in law and fact by failing to find that the prosecution case was marked by massive inconsistencies and discrepancies.
d) The trial court erred in law and fact by failing to see that the element of consanguinity in the relationship between him and the complainant.
e) The trial court erred in Law and fact by failing to observe that the credibility of the evidence of the complainant was wanting.
f) The trial court erred in law and fact by imposing a sentence that is harsh and excessive.
5. PW1, the complainant,lived at Vijiweni and was a form one student at Bububu Elite Secondary School. She was born on 18/8/2008.She produced a copy of her birth certificate (P. Exhibit 1). PW1 stated that the appellant is her father.
6. Around May 2021, PW1 stated, she lived with the appellant and her two younger siblings RS and HE. Their mother, PW1 stated, had travelled to Saudi Arabia to get employment.
7. On 1/5/021 in the evening at around 7:00 pm, PW1 stated, while she was at home with her younger siblings , her dad who was a boda boda rider went home, prepared food and they ate and slept. PW1, further, stated that they lived in a single room divided by a curtain. Her dad slept on the bed while the complainant and her siblings slept on the floor.
8. At around 10:00 pm, PW1 stated, her Dad went to where she slept, took her to a `seat near his bed and removed her pant after lifting her clothes and “akachukua sehemu yake ya kukojoa akaingisha sehemu yagu ya kukojoa”. (He took his part for urinating and inserted into my part for urinating).
9. At that time, PW1 her siblings aged 10 and 5 years were deeply asleep. PW1, further, stated that she was unable to resist because she was sick and that she tried to scream but nobody heard.
10. The following day, PW1 stated, she bled excessively from her private parts and did not go to school because she was sick but the appellant defiled her again and left for his place of work. At around 1:00 pm,PW1 stated, the appellant came back to cook lunch and after cooking while she was asleep, he removed her clothes and defiled her again.
11. After two days, PW1 stated, she fled to their neighbour one Joseph who called her paternal grandfather Javan Ogada. The following day, PW1 stated, she boarded a matatu to their grandfather’s place and told him what happened. Her grandfather, PW1 stated, called her mom who sent her money and she was enrouted to Nancy George Academy in Kakamega.
12. While in her new school, after boarding for 1 ½ months PW1 stated, the matron examined her and found she was pregnant and she was chased out of the school.At the school, PW1 stated, her grandfather picked her and she was taken to stay with her aunt Nanyama where her Dad picked her and took her home.
13. At home, PW1 stated, her Dad engaged a doctor who took a piece of scissors and inserted into her private parts and gave her tablets to take and after sometime, she bled heavily and her Dad took her to her grandfather’s place. PW1 stated she went to the toilet and tried to push very hard when “mtoto alitoka” (the child came out).
14. In January 2023, after her mum came back PW1 stated, they went back to Vijiweni, Mombasa where her dad lived. When she went to get employment and her siblings went to school, PW1 stated, Dad went home and fondled her breasts and touched her buttocks. He did this, PW1 stated, 4 times.PW1, further, stated that her mother reported this matter at Vijiweni Police station and they went to Manyata Hospital where she was examined.
15. PW2, Evan Nyayieni, is a Clinical Officer at Likoni sub-county Hospital. PW2, stated that the complainant was examined on 29/3/2023 when she was taken to hospital by her mother. PW2 stated that the complainant’s hymen was broken with an old scar. PW2 wrote the complaint notes and filled her PRC form and P3 form. Treatment produced as P. Exhibit 2. PRC form (P. Exhibit 3) and P3 form produced as P.Exhibit 4.
16. On cross-examination, PW2, stated, that the complainant’s hymen could be broken in some ways but in this case, it was by penial penetration.
17. PW3, Phoebe Safari, stated that she is a saloonist and lives in Mtongwe. She also stated that the complainant is her daughter and the appellant is her husband.
18. In 2021, PW3 stated, she went to work out the country and left her children with their father in Lugari. After she came, in January 2023, PW3 stated they went back to Mombasa and her daughter opened up to her. PW1 informed,PW1 stated, that her father was having sex with her and had made her pregnant but she aborted. She also told her father still wanted more sex with her.
19. In his defence, the appellant unsworn testimony and he stated that complainant studied in Lugari Primary School and she used to run away from home and sleep outside even when her mother was around and they beat her for that.The appellant, further stated that she brought up the complainant to Mombasa and no issue was arose.
20. The issues for determination by the court in this matter:
a) Whether the trial magistrate erred in law and fact in finding that the prosecution has proved the charge of incest against the appellant beyond reasonable doubt.
b) Whether sentence imposed on appellant was harsh and excessive.
21. In 1 st appeal this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see Mark Oiruri Mose -vs- Republic (2013)eKLR)
22. Section 20(1) of the Sexual Offences Act provides;
“Any male person who commits an indecent act or an act which causes penetration with a female person who to his knowledge his daughter, granddaughter, siter, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less that 10 years, provided that if it is alleged in information or charge that the female person is under the age of eighteen years, the accused shall be liable to life imprisonment and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person”.
23. The ingredients of the offence of incest are;
1. Relation of the appellant and the complainant.
2. Whether the appellant committed indecent act or penetrated into the complainants’ genitalia.
3. Age of the victim.
On the relationship of the appellant and complainant, there was no contestation they are father and daughter.
24. As regards penetration, the complainant narrated that her mother travelled to Saudi Arabia for work and she lived with appellant and her two younger siblings in Vijiweni, Mombasa, in a single room. The appellant slept on the bed and complainant and her siblings slept on the floor.
25. On 1/5/2021 in the evening at around 10:00 pm when her siblings had slept, took her to a seat near his bed and removed her pant after lifting her clothes. Thereafter, PW1” akachukua sehemu yake a kukojoa akaingisha sehemu yangu ya kukojoa”. (He took his part for urinating and inserted in to her part for urinating). The following days, PW1 stated she did she bled a lot from her private parts and did not go to school.
26. At around 1:00 pm, the appellant went home to cook lunch and again removed the complainants’ clothes and defiled her again.After ½ months, while she was in school, the complainant was found to be pregnant and was chased away. The father later procured an abortion for her.
27. When her mother came back in 2023, the complainant shared the ordeal she had undergone and she took her to hospital. PW2, a Clinical Officer found that the complainant’s hymen was broken ad had an old scar and formed the opinion that the penetration was caused by penial penetration.
28. The appellant gave unsworn testimony claiming she used to run away from home and slept out even when her mother was in the country and they beat her up.
In the case of Mercy Kajuju and 24 others vs Republic(2009)(Emukule,J) it was held :
“that, unsworn statements have no probative or value, Unsworn statements are not in evidential sense facts while which either to go to prove or disapprove a point alleged by one party and disputed by another. Facts in issue must be proved and unsworn statements are inappriate subject of evidence”.
Further, in the case of Amber May -vs- Republic (1981 )KLR 129 , the court of Appeal inter alia held:
“............. that unsworn statement is not strictly speaking evidence and the rules of evidence cannot be applied to unsworn statements. It has no probative value, but it should be considered in relation to the whole of evidence. Its potential is persuasive rather than evidential. For it to have value it must be supported by evidence on record in the case”.
The probative value of the evidence of the appeal is very weak. It is the court’s finding that the evidence by the complainant that the appellant penetrated her genitalia with his penis was not shaken by the Appellant. This was done by the Appellant who is of cause well known to her.
The age of the complainant is also not disputed. She was born on 18/8/2008 as shown in her birth certificate (P. Exhibit 1). She was therefore aged 12 years on the date of the commission of the alleged offence committed by the appellant. It is therefore, my finding that the prosecution proved its case against the appellant beyond reasonable doubt. The appellant was sentenced to serve 30 years through Section 20 of the Sexual Act provides that the offence prescribed is life sentence for Sexual offences are mandatory. The court, therefore, finding the sentence of 30 years to be unlawful and sentence to the appellant substituted with to serve life imprisonment.
Result of appeal within 14 days.
Dated, signed and delivered online via Microsoft teams this 13th day of July 2026
In the presence of:
Appellant in person
Sirima for DPP
C/A Kipchirchir