(Being an Appeal against conviction and sentence in Makindu Magistrates Courts S.O No. 21 of 2019 delivered on 23/01/2020 y Hon. D. Karani (PM.)
1. The Appellant was charged with the offence of incest contrary to Section 20 of the Sexual Offences Act No. 3 of 2006 and faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 6 of 2006 .
2. The particulars of the offence under the main charge are that on an unknown date in May, 2018 and on 26 th January, 2019 at N. Location in Kibwezi Sub County within Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of AKN, a child aged 13 years, who is his daughter.
3. The particulars of the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act are that on an unknown date in May, 2018 and on 26 th January, 2019 at N. Location in Kibwezi Sub County within Makueni County, the Appellant intentionally and unlawfully touched the vagina of AKN , a child aged 13 years, who is his daughter.
4. The Appellant was, after trial, found guilty on the main charge of incest and was sentenced to thirty (30) years’ imprisonment.
5. Aggrieved by the conviction and sentence, he preferred the present appeal. The Petition of Appeal raised four grounds of appeal;
I. THAT the learned trial magistrate erred in law and in fact for failing to find that the appellant was not properly identified.
II. THAT the learned trial magistrate erred in law and in fact for failing to find that the prosecution failed to prove penetration of the complainant’s genitalia.
III. THAT the learned trial magistrate erred in law and in fact for failing to find that the complainant was not a credible person who can be trusted to have made an error free complaint;
IV. THAT the learned trial magistrate erred in law and in fact by not giving weight to the appellant’s defence.
Written submissions
6. The Appellant submitted that the learned trial magistrate erred in matters of both law and fact by failing to find that the prosecution case was not proved beyond reasonable doubt. He submitted that the elements of penetration and identification had not been proved, and further that the trial Court failed to consider his defence.
7. The Respondent submitted that the conviction was both correct and justified, and that the sentence was lawful. The Respondent maintained that there are no grounds for the appellate Court to interfere with either the conviction or the sentence.
Determination
8. I have analyzed the evidence that was tendered in the trial Court by both the Appellant and the prosecution, the grounds of appeal, and the written submissions. The issues for determination are two pronged;
i. Whether the prosecution proved their case to the required threshold, and;
ii. Whether the sentence was appropriate.
9. It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the prosecution established its case against the appellant beyond reasonable doubt?
10. For the offence of incest to suffice, there must be proof beyond reasonable doubt of either ‘the commission of an indecent act or penetration’. Section 20(1) of the Sexual Offences Act No. 3 of 2006 which is titled “incest by male persons”, provides as follows;
“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.” (emphasis is mine)
11. On the other hand, under Section 11 (1) of the Act, the offence of indecent act with a minor which was the minor alternative offence provides as follows:
“Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
12. Section 2(1) of the Act defines indecent act as an intentional act which causes;
“(a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.
(b) exposure or display of any phonographic material to any person against his or her will, but does not include an act which causes penetration.”
13. The record before me shows that the Complainant was properly subjected to voire dire examination at the end of which the learned Magistrate concluded that she was intelligent and understood the duty of speaking the truth and the nature of an oath and directed her to give sworn evidence.
14. Having considered the prosecutorial evidence during the trial Court’s proceedings, I agree with the learned trial magistrate that the crucial element of the Complainant’s relationship to the Appellant was established. The Appellant is the father of the Complainant.
15. The minor’s age was determined by the assessment report, which indicated that the Complainant was approximately 13 years old in 2019. The Complainant stated that she was in Class 4 and 10 years old when she testified. During the period in question, the Complainant was a child; she had not yet reached the age of majority of 18 years.
16. The Complainant stated that the incident which happened in May, 2018, the Appellant, on arrival at home at night, picked her from her bed and took her to his bed, where he did ‘tabia mbaya’ after he removed her clothes. The Complainant stated that the Appellant inserted his ‘thing for urinating’ into ‘her thing for urinating’ and warned her against reporting the incident.
17. PW2 and PW3 are teachers at the school attended by the Complainant. They testified in Court regarding the steps taken following the Complainant’s report of being defiled by her father. PW3 stated that the Complainant informed her of the incident on 25 th January, 2019. PW3 then escalated the issue to PW2, who notified the child’s relatives. Additionally, PW2 took the child for a medical examination and recorded her statement after the matter was reported to the police.
18. The Appellant stated in his defence that he was framed in the current case after he confronted his stepbrother, Alphonce, who wanted to sell his property. He denied the offence and maintained his innocence.
19. In assessing the Complainant’s testimony, I find her recollection of the sexual encounter to consist of detailed and vivid accounts. She used descriptive words and her description leaves no doubt in my mind that what she referred to as ‘his thing for urinating’ was the penis, and ‘her thing for urinating’ was in reference to the vagina.
20. In Muganga Chilejo Saha v Republic [2017], eKLR the Court of Appeal analyzed various cases where descriptive terms had been used to narrate sexual abuse;
“Naturally, children who are victims of sexual abuse are likely to be devastated by the experience, and given their innocence, they may feel shy, embarrassed, and ashamed to relate that experience before people and more so in a courtrooms. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya” (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing” (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement.”
21. The medical reports revealed a broken hymen with old scars, swelling, and hyperaemia in the vagina. The medics documented a finding of serial penetration.
22. The Complainant stated that she was alone with the Appellant when the incident occurred. She recounted that the Appellant picked her up from her bed and moved her to his bed. Even though it was night, she was unequivocally clear that the assailant was her father.
23. She stated that following her mother’s passing, she lived with the Appellant while her older brother, who stayed with them, ran away from home to stay in town. She also explained why she had not reported the incident to her brother, sister, uncle, or grandmother. She stated that her brother had moved out, she feared her sister and that she was not permitted to visit her uncle. All the explanations are plausible. She reported the matter to a teacher at school, and I see no reason to believe she acted with any ill intent.
24. The provisions of Section 124 of the Evidence Act, are informative to the end that a conviction can rest squarely on the sole testimony of the victim/complainant. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.”
25. The Court evaluated the evidence and concluded that the victim was truthful. The Appellant’s claim that the charges were fabrications by the Complainant was found to lack basis. The trial Court considered the issue and deemed it an afterthought.
26. I have reached the same conclusion as the learned trial magistrate.
27. In this case, the prosecution has proven its case against the Appellant beyond reasonable doubt on the offence of Incest contrary to Section 20 (1) of the Sexual Offences Act.
28. As to the 30-year custodial sentence imposed on the Appellant, I am of the view that the trial Court duly exercised its discretion.
29. Section 20 (1) provides as follows;
“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.”
30. The recent position, on the strict principles guiding sexual offences sentences, was considered by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024. The Supreme Court held that where a sentence is set in statute, the legislature has already determined the course unless declared unconstitutional.
31. The sentence was delivered before the Supreme Court's decision. I have reviewed the trial Court’s sentencing decision, and it is noteworthy that the magistrate specified the factors she considered in determining the sentence length. I find the sentence was inherently sound under the circumstances. Any interference would be prejudicial to the Appellant, especially considering that the state did not apply to enhance the sentence in this case.
32. Accordingly, I uphold the conviction and sentence of the trial Court. The sentence computation shall commence from 1 st February, 2019 the date of arrest.
33. It is so ordered.
DATED, DELIVERED and DELIVERED at NAIROBI through the Microsoft Teams Online Platform on this 06 th day of February 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant - Beryl
Applicant present
Ms. Mutua, ODPP
Page 2 of 2
1. The Appellant was charged with the offence of incest contrary to Section 20 of the Sexual Offences Act No. 3 of 2006 and faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 6 of 2006 .
2. The particulars of the offence under the main charge are that on an unknown date in May, 2018 and on 26 th January, 2019 at N. Location in Kibwezi Sub County within Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of AKN, a child aged 13 years, who is his daughter.
3. The particulars of the alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act are that on an unknown date in May, 2018 and on 26 th January, 2019 at N. Location in Kibwezi Sub County within Makueni County, the Appellant intentionally and unlawfully touched the vagina of AKN , a child aged 13 years, who is his daughter.
4. The Appellant was, after trial, found guilty on the main charge of incest and was sentenced to thirty (30) years’ imprisonment.
5. Aggrieved by the conviction and sentence, he preferred the present appeal. The Petition of Appeal raised four grounds of appeal;
I. THAT the learned trial magistrate erred in law and in fact for failing to find that the appellant was not properly identified.
II. THAT the learned trial magistrate erred in law and in fact for failing to find that the prosecution failed to prove penetration of the complainant’s genitalia.
III. THAT the learned trial magistrate erred in law and in fact for failing to find that the complainant was not a credible person who can be trusted to have made an error free complaint;
IV. THAT the learned trial magistrate erred in law and in fact by not giving weight to the appellant’s defence.
Written submissions
6. The Appellant submitted that the learned trial magistrate erred in matters of both law and fact by failing to find that the prosecution case was not proved beyond reasonable doubt. He submitted that the elements of penetration and identification had not been proved, and further that the trial Court failed to consider his defence.
7. The Respondent submitted that the conviction was both correct and justified, and that the sentence was lawful. The Respondent maintained that there are no grounds for the appellate Court to interfere with either the conviction or the sentence.
Determination
8. I have analyzed the evidence that was tendered in the trial Court by both the Appellant and the prosecution, the grounds of appeal, and the written submissions. The issues for determination are two pronged;
i. Whether the prosecution proved their case to the required threshold, and;
ii. Whether the sentence was appropriate.
9. It is the duty of the first Appellate Court to carefully examine and analyze afresh the evidence presented from the trial Court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination. ( See Pandya vs. Republic (1957) EA 336 ).
Whether the prosecution established its case against the appellant beyond reasonable doubt?
10. For the offence of incest to suffice, there must be proof beyond reasonable doubt of either ‘the commission of an indecent act or penetration’. Section 20(1) of the Sexual Offences Act No. 3 of 2006 which is titled “incest by male persons”, provides as follows;
“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.” (emphasis is mine)
11. On the other hand, under Section 11 (1) of the Act, the offence of indecent act with a minor which was the minor alternative offence provides as follows:
“Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
12. Section 2(1) of the Act defines indecent act as an intentional act which causes;
“(a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.
(b) exposure or display of any phonographic material to any person against his or her will, but does not include an act which causes penetration.”
13. The record before me shows that the Complainant was properly subjected to voire dire examination at the end of which the learned Magistrate concluded that she was intelligent and understood the duty of speaking the truth and the nature of an oath and directed her to give sworn evidence.
14. Having considered the prosecutorial evidence during the trial Court’s proceedings, I agree with the learned trial magistrate that the crucial element of the Complainant’s relationship to the Appellant was established. The Appellant is the father of the Complainant.
15. The minor’s age was determined by the assessment report, which indicated that the Complainant was approximately 13 years old in 2019. The Complainant stated that she was in Class 4 and 10 years old when she testified. During the period in question, the Complainant was a child; she had not yet reached the age of majority of 18 years.
16. The Complainant stated that the incident which happened in May, 2018, the Appellant, on arrival at home at night, picked her from her bed and took her to his bed, where he did ‘tabia mbaya’ after he removed her clothes. The Complainant stated that the Appellant inserted his ‘thing for urinating’ into ‘her thing for urinating’ and warned her against reporting the incident.
17. PW2 and PW3 are teachers at the school attended by the Complainant. They testified in Court regarding the steps taken following the Complainant’s report of being defiled by her father. PW3 stated that the Complainant informed her of the incident on 25 th January, 2019. PW3 then escalated the issue to PW2, who notified the child’s relatives. Additionally, PW2 took the child for a medical examination and recorded her statement after the matter was reported to the police.
18. The Appellant stated in his defence that he was framed in the current case after he confronted his stepbrother, Alphonce, who wanted to sell his property. He denied the offence and maintained his innocence.
19. In assessing the Complainant’s testimony, I find her recollection of the sexual encounter to consist of detailed and vivid accounts. She used descriptive words and her description leaves no doubt in my mind that what she referred to as ‘his thing for urinating’ was the penis, and ‘her thing for urinating’ was in reference to the vagina.
20. In Muganga Chilejo Saha v Republic [2017], eKLR the Court of Appeal analyzed various cases where descriptive terms had been used to narrate sexual abuse;
“Naturally, children who are victims of sexual abuse are likely to be devastated by the experience, and given their innocence, they may feel shy, embarrassed, and ashamed to relate that experience before people and more so in a courtrooms. If the trend in the decided cases is anything to go by, courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya” (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing” (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement.”
21. The medical reports revealed a broken hymen with old scars, swelling, and hyperaemia in the vagina. The medics documented a finding of serial penetration.
22. The Complainant stated that she was alone with the Appellant when the incident occurred. She recounted that the Appellant picked her up from her bed and moved her to his bed. Even though it was night, she was unequivocally clear that the assailant was her father.
23. She stated that following her mother’s passing, she lived with the Appellant while her older brother, who stayed with them, ran away from home to stay in town. She also explained why she had not reported the incident to her brother, sister, uncle, or grandmother. She stated that her brother had moved out, she feared her sister and that she was not permitted to visit her uncle. All the explanations are plausible. She reported the matter to a teacher at school, and I see no reason to believe she acted with any ill intent.
24. The provisions of Section 124 of the Evidence Act, are informative to the end that a conviction can rest squarely on the sole testimony of the victim/complainant. See Daniel Maina Wambugu v Republic [2018] KEHC 5656 (KLR).
Section 124 of the Evidence Act, Cap 80 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.”
25. The Court evaluated the evidence and concluded that the victim was truthful. The Appellant’s claim that the charges were fabrications by the Complainant was found to lack basis. The trial Court considered the issue and deemed it an afterthought.
26. I have reached the same conclusion as the learned trial magistrate.
27. In this case, the prosecution has proven its case against the Appellant beyond reasonable doubt on the offence of Incest contrary to Section 20 (1) of the Sexual Offences Act.
28. As to the 30-year custodial sentence imposed on the Appellant, I am of the view that the trial Court duly exercised its discretion.
29. Section 20 (1) provides as follows;
“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.”
30. The recent position, on the strict principles guiding sexual offences sentences, was considered by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024. The Supreme Court held that where a sentence is set in statute, the legislature has already determined the course unless declared unconstitutional.
31. The sentence was delivered before the Supreme Court's decision. I have reviewed the trial Court’s sentencing decision, and it is noteworthy that the magistrate specified the factors she considered in determining the sentence length. I find the sentence was inherently sound under the circumstances. Any interference would be prejudicial to the Appellant, especially considering that the state did not apply to enhance the sentence in this case.
32. Accordingly, I uphold the conviction and sentence of the trial Court. The sentence computation shall commence from 1 st February, 2019 the date of arrest.
33. It is so ordered.
DATED, DELIVERED and DELIVERED at NAIROBI through the Microsoft Teams Online Platform on this 06 th day of February 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant - Beryl
Applicant present
Ms. Mutua, ODPP
Page 2 of 2