(Being an appeal against the conviction and sentence by Hon. Onalo J K Olga (SRM) in Malindi Chief Magistrate’s Court (SO) Case No. E108 of 2023)
1. The appellant herein, Shadrack Musanzu Kazungu was convicted and sentenced to 25 years on 5 June 2024 by the Chief Magistrate’s Court, Malindi for the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on diverse dates between March 2023 and 12 August 2023 at Kasimani Village, Gongoni location Magarini Sub County within Kilifi County, intentionally and unlawfully penetrated the vagina of S.M aged 15 years with his penis who was to his knowledge his daughter.
2. He was also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on diverse dates between March 2023 and 12 August 2023 at Kasimani Village, Gongoni location Magarini Sub County within Kilifi County, intentionally and unlawfully touched the vagina of S.M aged 15 years.
3. Aggrieved, the appellant appealed against the conviction and sentence where he raised the following grounds;
i. THAT the trial court erred in law and fact by convicting the appellant despite the prosecution not proving its case beyond reasonable doubt.
ii. THAT the trial court erred in law and fact by failing to consider contradictions and inconsistencies in the evidence adduced by the prosecution.
iii. THAT the trial court erred in law and fact by shifting the burden of proof to the appellant and failing to note that the investigations were shoddy.
iv. THAT the trial court erred in law and fact by failing to adequately consider his defence.
4. The background of the case is that, PW1 a 15 year old girl, testified that she was a step daughter of the appellant whom they lived together with her mother and her younger siblings. That her mother would occasionally go to farm at Kaembeni where she would stay for about two weeks before she returned to the house. During this time, she would leave the complainant and her other siblings with their their step father, the appellant.
5. It was her evidence that sometimes in 2022, the appellant began having sexual intercourse with her in his room when her mother was away. That the appellant had made sex conditional to paying her school fees, warning her that he would stop if she disclosed to anyone. This went on until sometimes in August 2023, when she refused to have sex with the appellant while her mother was away attending a funeral, and he assaulted her leading to a commotion. This attracted the attention of her aunt, who made inquires but she did not disclose the actual reasons for the altercation. Later on, she informed her mother upon her return who in turn reported the matter to the police where she was referred to Gongoni hospital for examination and treatment.
6. PW2, a police officer stationed at Gongoni police station testified that on 12 August 2023, the complainant accompanied by her mother, identified as Sophia and a village elder identified as Mr Frankline, reported that on diverse dates between March to August 2023, the appellant who was the complainant’s father engaged in sexual intercourse with her. On 15 August 2023, the complainant was issued with a P3 form referred to the hospital for age assessment, examination and treatment. On 24 August 2023, the appellant was arrested and subsequently charged with the offence.
7. PW3 Dr. Ibrahim Abdullahi based at Malindi Sub County hospital testified that the complainant was attended to at Gongoni health centre after she was reported to have been defiled by a person known to her. Medical examinations revealed that her hymen was broken leading to the conclusion that there was vaginal penetration. He produced the P3 form, treatment notes, and lab results as evidence. He further testified that an age assessment conducted on the complainant revealed that she was 15 years old. He produced the age assessment report as evidence.
8. The trial court was informed that the complainant’s mother and aunties had refused to record statements and had abandoned the complainant who was taken to a rescue home.
9. At the close of the prosecution’s case, the trial court held that a prima facie case had been established and placed the appellant on his defence. The appellant elected to give unsworn testimony where he admitted being the step father to the complainant but denied committing the offence. He stated that the complainant was occasionally found in bad company and he would correct and discipline her. He admitted canning the complainant in August 2023 stating that he was disciplining her for refusing to take her sister as instructed and talking to back at him badly. That his actions were consistent of a parent disciplining his child and disputed that its because she had declined to engage in sex with him.
10. The court directed that the appeal w ould be heard through written submissions where the appellant filed his written submissions which he relied upon during hearing. The Respondent opposed the appeal but informed the court that it would not be filing any written submissions and would rely of the record.
11. . The appellant submitted that in order to prove the offence of incest, the prosecution was required to prove all ingredients of the offence which are age of the victim, positive identification of the assailant, penetration, the existence of a relationship between the victim and accused, and that the act was committed by the appellant. As regards proof of age, the appellant submitted that no birth certificate was produced to prove the age of the complainant, PW1. He challenged the age assessment report which he alleged was cooked to suit the interest of the victim to his prejudice.
12. On the issue regarding the relationship between the victim and the appellant, it was submitted that crucial evidence being the testimony of PW1’s mother together with other documentary evidence was not availed to prove this element. He argued that in the absence of proof of the relationship between him and the victim, the charge must fail. He faulted the prosecution for not availing the victim’s mother who was a crucial witness arguing that it was their duty to prove all allegations beyond reasonable doubt by dint of Section 107 (1) of the Evidence Act. He cited the cases of Mohamed vs Republic (2008) eKLR and Jacob Adhiambo Omuondo vs Republic, urging the court to find that the prosecution failed to prove all ingredients of the offence. He prayed that the appeal be allowed, conviction quashed and sentence set aside.
Analysis and determination
13. This being the first appeal, the court has a duty to re-evaluate and analyze the evidence adduced before the trial court and arrive at its own independent conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of O iruri Mose Vs Republic (2013) eKLR. The Court of Appeal, in Kiilu & Another Vs Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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.”
14. Having considered the petition of appeal, record of proceedings and judgement by the trial court, submissions by the appellant together with cited authorities evidence, I find the issue for determination to be whether the offence of incest as charged was proved beyond reasonable doubt.
Whether the offence of incest was proved beyond reasonable doubt
15. The appellant was charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006 . The section 20 (1) of the said Act provides: -
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, 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.”
19. Thus, the specific ingredients of the offence of incest arising from section 20 (1) of the Sexual Offences Act are:
i. Proof that the victim is a daughter of the offender.
ii. Proof of penetration or indecent act.
iii. Identification of the perpetrator.
iv. Proof of the age of the victim. see DMK v Republic [2022] KEHC 1754 (KLR).
16. On the first ingredient, the appellant is charged with defiling the complainant S.M, his daughter. The Appellant submitted that this ingredient was not proved as no evidence was produced to show that he was the father of the victim. He faulted the prosecution for not availing PW1 ‘s mother as a witnesses or adduce any form of documentary or other evidence to prove existence of a relationship as per the charge sheet.
17. Section 20 (1) of the Sexual Offences Act prohibits a sexual relationship between a person and his daughter. Section 22 (1) of the Act provides that a father includes a half- father. Half -father has been interpreted to mean step-father. In SKW v Republic (2025) KECA 326 (KLR), the court of appeal affirmed that a step father means half father within the context of Section 22 (1) of the Act. The court observed:
“ We recognize that the Sexual Offences Act does not give a definition of a half-father or step-father yet we pose this question- what is the difference between a “step-father” from a “half- brother”. Our understanding of the provision in Section 22 of the Sexual Offences Act is that a father who is not a biological father of a victim shares a half relationship with the victim through his wife, who is also the biological mother of the victim. He stands and occupies a parental position, and thus falls within the prohibited degrees of consanguinity.
We have no hesitation in concluding that a half - father is any person who assumes parental responsibility of a child by virtue of marrying such child’s mother through lawful wedlock or cohabitation as husband and wife without necessarily being lawfully joined in marriage, in which case such person and mother of such child would be presumed to believing as husband and wife.This would also include an adoptive father.
Indeed we echo and adopt the views expressed in the case of M.K. v Republic [2014] eKLR, where Majanja, J, cited with approval the case of B.N.M. v Republic [2011] eKLR that:-
“my own understanding is that ‘half father’ is a term which means exactly the same as ‘stepfather’ – it means one who is not a biological father of the child. Therefore, by dint of this S 22(1) of the Act the appellant being a step-father of the complainant and one who stood in ‘loquo parenthis’ can legally be charged and indeed convicted of the crime of incest with her.”
18. PW1 testified that she the appellant is her step father. She testified that she, her other siblings, and mother, identified as Sophia lived in the same house as the appellant. She testified that the appellant would call her at night while her other siblings were sleeping and have intercourse with her. This mainly occurred when her mother travelled away. The appellant did not deny that he was PW1’s father or that they lived in the same house. He actual sense referred to PW1 as his daughter on many occasions during his testimony in defence, narrating the various encounters that he had with her, including the altercation that occurred in August 2023 when he caned her (PW1) for what he considered as indiscipline.
19. The appellant faulted the prosecution for not calling PW1’s mother as a witness. The record of proceedings before the trial court states that 28 September 2023, the prosecutor informed the court that PW1’s mother and the appellant's sisters had refused to record a statement and were supporting the appellant in the case. Further, that PW1 had been abandoned and was taken to a rescue home as a result thereof. This explains why it was not possible for the prosecution to call the said person’s as witnesses. This was clearly an attempt to defeat the cause of justice.
20. The court is cognizant that this is a sexual offence and that by dint of Section 124 of the Evidence Act, a conviction can lie on the strength of a victim’s evidence without the need for corroboration. In this case, however, the court finds that the victim’s evidence as regards the relationship with the appellant was duly corroborated by the appellant himself leading to a conclusion that she was a daughter of the appellant by virtue of him being her step father. The court finds this ingredient top have been proved beyond reasonable doubt.
21. On the second ingredient of penetration, Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
22. It is now well established that penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. This was the observation, which was correctly made by the trial court while relying on the decision in Bassita vs Uganda S.C Cr iminal Appeal No. 35 of 1995 . The above position has been restated in many other decisions. In Kassim Ali vs Republic [2006] eKLR, the Court of Appeal observed as follows:
“So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”.
23. PW1 narrated how the appellant, her father had sexual intercourse with her on various occasions since 2022. She described in details how it happened stating that during periods when her mother was away, the appellant would go to her room at night, take her to his bed even when she was sleepy, and have sexual intercourse with her by inserting his penis of her vagina. She testified that she was warned not to report to anyone lest he would not pay her school fees. It was her evidence that this continued from around March until August 2023 when he beat her for refusing to have sex with her, which led to the disclosure to her mother, and subsequent reporting of the incident to the police.
24. PW3 a medical doctor who examined her, found that her hymen was missing. He concluded that based on the medical examinations, there was proof of penetration. He produced the P3 form as exhibit 1, treatment notes as exhibit 2, and lab results as exhibit 3 as evidence thereof. This gave credence to PW1’s testimony who maintained that she had not engaged in sex with any other person other than the appellant.
25. PW2 the investigating officer testified that the incident was reported to Gongoni police station on 12 August 2023 by the victim, PW1 who was accompanied by her mother, Sophia and village elder by the name Frankline. This gives further credence to PW1’s evidence which provided an account of what transpired that led to the incident reported in the police station. The court has considered the defence by the appellant and finds that he did not challenge the facts as stated by PW1 during cross examination or in his testimony in defence. His defence confirmed particular facts and the incident in August 2023 that led to disclosure of the case. The court finds that taken as a whole and based on the evidence on record, penetration was proved beyond reasonable doubt.
26. On the third ingredient of identification, evidence shows that the complainant lived with the appellant who was his father and clearly well known to her. She identified him as the perpetrator testifying that he has been having sex with her since 2022. The incident occurred over a long period of time and there was not possibility of mistaken identity. In this case, identification was through recognition which is more reliable than identification of a stranger. See A njononi & Others vs Republic (1980) KLR 59 .The court finds that this element was proved beyond reasonable doubt.
27. On proof of age, the appellant submitted that no birth certificate was produced to prove the age of the complainant, PW1. He challenged the age assessment report which he alleged was cooked to suit the interest of the victim to his prejudice.
28. It is of utmost importance to prove the age of the victim in a case of incest since sentencing is dependent on the age . In Hadson Ali Mwachongo vs Republic (2016) eKLR , the Court of Appeal held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
29. The age of a victim may be proved in various ways. The Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR stated:
“ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof . We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
30. In this case PW3 produced an age assessment report dated 15 August 2023 as exhibit 3 where the medical officer examined PW1 and concluded that she was about 15 years old. The appellant neither challenged this evidence during trial nor questioned its authenticity. No evidence has been placed before the court to show that the document is not authenticity or its preparation was influenced by other ulterior motives as submitted by the appellant. The court finds the age assessment as credible and sufficient proof of the age of the victim.
31. The court finds all ingredients of the offence were proved beyond reasonable doubt and that the conviction was safe and properly grounded.
Final Disposition
32. In light of the above, the court finds appeal against conviction and sentence unmerited and is accordingly dismissed.
33. It is so ordered.
Dated, Signed and Delivered Virtually at Nairobi this 17 th September 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
1. The appellant herein, Shadrack Musanzu Kazungu was convicted and sentenced to 25 years on 5 June 2024 by the Chief Magistrate’s Court, Malindi for the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on diverse dates between March 2023 and 12 August 2023 at Kasimani Village, Gongoni location Magarini Sub County within Kilifi County, intentionally and unlawfully penetrated the vagina of S.M aged 15 years with his penis who was to his knowledge his daughter.
2. He was also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that on diverse dates between March 2023 and 12 August 2023 at Kasimani Village, Gongoni location Magarini Sub County within Kilifi County, intentionally and unlawfully touched the vagina of S.M aged 15 years.
3. Aggrieved, the appellant appealed against the conviction and sentence where he raised the following grounds;
i. THAT the trial court erred in law and fact by convicting the appellant despite the prosecution not proving its case beyond reasonable doubt.
ii. THAT the trial court erred in law and fact by failing to consider contradictions and inconsistencies in the evidence adduced by the prosecution.
iii. THAT the trial court erred in law and fact by shifting the burden of proof to the appellant and failing to note that the investigations were shoddy.
iv. THAT the trial court erred in law and fact by failing to adequately consider his defence.
4. The background of the case is that, PW1 a 15 year old girl, testified that she was a step daughter of the appellant whom they lived together with her mother and her younger siblings. That her mother would occasionally go to farm at Kaembeni where she would stay for about two weeks before she returned to the house. During this time, she would leave the complainant and her other siblings with their their step father, the appellant.
5. It was her evidence that sometimes in 2022, the appellant began having sexual intercourse with her in his room when her mother was away. That the appellant had made sex conditional to paying her school fees, warning her that he would stop if she disclosed to anyone. This went on until sometimes in August 2023, when she refused to have sex with the appellant while her mother was away attending a funeral, and he assaulted her leading to a commotion. This attracted the attention of her aunt, who made inquires but she did not disclose the actual reasons for the altercation. Later on, she informed her mother upon her return who in turn reported the matter to the police where she was referred to Gongoni hospital for examination and treatment.
6. PW2, a police officer stationed at Gongoni police station testified that on 12 August 2023, the complainant accompanied by her mother, identified as Sophia and a village elder identified as Mr Frankline, reported that on diverse dates between March to August 2023, the appellant who was the complainant’s father engaged in sexual intercourse with her. On 15 August 2023, the complainant was issued with a P3 form referred to the hospital for age assessment, examination and treatment. On 24 August 2023, the appellant was arrested and subsequently charged with the offence.
7. PW3 Dr. Ibrahim Abdullahi based at Malindi Sub County hospital testified that the complainant was attended to at Gongoni health centre after she was reported to have been defiled by a person known to her. Medical examinations revealed that her hymen was broken leading to the conclusion that there was vaginal penetration. He produced the P3 form, treatment notes, and lab results as evidence. He further testified that an age assessment conducted on the complainant revealed that she was 15 years old. He produced the age assessment report as evidence.
8. The trial court was informed that the complainant’s mother and aunties had refused to record statements and had abandoned the complainant who was taken to a rescue home.
9. At the close of the prosecution’s case, the trial court held that a prima facie case had been established and placed the appellant on his defence. The appellant elected to give unsworn testimony where he admitted being the step father to the complainant but denied committing the offence. He stated that the complainant was occasionally found in bad company and he would correct and discipline her. He admitted canning the complainant in August 2023 stating that he was disciplining her for refusing to take her sister as instructed and talking to back at him badly. That his actions were consistent of a parent disciplining his child and disputed that its because she had declined to engage in sex with him.
10. The court directed that the appeal w ould be heard through written submissions where the appellant filed his written submissions which he relied upon during hearing. The Respondent opposed the appeal but informed the court that it would not be filing any written submissions and would rely of the record.
11. . The appellant submitted that in order to prove the offence of incest, the prosecution was required to prove all ingredients of the offence which are age of the victim, positive identification of the assailant, penetration, the existence of a relationship between the victim and accused, and that the act was committed by the appellant. As regards proof of age, the appellant submitted that no birth certificate was produced to prove the age of the complainant, PW1. He challenged the age assessment report which he alleged was cooked to suit the interest of the victim to his prejudice.
12. On the issue regarding the relationship between the victim and the appellant, it was submitted that crucial evidence being the testimony of PW1’s mother together with other documentary evidence was not availed to prove this element. He argued that in the absence of proof of the relationship between him and the victim, the charge must fail. He faulted the prosecution for not availing the victim’s mother who was a crucial witness arguing that it was their duty to prove all allegations beyond reasonable doubt by dint of Section 107 (1) of the Evidence Act. He cited the cases of Mohamed vs Republic (2008) eKLR and Jacob Adhiambo Omuondo vs Republic, urging the court to find that the prosecution failed to prove all ingredients of the offence. He prayed that the appeal be allowed, conviction quashed and sentence set aside.
Analysis and determination
13. This being the first appeal, the court has a duty to re-evaluate and analyze the evidence adduced before the trial court and arrive at its own independent conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of O iruri Mose Vs Republic (2013) eKLR. The Court of Appeal, in Kiilu & Another Vs Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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.”
14. Having considered the petition of appeal, record of proceedings and judgement by the trial court, submissions by the appellant together with cited authorities evidence, I find the issue for determination to be whether the offence of incest as charged was proved beyond reasonable doubt.
Whether the offence of incest was proved beyond reasonable doubt
15. The appellant was charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act, No. 3 of 2006 . The section 20 (1) of the said Act provides: -
“Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, 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.”
19. Thus, the specific ingredients of the offence of incest arising from section 20 (1) of the Sexual Offences Act are:
i. Proof that the victim is a daughter of the offender.
ii. Proof of penetration or indecent act.
iii. Identification of the perpetrator.
iv. Proof of the age of the victim. see DMK v Republic [2022] KEHC 1754 (KLR).
16. On the first ingredient, the appellant is charged with defiling the complainant S.M, his daughter. The Appellant submitted that this ingredient was not proved as no evidence was produced to show that he was the father of the victim. He faulted the prosecution for not availing PW1 ‘s mother as a witnesses or adduce any form of documentary or other evidence to prove existence of a relationship as per the charge sheet.
17. Section 20 (1) of the Sexual Offences Act prohibits a sexual relationship between a person and his daughter. Section 22 (1) of the Act provides that a father includes a half- father. Half -father has been interpreted to mean step-father. In SKW v Republic (2025) KECA 326 (KLR), the court of appeal affirmed that a step father means half father within the context of Section 22 (1) of the Act. The court observed:
“ We recognize that the Sexual Offences Act does not give a definition of a half-father or step-father yet we pose this question- what is the difference between a “step-father” from a “half- brother”. Our understanding of the provision in Section 22 of the Sexual Offences Act is that a father who is not a biological father of a victim shares a half relationship with the victim through his wife, who is also the biological mother of the victim. He stands and occupies a parental position, and thus falls within the prohibited degrees of consanguinity.
We have no hesitation in concluding that a half - father is any person who assumes parental responsibility of a child by virtue of marrying such child’s mother through lawful wedlock or cohabitation as husband and wife without necessarily being lawfully joined in marriage, in which case such person and mother of such child would be presumed to believing as husband and wife.This would also include an adoptive father.
Indeed we echo and adopt the views expressed in the case of M.K. v Republic [2014] eKLR, where Majanja, J, cited with approval the case of B.N.M. v Republic [2011] eKLR that:-
“my own understanding is that ‘half father’ is a term which means exactly the same as ‘stepfather’ – it means one who is not a biological father of the child. Therefore, by dint of this S 22(1) of the Act the appellant being a step-father of the complainant and one who stood in ‘loquo parenthis’ can legally be charged and indeed convicted of the crime of incest with her.”
18. PW1 testified that she the appellant is her step father. She testified that she, her other siblings, and mother, identified as Sophia lived in the same house as the appellant. She testified that the appellant would call her at night while her other siblings were sleeping and have intercourse with her. This mainly occurred when her mother travelled away. The appellant did not deny that he was PW1’s father or that they lived in the same house. He actual sense referred to PW1 as his daughter on many occasions during his testimony in defence, narrating the various encounters that he had with her, including the altercation that occurred in August 2023 when he caned her (PW1) for what he considered as indiscipline.
19. The appellant faulted the prosecution for not calling PW1’s mother as a witness. The record of proceedings before the trial court states that 28 September 2023, the prosecutor informed the court that PW1’s mother and the appellant's sisters had refused to record a statement and were supporting the appellant in the case. Further, that PW1 had been abandoned and was taken to a rescue home as a result thereof. This explains why it was not possible for the prosecution to call the said person’s as witnesses. This was clearly an attempt to defeat the cause of justice.
20. The court is cognizant that this is a sexual offence and that by dint of Section 124 of the Evidence Act, a conviction can lie on the strength of a victim’s evidence without the need for corroboration. In this case, however, the court finds that the victim’s evidence as regards the relationship with the appellant was duly corroborated by the appellant himself leading to a conclusion that she was a daughter of the appellant by virtue of him being her step father. The court finds this ingredient top have been proved beyond reasonable doubt.
21. On the second ingredient of penetration, Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
22. It is now well established that penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. This was the observation, which was correctly made by the trial court while relying on the decision in Bassita vs Uganda S.C Cr iminal Appeal No. 35 of 1995 . The above position has been restated in many other decisions. In Kassim Ali vs Republic [2006] eKLR, the Court of Appeal observed as follows:
“So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”.
23. PW1 narrated how the appellant, her father had sexual intercourse with her on various occasions since 2022. She described in details how it happened stating that during periods when her mother was away, the appellant would go to her room at night, take her to his bed even when she was sleepy, and have sexual intercourse with her by inserting his penis of her vagina. She testified that she was warned not to report to anyone lest he would not pay her school fees. It was her evidence that this continued from around March until August 2023 when he beat her for refusing to have sex with her, which led to the disclosure to her mother, and subsequent reporting of the incident to the police.
24. PW3 a medical doctor who examined her, found that her hymen was missing. He concluded that based on the medical examinations, there was proof of penetration. He produced the P3 form as exhibit 1, treatment notes as exhibit 2, and lab results as exhibit 3 as evidence thereof. This gave credence to PW1’s testimony who maintained that she had not engaged in sex with any other person other than the appellant.
25. PW2 the investigating officer testified that the incident was reported to Gongoni police station on 12 August 2023 by the victim, PW1 who was accompanied by her mother, Sophia and village elder by the name Frankline. This gives further credence to PW1’s evidence which provided an account of what transpired that led to the incident reported in the police station. The court has considered the defence by the appellant and finds that he did not challenge the facts as stated by PW1 during cross examination or in his testimony in defence. His defence confirmed particular facts and the incident in August 2023 that led to disclosure of the case. The court finds that taken as a whole and based on the evidence on record, penetration was proved beyond reasonable doubt.
26. On the third ingredient of identification, evidence shows that the complainant lived with the appellant who was his father and clearly well known to her. She identified him as the perpetrator testifying that he has been having sex with her since 2022. The incident occurred over a long period of time and there was not possibility of mistaken identity. In this case, identification was through recognition which is more reliable than identification of a stranger. See A njononi & Others vs Republic (1980) KLR 59 .The court finds that this element was proved beyond reasonable doubt.
27. On proof of age, the appellant submitted that no birth certificate was produced to prove the age of the complainant, PW1. He challenged the age assessment report which he alleged was cooked to suit the interest of the victim to his prejudice.
28. It is of utmost importance to prove the age of the victim in a case of incest since sentencing is dependent on the age . In Hadson Ali Mwachongo vs Republic (2016) eKLR , the Court of Appeal held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
29. The age of a victim may be proved in various ways. The Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR stated:
“ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof . We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
30. In this case PW3 produced an age assessment report dated 15 August 2023 as exhibit 3 where the medical officer examined PW1 and concluded that she was about 15 years old. The appellant neither challenged this evidence during trial nor questioned its authenticity. No evidence has been placed before the court to show that the document is not authenticity or its preparation was influenced by other ulterior motives as submitted by the appellant. The court finds the age assessment as credible and sufficient proof of the age of the victim.
31. The court finds all ingredients of the offence were proved beyond reasonable doubt and that the conviction was safe and properly grounded.
Final Disposition
32. In light of the above, the court finds appeal against conviction and sentence unmerited and is accordingly dismissed.
33. It is so ordered.
Dated, Signed and Delivered Virtually at Nairobi this 17 th September 2026
JOSEPH KIPKOECH BIOMDO
JUDGE