REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E062 OF 2023
SIMON KINYUA MUREITHI …………………………..………APPELLANT
VERSUS
REPUBLIC………………………………….. …………….……RESPONDENT
(Being an appeal from the conviction and sentence delivered on 31/5/2023 by Hon. Cheruto C. Kipkorir (P.M). in Kerugoya Magistrates Court S.O. Case No. E015 of 2022)
J U D G M E N T
1. The appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on diverse dates between November 2021 and August 2022 at Kibingo village within Kirinyaga County, intentionally caused his penis to penetrate the vagina of P.M. a child who is his daughter aged 11 years.
2. He is also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same dates, place and time as in the principal charge the appellant intentionally and unlawfully caused his penis to come into contact with the vagina of J.N.M. a girl child aged 11 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 5 witnesses in support of its case. PW 1, P.M. the complainant and daughter of the appellant. PW 2, Mary Wakuthii, is the chief of the local area from which the appellant and the complainant resided, PW 3, Lucy Wangithi Wachira was the headteacher of the school where the complainant was attending in grade 6, PW 4, Hezron Macharia Maina, was a clinical officer from Kerugoya referral hospital and PW 5, PC Habiba Mulinzi was the investigating officer in the case.
4. The appellant DW 1, made an unsworn statement in defence and did not call a witness.
5. At the end of the trial, the appellant was found guilty of the principal charge of incest and he was convicted and sentenced to serve 40 years imprisonment.
6. PW 1, P.M. the complainant gave sworn evidence after a voire dire examination by the court and said she was a pupil in class 6 in a named school. She recounted one night on a date she could not remember in November 2021, his father, the appellant went home while drunk. He found her seated in a chair where she used to sleep. She was alone as her mother was not staying with them as she had a disagreement with the appellant. Her siblings were also not staying with them. She served him with food “githeri” that she had made. and he ate. The appellant was abusing a neighbor called Pauline calling her a witch and told the complainant not to talk to her.
7. The complainant said that the appellant pulled her from the seat to his bed. He removed her clothes, touched her breasts and between her private parts and then engaged in sexual intercourse with her. He told her not to tell anyone what he had done to her. The complainant said further that that on another occasion the appellant engaged in sexual intercourse with her. He even told her not to go to school. She also said the appellant would beat her. On one occasion when she forgot to purchase a candle, he chased her away and told her to go to her mother.
8. The complainant eventually reported the incidents to her class teacher and the head teacher, PW 2 who reported to the assistant chief. When the complainant went to the assistant chief, she recounted her ordeal at the hands of her father. She was taken to the police station where a report was made and then escorted for medical attention.
9. She said she could not remember the exact dates when the incidents were committed.
10. The complainant referred to her birth notification (Exh. 1) and said she was borne on 10/10/2010 making her just 11 years when the incidents allegedly happened.
11. In cross-examination she said she was afraid of reporting the incidents. That the appellant used to beat her mother and one day he beat her mother with a panga and almost killed her. She said that at one point the appellant left her and he went to stay at Njega’s while the complainant stayed with the family of Baba Ella and Mama Ella. Baba Ella then went to her mother and told her that they would no longer take care of the complainant. She said she did not know who told the appellant to go for her. She denied that her mother went to Mama Ella and caused a commotion there.
12. PW 2 said that she knew the appellant and the complainant’s mother whom she described as highly irresponsible and “mlevi wa kupindukia” a drunkard who does not do any work. The complainant reported the incident at her office on 27/9/2022. She told her that her father was engaging in sexual intercourse with her. PW 2 took her to the police station where the matter was taken up.
13. PW 3, said that the incident was first reported by the complainant to the class teacher who then alerted PW 3. PW 3 said she spoke to the complainant who at first was hesitant to speak out but later said her father usually had sex with her. She reported the matter to the assistant chief who took it up.
14. PW 4, Hezron Macharia Maina was a clinical officer from Kerugoya referral hospital. He testified that the complainant was examined for sexual assault at the hospital on 21/9/2022. She gave evidence of having been assaulted by her father between November 2021 and August 2022. PW 4 was shown a birth notification from which he ascertained the complainant’s age as 11 years and 11 months at the time. She was generally in fair general condition and her hymen was broken. There were no other injuries on her private parts. She had a white discharge from her vagina. High vaginal swab done showed high presence of epithelial cells and pus cells but no spermatozoa seen. There were no other significant findings in relation to the complaint of sexual assault.
15. PW 5 conducted investigations based on the report that she had received from the complainant and the school headteacher, chief and assistant chief. She produced as exhibit the complainant’s birth notification (Exh. 1). She had the accused person arrested and charged for the offence.
16. In his unsworn statement in defence the appellant said that he left the complainant to stay with her grandfather at Kanyeki-Ini west on 24/9/2021. However, he took care of her needs. When he went back there on 5/1/2022, he was told to take his child with him. Her mother was an alcoholic. He took the complainant and lived with her at Kibingo. When he was at work she stayed back with her younger siblings. He was surprised when he was arrested and told that he had sex with his child.
17. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of incest of against the appellant beyond a reasonable doubt and thus convicted and sentenced him to 40 years’ imprisonment.
18. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that the trial court erred in law and in fact:
a. by failing to consider that there was no evidence of eye witnesses.
b. by failing to consider that there was no penetration against the complainant.
c. by failing to see that the medical evidence was inconclusive and the age of the complainant was not proved.
d. by failing to consider that there was a grudge between the appellant and the mother of the complainant.
e. when she rejected the appellant’s sworn evidence without any cogent reason.
19. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
20. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and the grounds of opposition by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
21. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
22. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
23. Sections 20(1) of the Sexual Offences Act under which the appellant was convicted for the offence of incest provides as follows:
S. 20(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.
24. In the case of LOA v Republic [2020] KECA 927 (KLR) the Court of Appeal considering the ingredients of the offence of incest held that:
“We have no doubt at all that for an offence of incest to be proved, pursuant to section 20 of the Sexual Offences Act, the prosecution needs to prove the sex of the victim, the relationship of the victim to the perpetrator, penetration and the age of the victim. The latter requirement is for purposes of sentencing.”
25. There was no dispute that the complainant was female and that the appellant was her father. The complainant’s evidence was that she is female, notification of birth showed her date of birth and also her sex as female, the clinical officer who examined her genitalia confirmed that she was female and all the other prosecution witnesses being her school head teacher and the chief gave evidence that she was female. They referred to her as a girl. The appellant referred to her as his child.
26. The appellant’s first ground of appeal is that there was no eye witness to the alleged commission of the offence. I believe he meant there was no other witness besides the complainant.
27. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with her and the other ingredients of the offence of incest as stated above. She was thus the only eye witness on the issue of penetration.
28. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
29. As stated above, the complainant gave sworn evidence.
30. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
31. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
32. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
33. The appellant’s plea that there was no eye witness to the offence is therefore addressed by the proviso to section 124 of the Evidence Act. There need not be any other eye witness besides the complainant for as long as the court finds that the victim was telling the truth and also that it warned itself of the dangers of relying on the uncorroborated evidence of the victim.
34. In this case, the learned trial magistrate recorded after the voire dire examination of the complainant that she was satisfied the complainant was possessed of sufficient intelligence and understood the concept of honesty. That satisfies the requirement for the trial court to record in the proceedings that the complainant was telling the truth.
35. The trial court found that the complainant’s evidence that she was a daughter of the appellant was corroborated by the area chief, PW 2. Indeed, PW 2 said that she knew the family well and so she knew the complainant’s parents. She knew the appellant as her father and her mother whom she described as an irresponsible person due to her excessive drinking habits. The appellant conceded in his testimony that the complainant was his daughter and that he was staying with her at the time of the offence and that he would even leave his other children to her care when he went to work. I am satisfied that the prosecution proved that the complainant is appellant’s daughter.
36. On the ground that penetration was not proved the appellant submits that the medical evidence did not support that allegation as there were no positive findings of sexual intercourse and the scar of the broken hymen was old. He also submits that he was not taken for medical examination as the law requires.
37. The submissions by the appellant on lack of positive medical findings of penetration are not true because there was evidence that the complainant’s hymen was broken though not recently. What he submits as what he expected to be found during the medical examination such as freshly broken hymen, injuries, spermatozoa or infection is good evidence when available. In this case, the prosecution did not allege that the act causing the penetration of the complainant’s genitalia was recent. Evidence by the complainant was that the last act of sexual intercourse had been in August yet she made her first report to PW 3 around 21/9/2022. In that case, there was no expectation of getting the evidence the appellant is asking for. There was also no evidence of DNA analysis of anything as submitted by the appellant. In this case, there is no dispute that such evidence was not available. So, the court would only consider whether or not the victim was a truthful witness and the appropriate caution on relying on such uncorroborated evidence. This court is appropriately cautioned.
38. The appellant submits that the case was a frame up by the assistant chief who couched the complainant on these baseless allegations. That the assistant chief would go to his place of residence and abuse him. However, that line of defence was not taken up by the appellant in his defence either in cross-examination or in his testimony. Secondly, the report was not even initiated by the chief or assistant chief. They only received the report from the child’s head teacher whom the appellant has not mentioned that he had any differences with. I find his assertion against the assistant chief to be an afterthought that is without basis and I reject it.
39. On the question of proof of age, the Court of Appeal had this to say in the case of Mwalango Chichoro Mwanjembe v Republic [2016] eKLR:
“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 documentary 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 presented in proof of the victim’s age, it has to be credible and reliable.”
40. From the above decision, what the court needs to be satisfied on proof of age is that the evidence is credible and reliable.
41. The age of the complainant was confirmed by the birth notification produced in court which bears her full name and this was not challenged by the appellant. The same showed that the complainant was born on 10/10/2010 meaning that as at November 2021 when she said the incidents started, she was 11 years and 1 month.
42. The appellant also submitted that crucial witnesses such as the complainant’s mother and grandfather were not called as witnesses. However, from the complainant’s evidence, she was staying alone with the appellant. This was confirmed by PW 2 and even the appellant himself. They were not present when the incidents happened and therefore their evidence would not add any value to the case. Therefore, the failure to call them was not fatal to the prosecution’s case.
43. The contention that the learned trial magistrate did not give due regard to the appellant’s sworn evidence is not true. In the first place, he made an unsworn statement and not sworn evidence. Secondly, the learned trial magistrate set out the defence and evaluated it fully and was satisfied that it lacked credibility to challenge the evidence tendered by the prosecution.
44. The appellant also submitted that the SOA is being used to settle imaginary grudges, personal vendetta and for extortion purposes. Indeed, in certain cases, courts have found that to be the position. But it is not a general position to be alleged in every case. It is an issue that comes out from the evidence tendered at trial. The court will then examine the evidence and make its decision thereon. In this case the appellant did not mention a single incident where the same was applicable in his case. His ground of appeal on that issue was that there was a grudge between the appellant and the mother of the complainant. He did not elaborate it in his submissions. He also never raised it in his defence either through cross-examination of the witnesses or in his testimony. I find that allegation to be an afterthought that is baseless and I dismiss it.
45. Consequently, I am satisfied that the appellant was properly convicted and the conviction is affirmed.
46. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
47. The offence of incest carries a sentence of life imprisonment where the victim is under 18 years old. The learned trial magistrate imposed a sentence of 40 years’ imprisonment. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
48. I note the sentence imposed of 40 years’ imprisonment was during the period the Court of Appeal had determined that indeterminate life imprisonment was unconstitutional and therefore life imprisonment translated to 30- or 40-years imprisonment. In the cases of Ayako v Republic [2023] KECA 1563 (KLR), and MB v Republic [2024] KECA 324 (KLR) the Court of Appeal substituted indeterminate life imprisonment terms with a definite term of 30 years’ imprisonment while in Manyeso v Republic [2023] KECA 827 (KLR) the term was 40 years imprisonment. However, in a most recent decision from the Apex Court issued on 11/4/2025 in the case of Republic v Ayako [2025] KESC 20 (KLR), the Supreme Court set aside the decision of the Court of Appeal above determining the parameters of life imprisonment to the extent that it converted the Respondent’s life imprisonment sentence to thirty (30) years. However, considering the provisions of Article 50(2)(p) of the Constitution that the right to a fair trial includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing I will leave the sentence to run as passed by the trial court and the same to run from the date of arrest of the appellant on 22/9/2022, which takes into account the period he had been in custody pending his trial as provided for under section 333 of the Criminal Procedure Code.
49. In the result, the appeal is found to be without merit and is dismissed. The decision of the trial court convicting the appellant for incest is affirmed save for compliance with section 333 of the CPC above.
50. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 27th of May 2025 in the presence of:
The appellant in person from Nyeri prison.
Muriithi for the respondent
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CRIMINAL APPEAL NO. E062 OF 2023
SIMON KINYUA MUREITHI …………………………..………APPELLANT
VERSUS
REPUBLIC………………………………….. …………….……RESPONDENT
(Being an appeal from the conviction and sentence delivered on 31/5/2023 by Hon. Cheruto C. Kipkorir (P.M). in Kerugoya Magistrates Court S.O. Case No. E015 of 2022)
J U D G M E N T
1. The appellant was convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on diverse dates between November 2021 and August 2022 at Kibingo village within Kirinyaga County, intentionally caused his penis to penetrate the vagina of P.M. a child who is his daughter aged 11 years.
2. He is also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same dates, place and time as in the principal charge the appellant intentionally and unlawfully caused his penis to come into contact with the vagina of J.N.M. a girl child aged 11 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called 5 witnesses in support of its case. PW 1, P.M. the complainant and daughter of the appellant. PW 2, Mary Wakuthii, is the chief of the local area from which the appellant and the complainant resided, PW 3, Lucy Wangithi Wachira was the headteacher of the school where the complainant was attending in grade 6, PW 4, Hezron Macharia Maina, was a clinical officer from Kerugoya referral hospital and PW 5, PC Habiba Mulinzi was the investigating officer in the case.
4. The appellant DW 1, made an unsworn statement in defence and did not call a witness.
5. At the end of the trial, the appellant was found guilty of the principal charge of incest and he was convicted and sentenced to serve 40 years imprisonment.
6. PW 1, P.M. the complainant gave sworn evidence after a voire dire examination by the court and said she was a pupil in class 6 in a named school. She recounted one night on a date she could not remember in November 2021, his father, the appellant went home while drunk. He found her seated in a chair where she used to sleep. She was alone as her mother was not staying with them as she had a disagreement with the appellant. Her siblings were also not staying with them. She served him with food “githeri” that she had made. and he ate. The appellant was abusing a neighbor called Pauline calling her a witch and told the complainant not to talk to her.
7. The complainant said that the appellant pulled her from the seat to his bed. He removed her clothes, touched her breasts and between her private parts and then engaged in sexual intercourse with her. He told her not to tell anyone what he had done to her. The complainant said further that that on another occasion the appellant engaged in sexual intercourse with her. He even told her not to go to school. She also said the appellant would beat her. On one occasion when she forgot to purchase a candle, he chased her away and told her to go to her mother.
8. The complainant eventually reported the incidents to her class teacher and the head teacher, PW 2 who reported to the assistant chief. When the complainant went to the assistant chief, she recounted her ordeal at the hands of her father. She was taken to the police station where a report was made and then escorted for medical attention.
9. She said she could not remember the exact dates when the incidents were committed.
10. The complainant referred to her birth notification (Exh. 1) and said she was borne on 10/10/2010 making her just 11 years when the incidents allegedly happened.
11. In cross-examination she said she was afraid of reporting the incidents. That the appellant used to beat her mother and one day he beat her mother with a panga and almost killed her. She said that at one point the appellant left her and he went to stay at Njega’s while the complainant stayed with the family of Baba Ella and Mama Ella. Baba Ella then went to her mother and told her that they would no longer take care of the complainant. She said she did not know who told the appellant to go for her. She denied that her mother went to Mama Ella and caused a commotion there.
12. PW 2 said that she knew the appellant and the complainant’s mother whom she described as highly irresponsible and “mlevi wa kupindukia” a drunkard who does not do any work. The complainant reported the incident at her office on 27/9/2022. She told her that her father was engaging in sexual intercourse with her. PW 2 took her to the police station where the matter was taken up.
13. PW 3, said that the incident was first reported by the complainant to the class teacher who then alerted PW 3. PW 3 said she spoke to the complainant who at first was hesitant to speak out but later said her father usually had sex with her. She reported the matter to the assistant chief who took it up.
14. PW 4, Hezron Macharia Maina was a clinical officer from Kerugoya referral hospital. He testified that the complainant was examined for sexual assault at the hospital on 21/9/2022. She gave evidence of having been assaulted by her father between November 2021 and August 2022. PW 4 was shown a birth notification from which he ascertained the complainant’s age as 11 years and 11 months at the time. She was generally in fair general condition and her hymen was broken. There were no other injuries on her private parts. She had a white discharge from her vagina. High vaginal swab done showed high presence of epithelial cells and pus cells but no spermatozoa seen. There were no other significant findings in relation to the complaint of sexual assault.
15. PW 5 conducted investigations based on the report that she had received from the complainant and the school headteacher, chief and assistant chief. She produced as exhibit the complainant’s birth notification (Exh. 1). She had the accused person arrested and charged for the offence.
16. In his unsworn statement in defence the appellant said that he left the complainant to stay with her grandfather at Kanyeki-Ini west on 24/9/2021. However, he took care of her needs. When he went back there on 5/1/2022, he was told to take his child with him. Her mother was an alcoholic. He took the complainant and lived with her at Kibingo. When he was at work she stayed back with her younger siblings. He was surprised when he was arrested and told that he had sex with his child.
17. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the offence of incest of against the appellant beyond a reasonable doubt and thus convicted and sentenced him to 40 years’ imprisonment.
18. The appellant was aggrieved by the decision of the trial court and has set out to challenge the decision based on the following amended grounds of appeal, that the trial court erred in law and in fact:
a. by failing to consider that there was no evidence of eye witnesses.
b. by failing to consider that there was no penetration against the complainant.
c. by failing to see that the medical evidence was inconclusive and the age of the complainant was not proved.
d. by failing to consider that there was a grudge between the appellant and the mother of the complainant.
e. when she rejected the appellant’s sworn evidence without any cogent reason.
19. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
20. I have carefully examined and re-evaluated the evidence tendered before the trial court as well as the submissions by the appellant and the grounds of opposition by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
21. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno versus Republic (1972) EA 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence made. The 1st appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantital M Ruwala versus Republic (1957) EA 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 and collect finding and conclusion. It must make its own finding and draw its own conclusion. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact the trial court has had the advantages of hearing and seeing witnesses. See Peters versus Sunday Post (1958) EA 424.”
22. This position is recounted variously in other decisions for instance in Njoroge v Republic (1987) KLR 19.
23. Sections 20(1) of the Sexual Offences Act under which the appellant was convicted for the offence of incest provides as follows:
S. 20(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.
24. In the case of LOA v Republic [2020] KECA 927 (KLR) the Court of Appeal considering the ingredients of the offence of incest held that:
“We have no doubt at all that for an offence of incest to be proved, pursuant to section 20 of the Sexual Offences Act, the prosecution needs to prove the sex of the victim, the relationship of the victim to the perpetrator, penetration and the age of the victim. The latter requirement is for purposes of sentencing.”
25. There was no dispute that the complainant was female and that the appellant was her father. The complainant’s evidence was that she is female, notification of birth showed her date of birth and also her sex as female, the clinical officer who examined her genitalia confirmed that she was female and all the other prosecution witnesses being her school head teacher and the chief gave evidence that she was female. They referred to her as a girl. The appellant referred to her as his child.
26. The appellant’s first ground of appeal is that there was no eye witness to the alleged commission of the offence. I believe he meant there was no other witness besides the complainant.
27. The complainant was the only witness to testify that the appellant engaged in sexual intercourse with her and the other ingredients of the offence of incest as stated above. She was thus the only eye witness on the issue of penetration.
28. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
29. As stated above, the complainant gave sworn evidence.
30. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
31. The issue of reliance on the evidence of a victim when there is lack of corroboration of the victim’s evidence in a sexual offence, has been further explained by the High Court (Odunga, J. as he then was) in the case of Moses Mutahi Mugo v Republic [2022] eKLR. Upon considering various decisions on the matter the learned Judge said thus:
“…where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. What is required of the trial court is to be satisfied that the victim is telling the truth. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. The fact of the warning must appear in the judgement of the trial court and the record itself must show that the trial court was so satisfied…”
32. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
33. The appellant’s plea that there was no eye witness to the offence is therefore addressed by the proviso to section 124 of the Evidence Act. There need not be any other eye witness besides the complainant for as long as the court finds that the victim was telling the truth and also that it warned itself of the dangers of relying on the uncorroborated evidence of the victim.
34. In this case, the learned trial magistrate recorded after the voire dire examination of the complainant that she was satisfied the complainant was possessed of sufficient intelligence and understood the concept of honesty. That satisfies the requirement for the trial court to record in the proceedings that the complainant was telling the truth.
35. The trial court found that the complainant’s evidence that she was a daughter of the appellant was corroborated by the area chief, PW 2. Indeed, PW 2 said that she knew the family well and so she knew the complainant’s parents. She knew the appellant as her father and her mother whom she described as an irresponsible person due to her excessive drinking habits. The appellant conceded in his testimony that the complainant was his daughter and that he was staying with her at the time of the offence and that he would even leave his other children to her care when he went to work. I am satisfied that the prosecution proved that the complainant is appellant’s daughter.
36. On the ground that penetration was not proved the appellant submits that the medical evidence did not support that allegation as there were no positive findings of sexual intercourse and the scar of the broken hymen was old. He also submits that he was not taken for medical examination as the law requires.
37. The submissions by the appellant on lack of positive medical findings of penetration are not true because there was evidence that the complainant’s hymen was broken though not recently. What he submits as what he expected to be found during the medical examination such as freshly broken hymen, injuries, spermatozoa or infection is good evidence when available. In this case, the prosecution did not allege that the act causing the penetration of the complainant’s genitalia was recent. Evidence by the complainant was that the last act of sexual intercourse had been in August yet she made her first report to PW 3 around 21/9/2022. In that case, there was no expectation of getting the evidence the appellant is asking for. There was also no evidence of DNA analysis of anything as submitted by the appellant. In this case, there is no dispute that such evidence was not available. So, the court would only consider whether or not the victim was a truthful witness and the appropriate caution on relying on such uncorroborated evidence. This court is appropriately cautioned.
38. The appellant submits that the case was a frame up by the assistant chief who couched the complainant on these baseless allegations. That the assistant chief would go to his place of residence and abuse him. However, that line of defence was not taken up by the appellant in his defence either in cross-examination or in his testimony. Secondly, the report was not even initiated by the chief or assistant chief. They only received the report from the child’s head teacher whom the appellant has not mentioned that he had any differences with. I find his assertion against the assistant chief to be an afterthought that is without basis and I reject it.
39. On the question of proof of age, the Court of Appeal had this to say in the case of Mwalango Chichoro Mwanjembe v Republic [2016] eKLR:
“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 documentary 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 presented in proof of the victim’s age, it has to be credible and reliable.”
40. From the above decision, what the court needs to be satisfied on proof of age is that the evidence is credible and reliable.
41. The age of the complainant was confirmed by the birth notification produced in court which bears her full name and this was not challenged by the appellant. The same showed that the complainant was born on 10/10/2010 meaning that as at November 2021 when she said the incidents started, she was 11 years and 1 month.
42. The appellant also submitted that crucial witnesses such as the complainant’s mother and grandfather were not called as witnesses. However, from the complainant’s evidence, she was staying alone with the appellant. This was confirmed by PW 2 and even the appellant himself. They were not present when the incidents happened and therefore their evidence would not add any value to the case. Therefore, the failure to call them was not fatal to the prosecution’s case.
43. The contention that the learned trial magistrate did not give due regard to the appellant’s sworn evidence is not true. In the first place, he made an unsworn statement and not sworn evidence. Secondly, the learned trial magistrate set out the defence and evaluated it fully and was satisfied that it lacked credibility to challenge the evidence tendered by the prosecution.
44. The appellant also submitted that the SOA is being used to settle imaginary grudges, personal vendetta and for extortion purposes. Indeed, in certain cases, courts have found that to be the position. But it is not a general position to be alleged in every case. It is an issue that comes out from the evidence tendered at trial. The court will then examine the evidence and make its decision thereon. In this case the appellant did not mention a single incident where the same was applicable in his case. His ground of appeal on that issue was that there was a grudge between the appellant and the mother of the complainant. He did not elaborate it in his submissions. He also never raised it in his defence either through cross-examination of the witnesses or in his testimony. I find that allegation to be an afterthought that is baseless and I dismiss it.
45. Consequently, I am satisfied that the appellant was properly convicted and the conviction is affirmed.
46. The final ground raised by the appellant was on sentence, that his mitigation was not considered by the trial court and that he ought to have been given a lesser sentence in view of decisions from the Court of Appeal that minimum mandatory sentences under the Sexual Offences Act were unconstitutional.
47. The offence of incest carries a sentence of life imprisonment where the victim is under 18 years old. The learned trial magistrate imposed a sentence of 40 years’ imprisonment. The appellant’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences under the Sexual Offences Act are not unconstitutional.
48. I note the sentence imposed of 40 years’ imprisonment was during the period the Court of Appeal had determined that indeterminate life imprisonment was unconstitutional and therefore life imprisonment translated to 30- or 40-years imprisonment. In the cases of Ayako v Republic [2023] KECA 1563 (KLR), and MB v Republic [2024] KECA 324 (KLR) the Court of Appeal substituted indeterminate life imprisonment terms with a definite term of 30 years’ imprisonment while in Manyeso v Republic [2023] KECA 827 (KLR) the term was 40 years imprisonment. However, in a most recent decision from the Apex Court issued on 11/4/2025 in the case of Republic v Ayako [2025] KESC 20 (KLR), the Supreme Court set aside the decision of the Court of Appeal above determining the parameters of life imprisonment to the extent that it converted the Respondent’s life imprisonment sentence to thirty (30) years. However, considering the provisions of Article 50(2)(p) of the Constitution that the right to a fair trial includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing I will leave the sentence to run as passed by the trial court and the same to run from the date of arrest of the appellant on 22/9/2022, which takes into account the period he had been in custody pending his trial as provided for under section 333 of the Criminal Procedure Code.
49. In the result, the appeal is found to be without merit and is dismissed. The decision of the trial court convicting the appellant for incest is affirmed save for compliance with section 333 of the CPC above.
50. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 27th of May 2025 in the presence of:
The appellant in person from Nyeri prison.
Muriithi for the respondent
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE