1. This Appeal arises from the Judgement of the Honourable Hon. Mary. Gituma, SRM delivered on 16.11.2023, in Nyeri CMCSO No. E054 of 2021. The appeal was on both conviction and sentence.
2. The Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the diverse months of August 2021 to 5.12.2021, at Kanyagia Village, Kieni West subcounty, within Nyeri county, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of TMS a child aged 12 years who to his knowledge was his daughter.
3. The Appellant was arraigned on 9.12.2021, where he denied the charges. A plea of not guilty was consequently recorded. The court gave directions regarding bond and a hearing date.
4. The trial court found the Appellant guilty and convicted and sentenced him to serve 35 years imprisonment. Aggrieved, the Appellant lodged this appeal challenging both conviction and sentence. The grounds of appeal were materially stated as follows:
a. The learned magistrate erred in law and fact in failing to appreciate that the alleged victim was incredible and doubtful.
b. The learned magistrate erred in law and fact in failing to appreciate that the critical elements of incest were not proved to the required standard.
c. The learned magistrate erred in law and fact in failing to consider that the prosecution case was riddled with material discrepancies capable of unsettling the verdict.
d. The learned magistrate erred in law and fact in failing to consider the credible Appellant’s defence
Evidence
5. PW1 was the minor. She was 13 years and in class six. In 2021, her mother went to the market. Her father came into her bedroom. He took her to his bedroom. He removed her clothes. He removed his penis and put it in her vagina. She could not remember the date. He could do these, many times whenever her mother was at the market. One day, Enock saw her leave her father’s room without clothes. He asked and she told him what had happened. He reported to the school deputy. The teacher then informed her mother.
6. On cross-examination, the complainant testified that their house comprised two rooms. She shared one room with her sister, BB, while her uncle, Enock, slept in the other room together with her brother, CC. According to her, her father would come to her room at about 4.00 a.m., take her to his room, and thereafter return her to her bed. She stated that she never reported the alleged incidents to anyone because her father had threatened to strangle her should she disclose them.
7. PW2 was Enock Monari. He testified that he lived with his sister, who was the mother of PW1. On 02.12.2021, his sister had travelled to Nyeri to deliver vegetables. At about 4.00 a.m., he heard someone moving around the house, something he stated had happened before. He then saw the Appellant walk to the room where the girls were sleeping and take PW1 to his room, which was situated in the sitting room. The sleeping area was separated by a curtain, making it impossible to see what was happening on the bed. After some time, he saw PW1 emerge from the Appellant's room wearing a T-shirt and carrying her clothes in her hands. He informed his sister of what he had witnessed later that evening.
8. PW2 further testified that PW1 informed him that she had come from the Appellant's room and that the Appellant had forced her to have sexual intercourse with him. On the following Monday, they went to school where he reported the matter to Mr. Gichuki, a teacher.
9. On cross-examination, PW2 stated that the Appellant had threatened to kill him and had previously beaten him before the incident of December 2021. He testified that when he saw the Appellant take PW1 to his room, he followed them but was unable to see what transpired because the sleeping area was concealed by a curtain. He further stated that he had witnessed similar incidents on four previous occasions.
10. PW3 was the mother of PW1 and the sister of PW2. She testified that PW2 informed her about the incident, following which she confronted the Appellant and subsequently reported the matter to the police.
11. On cross-examination, PW3 conceded that she did not witness the alleged incident and had not noticed anything unusual. She stated that she used to sleep with the Appellant in the sitting room and that the lights remained on throughout the night. She further testified that when she confronted the Appellant about the allegations, he threatened to kill her.
12. PW4 was AWM. She recalled that on 6.12.2021 she was not working. She stated that the headteacher of PW2’s school. It was her evidence that fellow teacher called her and informed her a student had been beaten by his brother-in-law for defiling his daughter. She came back next day and inquired from the student defiled, PW1. She refused to disclose at first. However, she told her that her father would take her to his bed and defile her. She reported to the assistant chief who advised that the matter be reported to police station.
13. PW5 was Dr. William Muriuki, a medical doctor attached to Nyeri County Hospital. He examined PW1 on 17.12.2021 and noted that she had an old broken hymen. He completed and produced the P3 form in evidence.
14. PW6 was Stephen Mugo Gichuki, who was a teacher testified that PW2 came to his office on 6.12.2021 and narrated the incident that had happened. The Appellant would go to the room PW1 slept, take PW1 to his own room and defile her. He called the deputy and informed her. On cross examination, he did not report to the mother of the child.
15. PW7 was Edith Wagariti Maina. She was a clinical officer at Mweiga Health Centre. She examined PW1 on 17.12.2021. The hymen was normal and old broken. There were no bruises on outer genitalia. There were red blood cells. There were no spermatozoa but there were red blood cells. He stated that the red blood cells could be due to trauma but were found on when they took a high vaginal swap.
16. PW8 was No. 93472 PC Susy Saidi of Mweiga Police Station. She received the report on 17.12.2021 and recorded statements. She filled the P3 form. She recommended to charge the Appellant with the offence.
17. The appellant was placed on his defence. The court complied with section 211 of the criminal procedure code. The appellant opted to give sworn evidence.
18. The Appellant testified as DW1. He denied defiling his daughter on 05.12.2021. He stated that he had marital problems with his wife, whom he accused of being unfaithful. He further testified that there was conflict between him and his wife regarding PW2, as he had not agreed to PW2 living in their home. According to him, he would leave for work at about 8.00 a.m., while his wife would leave the house at about 5.00 a.m and return at around 1.00 p.m. He maintained that he did not know why his daughter had testified against him.
Appellant’s Submissions
19. The appellant filed submissions dated 26.4.2026. They set out the duty of the court as laid out in the case of Pandya vs Republic [1957] EA 336 and of Okeno v Republic [1972] EA 32 at 36 . On the legal burden of proof in criminal matters reliance was placed on the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481. He submitted that the supplementary question of age were addressed by the court of appeal [Asike –Makhandia, Musinga & Gatembu, JJ.A] in the case of SS v Republic [2021] KECA 450 (KLR) as follows:
The charge of incest has three components namely,
a) Sex between the perpetrator and the victim,
b) The relationship between the two, and
c) The age of the victim for purposes of sentencing.
20. It was submitted that this in essence means that the respondent was under a duty to prove both penetration and the relationship between the appellant and TMS in order to prove the offence of incest.
21. He submitted that the broken hymen must be linked to penetration by the Appellant to sustain a conviction. They posited that scientific and medical evidence has proved that some girls are not even born with hymen, especially those where the hymen is broken by factors other than sexual intercourse. It was submitted that court of appeal in P .K.W v Republic [2012 ] eKLR held as follows:
Is hymen only ruptured by sexual intercourse? 3 Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769.
22. He submitted that in this case the clinician who examined the complainant child did not tell whether or not the rupture of her hymen was as a result of sexual intercourse or any other factor. She told the court that she concluded from the history. The child continued with her life normally even after the alleged incest. The mother told the court that she did not notice anything. She only took the issue seriously after the teacher called her following the complaint by her brother PW2.
23. He submitted that the evidence on record reveals several inconsistencies and circumstances that raise reasonable doubt regarding the prosecution's case. He pointed out several of them. First the complainant testified that she did not disclose the alleged incident to anyone. The report originated from her uncle, Enock (PW2), who was the accused's brother-in-law and admittedly had a strained relationship with the accused.
24. It was submitted that PW2 stated in evidence that the lights were on during the alleged incident but conceded that he neither saw what transpired nor heard any screams from the complainant. Further that there were contradictions regarding the complainant's appearance when she allegedly left the accused's room. The complainant stated that PW2 saw her leave the room without clothes, whereas PW2 testified that he saw her wearing a T-shirt. The discrepancy raises questions as to how the complainant knew what PW2 had allegedly seen and why their accounts differed.
25. The complainant's mother testified that she did not notice anything unusual and only took the allegations seriously after being contacted by the complainant's teacher following the report made by PW2. She further stated that, even after PW2 informed her of the allegations, she did not know whether they were true. PW2 reported the matter to the teacher after he had allegedly been assaulted by the accused, thereby raising the possibility of ulterior motives. Both PW2 and the complainant's mother, who were key prosecution witnesses, admitted that they did not witness the accused commit the alleged offence.
26. The complainant, a Class Six pupil, alleged that she had been carried from her bed by the accused, yet none of the other children in the house heard or noticed anything. Further the complainant's mother did not witness the incident and only learned of the allegations from her brother (PW2) and the complainant's teacher. It was submitted that the complainant only spoke about the alleged incident after being informed that the matter would be reported to the police.
27. It was submitted that PW5, the medical doctor, testified that he examined the complainant. However, during cross-examination, he admitted that he had not personally examined her and appeared uncertain in his testimony, as reflected on page 33 of the record.
28. The complainant and her mother both testified that they had never visited any hospital other than Mweiga Health Centre and specifically denied ever attending Nyeri County Hospital (PGH). This evidence conflicted with the testimony of PW5, who is based at Nyeri County Hospital and claimed to have seen the complainant there. The investigating officer also gave contradictory evidence regarding the complainant's attendance at Nyeri County Hospital. She initially testified that she accompanied the complainant to PGH but later stated that she was not present during the examination and that she only took the PRC form for completion of the P3 form.
29. The trial court failed to record the demeanour of the complainant, an important consideration in assessing credibility. It was admitted during the trial that the accused had a strained relationship with both the complainant's mother and PW2. The trial court did not adequately consider the possible effect of this animosity on the evidence tendered against the accused. Collectively, these inconsistencies and contradictions create significant doubt as to the reliability of the prosecution's case and whether the allegations against the accused were proved beyond reasonable doubt.
30. On contradictions reliance was placed on the case of Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6, where the court stated:
With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.
31. He submitted that the Appellant’s defence was not considered. The court treated it as an afterthought. The court on page 9 of the judgement erred when she stated that the issue of strained relationship between the Appellant and PW2 and PW3 was only brought up during the defence stage. This was an issue that had been addressed during the trial and the witnesses had admitted that the relationship was strained.
32. The Respondent filed submissions dated 6.04.2026. They submitted that the appellant raised three issues that is:
a) Whether the prosecution case was proved beyond reasonable doubt.
b) Whether the magistrate properly considered the appellant’s defence
c) Whether the victims’ testimony was credible.
33. The Respondent submitted that the age of the complainant was proved by the production of her birth certificate, which indicated that she was born on 10.01.2010. Consequently, as at 05.12.2021, the date of the alleged offence, she was still a minor.
34. On penetration, the respondent relied on the complainant’s testimony. Reliance was placed on the case of George Kioji v Republic Nyeri Criminal Appeal No. 270 of 2010 (unreported), where the court stated:
Where available medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to Section 124 of the Evidence Act, cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records reasons for such belief.
35. They also relied on the clinical officer’s testimony that she noted that the external genitalia was normal with old broken hymen. She opined that the complaint was defiled. They also attacked the submissions that the charge was fabricated as they were going to a rough patch was not proper. Further that the appellant cross examined two witnesses. The defence was an afterthought.
Analysis
36. The main issue in this case is whether the prosecution proved is case to the required standards. The second issue is in regard to sentence.
37. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
38. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
39. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
40. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
41. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
42. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
43. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carry a lifelong stigma and can only be justified based on indisputable evidence on the required standard. it does not call for magic, surmises, hyperbole and subterfuge. it calls for prove beyond reasonable doubt.
44. The accused enters these proceedings clothed with the presumption of innocence. That presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as doth:
39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression beyond a reasonable doubt mean? The term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
40. This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory.
45. The standard of proof required in such cases was addressed by Brennan, J. in the United States Supreme Court decision of in re Winship 397 U.S. 358 (1970), at pages 361–364, where he stated that:
The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
46. The appellant was charged with the offence of incest. The same is provided for under Section 20(1) of the Sexual Offences Act as follows:
(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
47. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence of course it is possible, but not in the least probable, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth :
What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’
48. PW1, the minor complainant, narrated events where she appeared to implicate the Appellant. She testified that she could not recall any specific date on which the incidents occurred. According to her, on several occasions, the Appellant would take her to his room at about 4.00 a.m., usually after her mother had left for the market. She stated that the incidents occurred in December 2021. She further testified that PW2 saw her emerging from the Appellant's room without clothes, inquired as to what had happened, and upon her explanation, reported the matter to a teacher, who testified as PW6.
49. The court will endeavour to deal with the issues as raised by the parties. Age is not a prerequisite. it is necessary only for purposes of conviction. the punishment part indicates as follows:
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.
50. Therefore, the elements to be provided are:
a. Genital p
[...truncated]
2. The Appellant was charged with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the diverse months of August 2021 to 5.12.2021, at Kanyagia Village, Kieni West subcounty, within Nyeri county, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of TMS a child aged 12 years who to his knowledge was his daughter.
3. The Appellant was arraigned on 9.12.2021, where he denied the charges. A plea of not guilty was consequently recorded. The court gave directions regarding bond and a hearing date.
4. The trial court found the Appellant guilty and convicted and sentenced him to serve 35 years imprisonment. Aggrieved, the Appellant lodged this appeal challenging both conviction and sentence. The grounds of appeal were materially stated as follows:
a. The learned magistrate erred in law and fact in failing to appreciate that the alleged victim was incredible and doubtful.
b. The learned magistrate erred in law and fact in failing to appreciate that the critical elements of incest were not proved to the required standard.
c. The learned magistrate erred in law and fact in failing to consider that the prosecution case was riddled with material discrepancies capable of unsettling the verdict.
d. The learned magistrate erred in law and fact in failing to consider the credible Appellant’s defence
Evidence
5. PW1 was the minor. She was 13 years and in class six. In 2021, her mother went to the market. Her father came into her bedroom. He took her to his bedroom. He removed her clothes. He removed his penis and put it in her vagina. She could not remember the date. He could do these, many times whenever her mother was at the market. One day, Enock saw her leave her father’s room without clothes. He asked and she told him what had happened. He reported to the school deputy. The teacher then informed her mother.
6. On cross-examination, the complainant testified that their house comprised two rooms. She shared one room with her sister, BB, while her uncle, Enock, slept in the other room together with her brother, CC. According to her, her father would come to her room at about 4.00 a.m., take her to his room, and thereafter return her to her bed. She stated that she never reported the alleged incidents to anyone because her father had threatened to strangle her should she disclose them.
7. PW2 was Enock Monari. He testified that he lived with his sister, who was the mother of PW1. On 02.12.2021, his sister had travelled to Nyeri to deliver vegetables. At about 4.00 a.m., he heard someone moving around the house, something he stated had happened before. He then saw the Appellant walk to the room where the girls were sleeping and take PW1 to his room, which was situated in the sitting room. The sleeping area was separated by a curtain, making it impossible to see what was happening on the bed. After some time, he saw PW1 emerge from the Appellant's room wearing a T-shirt and carrying her clothes in her hands. He informed his sister of what he had witnessed later that evening.
8. PW2 further testified that PW1 informed him that she had come from the Appellant's room and that the Appellant had forced her to have sexual intercourse with him. On the following Monday, they went to school where he reported the matter to Mr. Gichuki, a teacher.
9. On cross-examination, PW2 stated that the Appellant had threatened to kill him and had previously beaten him before the incident of December 2021. He testified that when he saw the Appellant take PW1 to his room, he followed them but was unable to see what transpired because the sleeping area was concealed by a curtain. He further stated that he had witnessed similar incidents on four previous occasions.
10. PW3 was the mother of PW1 and the sister of PW2. She testified that PW2 informed her about the incident, following which she confronted the Appellant and subsequently reported the matter to the police.
11. On cross-examination, PW3 conceded that she did not witness the alleged incident and had not noticed anything unusual. She stated that she used to sleep with the Appellant in the sitting room and that the lights remained on throughout the night. She further testified that when she confronted the Appellant about the allegations, he threatened to kill her.
12. PW4 was AWM. She recalled that on 6.12.2021 she was not working. She stated that the headteacher of PW2’s school. It was her evidence that fellow teacher called her and informed her a student had been beaten by his brother-in-law for defiling his daughter. She came back next day and inquired from the student defiled, PW1. She refused to disclose at first. However, she told her that her father would take her to his bed and defile her. She reported to the assistant chief who advised that the matter be reported to police station.
13. PW5 was Dr. William Muriuki, a medical doctor attached to Nyeri County Hospital. He examined PW1 on 17.12.2021 and noted that she had an old broken hymen. He completed and produced the P3 form in evidence.
14. PW6 was Stephen Mugo Gichuki, who was a teacher testified that PW2 came to his office on 6.12.2021 and narrated the incident that had happened. The Appellant would go to the room PW1 slept, take PW1 to his own room and defile her. He called the deputy and informed her. On cross examination, he did not report to the mother of the child.
15. PW7 was Edith Wagariti Maina. She was a clinical officer at Mweiga Health Centre. She examined PW1 on 17.12.2021. The hymen was normal and old broken. There were no bruises on outer genitalia. There were red blood cells. There were no spermatozoa but there were red blood cells. He stated that the red blood cells could be due to trauma but were found on when they took a high vaginal swap.
16. PW8 was No. 93472 PC Susy Saidi of Mweiga Police Station. She received the report on 17.12.2021 and recorded statements. She filled the P3 form. She recommended to charge the Appellant with the offence.
17. The appellant was placed on his defence. The court complied with section 211 of the criminal procedure code. The appellant opted to give sworn evidence.
18. The Appellant testified as DW1. He denied defiling his daughter on 05.12.2021. He stated that he had marital problems with his wife, whom he accused of being unfaithful. He further testified that there was conflict between him and his wife regarding PW2, as he had not agreed to PW2 living in their home. According to him, he would leave for work at about 8.00 a.m., while his wife would leave the house at about 5.00 a.m and return at around 1.00 p.m. He maintained that he did not know why his daughter had testified against him.
Appellant’s Submissions
19. The appellant filed submissions dated 26.4.2026. They set out the duty of the court as laid out in the case of Pandya vs Republic [1957] EA 336 and of Okeno v Republic [1972] EA 32 at 36 . On the legal burden of proof in criminal matters reliance was placed on the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462 pp 481. He submitted that the supplementary question of age were addressed by the court of appeal [Asike –Makhandia, Musinga & Gatembu, JJ.A] in the case of SS v Republic [2021] KECA 450 (KLR) as follows:
The charge of incest has three components namely,
a) Sex between the perpetrator and the victim,
b) The relationship between the two, and
c) The age of the victim for purposes of sentencing.
20. It was submitted that this in essence means that the respondent was under a duty to prove both penetration and the relationship between the appellant and TMS in order to prove the offence of incest.
21. He submitted that the broken hymen must be linked to penetration by the Appellant to sustain a conviction. They posited that scientific and medical evidence has proved that some girls are not even born with hymen, especially those where the hymen is broken by factors other than sexual intercourse. It was submitted that court of appeal in P .K.W v Republic [2012 ] eKLR held as follows:
Is hymen only ruptured by sexual intercourse? 3 Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769.
22. He submitted that in this case the clinician who examined the complainant child did not tell whether or not the rupture of her hymen was as a result of sexual intercourse or any other factor. She told the court that she concluded from the history. The child continued with her life normally even after the alleged incest. The mother told the court that she did not notice anything. She only took the issue seriously after the teacher called her following the complaint by her brother PW2.
23. He submitted that the evidence on record reveals several inconsistencies and circumstances that raise reasonable doubt regarding the prosecution's case. He pointed out several of them. First the complainant testified that she did not disclose the alleged incident to anyone. The report originated from her uncle, Enock (PW2), who was the accused's brother-in-law and admittedly had a strained relationship with the accused.
24. It was submitted that PW2 stated in evidence that the lights were on during the alleged incident but conceded that he neither saw what transpired nor heard any screams from the complainant. Further that there were contradictions regarding the complainant's appearance when she allegedly left the accused's room. The complainant stated that PW2 saw her leave the room without clothes, whereas PW2 testified that he saw her wearing a T-shirt. The discrepancy raises questions as to how the complainant knew what PW2 had allegedly seen and why their accounts differed.
25. The complainant's mother testified that she did not notice anything unusual and only took the allegations seriously after being contacted by the complainant's teacher following the report made by PW2. She further stated that, even after PW2 informed her of the allegations, she did not know whether they were true. PW2 reported the matter to the teacher after he had allegedly been assaulted by the accused, thereby raising the possibility of ulterior motives. Both PW2 and the complainant's mother, who were key prosecution witnesses, admitted that they did not witness the accused commit the alleged offence.
26. The complainant, a Class Six pupil, alleged that she had been carried from her bed by the accused, yet none of the other children in the house heard or noticed anything. Further the complainant's mother did not witness the incident and only learned of the allegations from her brother (PW2) and the complainant's teacher. It was submitted that the complainant only spoke about the alleged incident after being informed that the matter would be reported to the police.
27. It was submitted that PW5, the medical doctor, testified that he examined the complainant. However, during cross-examination, he admitted that he had not personally examined her and appeared uncertain in his testimony, as reflected on page 33 of the record.
28. The complainant and her mother both testified that they had never visited any hospital other than Mweiga Health Centre and specifically denied ever attending Nyeri County Hospital (PGH). This evidence conflicted with the testimony of PW5, who is based at Nyeri County Hospital and claimed to have seen the complainant there. The investigating officer also gave contradictory evidence regarding the complainant's attendance at Nyeri County Hospital. She initially testified that she accompanied the complainant to PGH but later stated that she was not present during the examination and that she only took the PRC form for completion of the P3 form.
29. The trial court failed to record the demeanour of the complainant, an important consideration in assessing credibility. It was admitted during the trial that the accused had a strained relationship with both the complainant's mother and PW2. The trial court did not adequately consider the possible effect of this animosity on the evidence tendered against the accused. Collectively, these inconsistencies and contradictions create significant doubt as to the reliability of the prosecution's case and whether the allegations against the accused were proved beyond reasonable doubt.
30. On contradictions reliance was placed on the case of Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6, where the court stated:
With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.
31. He submitted that the Appellant’s defence was not considered. The court treated it as an afterthought. The court on page 9 of the judgement erred when she stated that the issue of strained relationship between the Appellant and PW2 and PW3 was only brought up during the defence stage. This was an issue that had been addressed during the trial and the witnesses had admitted that the relationship was strained.
32. The Respondent filed submissions dated 6.04.2026. They submitted that the appellant raised three issues that is:
a) Whether the prosecution case was proved beyond reasonable doubt.
b) Whether the magistrate properly considered the appellant’s defence
c) Whether the victims’ testimony was credible.
33. The Respondent submitted that the age of the complainant was proved by the production of her birth certificate, which indicated that she was born on 10.01.2010. Consequently, as at 05.12.2021, the date of the alleged offence, she was still a minor.
34. On penetration, the respondent relied on the complainant’s testimony. Reliance was placed on the case of George Kioji v Republic Nyeri Criminal Appeal No. 270 of 2010 (unreported), where the court stated:
Where available medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso to Section 124 of the Evidence Act, cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records reasons for such belief.
35. They also relied on the clinical officer’s testimony that she noted that the external genitalia was normal with old broken hymen. She opined that the complaint was defiled. They also attacked the submissions that the charge was fabricated as they were going to a rough patch was not proper. Further that the appellant cross examined two witnesses. The defence was an afterthought.
Analysis
36. The main issue in this case is whether the prosecution proved is case to the required standards. The second issue is in regard to sentence.
37. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
38. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
39. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
40. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
41. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
42. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
43. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carry a lifelong stigma and can only be justified based on indisputable evidence on the required standard. it does not call for magic, surmises, hyperbole and subterfuge. it calls for prove beyond reasonable doubt.
44. The accused enters these proceedings clothed with the presumption of innocence. That presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of R vs. Lifchus {1997}3 SCR 320 the Supreme court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as doth:
39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression beyond a reasonable doubt mean? The term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
40. This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory.
45. The standard of proof required in such cases was addressed by Brennan, J. in the United States Supreme Court decision of in re Winship 397 U.S. 358 (1970), at pages 361–364, where he stated that:
The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
46. The appellant was charged with the offence of incest. The same is provided for under Section 20(1) of the Sexual Offences Act as follows:
(1) Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that, if it is alleged in the information or charge and proved that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.
47. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence of course it is possible, but not in the least probable, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth :
What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’
48. PW1, the minor complainant, narrated events where she appeared to implicate the Appellant. She testified that she could not recall any specific date on which the incidents occurred. According to her, on several occasions, the Appellant would take her to his room at about 4.00 a.m., usually after her mother had left for the market. She stated that the incidents occurred in December 2021. She further testified that PW2 saw her emerging from the Appellant's room without clothes, inquired as to what had happened, and upon her explanation, reported the matter to a teacher, who testified as PW6.
49. The court will endeavour to deal with the issues as raised by the parties. Age is not a prerequisite. it is necessary only for purposes of conviction. the punishment part indicates as follows:
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.
50. Therefore, the elements to be provided are:
a. Genital p
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