REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E065 OF 2023
THOMAS MUICHA MWEMA............................................................APPELLANT
-VERSUS-
REPUBLIC ...................................................................................RESPONDENT
(Being an appeal from the judgment on conviction and sentence delivered on 18/10/2023 by Hon. D. N. Sure (PM) in Kangundo Chief Magistrate’s Court Sexual Offence Case No. E025 of 2023)
JUDGEMENT
Introduction
1. The Appellant was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act of 2006. The particulars were that on 14th day of May 2023 at Mukalwa village in Sub-County within Machakos County being a male person, caused his penis to penetrate the vagina of P.K.K a female person who to his knowledge is his granddaughter a child aged 5 years.
2. In the alternative the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act of 2006. The particulars were that on 14th day of May 2023 at Mukalwa village in Sub-County within Machakos County intentionally touched the vagina of P.K.K with his penis against her will.
3. During trial the prosecution called four witnesses who testified in support of their case. The Appellant was placed on his defence. He gave sworn evidence and call one witnesses to support his case. The trial magistrate did consider all the evidence adduced and found the Appellant guilty of the offence of incest and convicted him under Section 215 of the criminal procedure code. The Appellant was sentenced to 20 years imprisonment.
4. The Appellant being dissatisfied by both the conviction and sentence filed Amended grounds of appeal in his written submissions dated 28/04/2025 as follows:
1. THAT the learned trial magistrate erred in matters of law and fact by failing to find that the penile penetration of the complainant's genitalia was not proved to the requisite threshold as stipulated by law.
2. THAT the learned trial magistrate erred in matters of law and fact by failing to find that the complainant was an incredible person whose testimony could not be trusted to justify a conviction under the proviso of section 124 of the Evidence Act.
3. THAT, the learned trial magistrate erred in matters of law and fact by failing to find the whole of the prosecution's case was riddled with material contradiction and grudges which not only impeach on the credibility of witnesses but also show that the burden of prove was not discharged as required by the law.
4. THAT, the learned trial magistrate erred in matters of law and fact by failing to find that essential prosecution witnesses necessary to prove basis facts were not produced.
5. THAT, the trial Court failed to observe that the sentence imposed on the appellant was harsh.
The trial
The prosecution’s case
5. PW1 was the Complainant (minor). She gave unsworn evidence after undergoing voire dire examination for which the trial court found she was young to understand what an oath means. She stated her name as Kanini Precious Kaviu aged 5 years old. She was at (name withheld) Junior Academy in PP2. She stated that she didn’t know the trial Magistrate and when asked where she was, she smiled. She knew she had gone to court to sit down. She testified that she was wronged by Babu. She pointed at the Appellant at the dock. She stated that the Appellant is called Babu. She didn't know his other names. She stated that he removed her clothes and removed his clothes. She tried to dress and he stopped her. He started doing “tabia”. She was standing while he was seated on the chair. They were in Shosho's place. He used his susu. He put his susu in her susu. Her legs were spread apart. She was still standing. She told herseIf she would leave and go. Shosho came and found Babu naked. PW1 took another small child called Lucy and left. Keisha, who is big, was there. Keisha and Lucy were not in the house when Babu was doing tabia. Shosho came and said Babu was doing Tabia. That is when she left. Lucy was in the same room and was holding a wooden chair. She was younger than PW1. She was PW1’s sister. PW1 did not know her age but she does not go to school. Lucy was holding the chair where Babu was seated. She was just saying “wewe”. Shosho came and found Babu naked and told him it was tabia mbaya because he was naked. She did not tell her anything. She had dressed quickly before she came. PW1 went home and found mum had cooked porridge. She told her Babu had done bad manners. she did not say anything but took her to the hospital and to the police station. The police station is where the aunty is (tells the court about the police officer who was seated in court). She stated that the person who did that to her was the Appellant and pointed at him at the dock. She further stated that their house is fenced with wire and it is near the house of the Appellant. Their house has a gate but it is always unlocked. That was not the first time Babu had done bad manners but it is all the time. That the Appellant would be seated when he did the tabia mbaya. PW1 would be standing. She showed where her susu was by pointing to her vagina. She also showed where Babu's susu is also found by pointing to her genital area.
6. On cross examination, she stated that it was true the Appellant did the act. She was not seated. She still maintained that the Appellant did the tabia in his house. Shosho came and found the Appellant naked. She stated that she had spoken the truth in court. The Appellant chased his father and told him to go to Matinye. That is where her father takes the cows. That is what her mum told her. She stated that she didn’t like Babu because of this and that she was not lying in court. Her mum told her not to fear speaking and she had told the court what Babu did.
7. In re-examination she repeated that she was standing when Babu did the tabia mbaya.
8. PW2 was Veronica Njeri. She stated that she couldn’t recall the date but it was on a Wednesday. She did her work as usual and went to the mother-in-law's house. She told her to be going to the house in the evening. This was a Sunday. She found her daughter seated on the chair while her husband's trouser had been pulled down. She asked the Appellant, the husband, what was happening and he said nothing had happened and she should not disclose. She went to her uncle for advice and he proposed a meeting between the Appellant, her husband and herself. She was dissatisfied and consulted her mother. The mother referred her to the hospital and she took PW1 to Ngondu health care in Kamulu. A female doctor examined her and said PW1 had been defiled and severally. The doctor kept saying the place had been opened up. The doctor is called MSF who dealt with rape issues. She stated that PW1 was examined again and she was referred to the police station. She reported to Tala police station where she was told to avail the child. She did that the next day and they were referred to Kangundo Level 4 hospital where PW1 was re-examined. She returned to the police station and that is how the Appellant was arrested. She was given a P3 which was filled at Kangundo Level 4 hospital. Some tests were done. She recorded her statement at Tala police station.
9. She identified the medical summary from MSF-Mf1, P3-Mf2, Lab tests-Mf3, PRC-Mf4.
10. PW2 stated that her child PW1 was born on 5/9/2017. She had the Clinic Card-Mf5. The testified that her child was defiled by her grandfather Thomas Muicha who was seated at the dock and pointed at the Appellant.
11. On cross examination she stated that initially, she didn't believe it until she talked with her child who told her the Appellant used to give her glucose. PW2 testified that she was told by the Appellant’s wife that she found the Appellant with his trouser pulled down. That is why she took the child to the doctor for verification. The Appellant was not taken to the hospital and she didn't know why. She testified that she had never been chased from her homestead. The village elders have never sat to discuss her behaviors. It was true she disagreed with her husband. When she gave birth to her child, she developed health issues and that is why she went home for treatment. She had never been chased away except for the knife incident with her husband. She didn't know if the Appellant didn't want her with his son. It is not true she had told PW1 to lie in court. There is a time she disagreed with her husband and she took a panga in defence but she did not do anything with it. This is the only time she had taken a weapon. She stated that she had come from her mother's home to court because of her security on this case. She stated that she was with her husband but she decided to go home so that she could come to court. She knew of this issue from the Appellant’s wife. She was not aware of it. The Appellant’s wife was in court. PW2 didn't know why she did not record a statement. She stated that the Appellant’s wife wanted them to resolve the issues out of court and that was among the reasons which made her leave the homestead. She stated that the Appellant’s wife would support her case if she was allowed to testify.
There was no re-examination.
12. PW3 was John Mutua, a Clinical Officer at Kangundo Level 4 hospital. He stated that he filled out the p3 form and relied on treatment notes from Ngondu and Mama Lucy Hospital for the patient who was 5 years old. She was treated initially at Ngondu Health Centre. The mother reported that the child had been defiled by a grandfather on 14/5/2023. The patient said the incident had happened 4 times. She was examined and it showed she was stable but emotional. On vaginal examination, the genitalia was normal with discharge from the vagina. The internal genitalia were inflamed with a broken hymen. They opined she was defiled. She was referred to MSF at Mama Lucy which deals with gender-based violence.
13. At Mama Lucy, she was examined on 23/5/23 with the same report of defilement. A summary was taken. She said Babu removed her clothes. She tried to dress and the Appellant stopped her. The Appellant removed his clothes and started doing tabia. On examination:
- The vagina was moist and no injuries seen.
- The hymen was angular in shape but evasculated.
- The anal region was normal
- HIV test done
14. PW3 testified that further tests were done in their facility and PW1 was given treatment and she was given PEP, Hepatitis B vaccine. She was to be followed up with Counselling. That the PRC form was done and it tallies with the other documents. He produced in evidence the medical summary-Pexb.1, P3-Pexb.2, Lab test-Pexb.3, PRC Pexb 4 and treatment notes from Ngondu health center-Pexb.5.
15. On cross examination, PW3 stated that he didn’t know why the Appellant was not brought to the hospital. He didn't know if the Appellant was the culprit and that the court would decide. Ha stated that according to the medical notes, the hymen was perforated.
There was no re-examination.
16. PW4 was number 101516, CPL Wanyonyi Mercy based in Tala police station at the gender desk. She testified that on 23/5/23, in the evening, she was at the police station when a woman and a child came and reported a case of defilement. They told her that they had gone to Ngondu Dispensary and they were referred to Mama Lucy. She looked at the treatment notes and referred them to Kangundo Level 4 hospital where lab tests and P3 were done. When they returned, she interrogated the Complainant and she told me she was defiled by her paternal father. She told me on 14/5/23, the grandfather took him to the living room where he undressed her. The grandfather undressed halfway and made her sit on him. He had sex with the child and in the process, the grandfather's wife entered the room and found him partially naked. The child dressed and left. The grandfather, who is the Appellant, warned the wife not to disclose. On 17/5/23, the wife of the Appellant told the mother of the complainant what she had seen and a report was made to the brother of the accused. They wanted to resolve the issue as a family and this caused the Complainant to return to her maternal home and she took the child to the hospital and made the report to Tala police station. On the day of the report, she arrested the Appellant and charged him. She identified the Appellant at the dock and didn't know him prior. She was given a clinic card showing the child was 5 years. She was born on 5/9/17-Pexb.6.
17. On cross examination, she stated that she went to the Appellant’s place with the mother of the PW4 and she identified the Appellant. She stated that the mother was not chased away but she left the homestead after this incidence. That if the Appellant had a witness to what he was saying, that was his right. When they went to the Appellant, they identified themselves. They arrested the Appellant from the bedroom. Even if the Appellant were in a hole, they would have entered that hole to him.
There was no re-examination.
The Defence case
18. The Appellant gave unsworn testimony. He stated that he was Thomas Muicha Muema and he lived in Kalangine. He worked in a school. He stated that he couldn’t recall the date but he prayed the court to acquit him in this case because he did not do the act and did not make a mistake. He further stated that the prosecution did not avail sufficient evidence against him.
19. DW2 was Daina Kanini Muicha. She stated that she lived in Mukale at Sengani. She was a casual labourer in the market. The accused was her husband. Veronica (PW2) is her daughter-in-law. The Complainant PW1 is her grandchild. She didn't know anything about this case because her daughter in law left for her maternal home. She saw her husband being arrested and she followed them to Tala police station where she found the Appellant had defiled her grandchild. She stated that she did not see this and when Veronica left with her child, she did not tell her and they had no issue. She decided to report while in Joska. When she went to the house, she found the children playing outside. She did not find the Complainant and the Appellant together. He was dressed properly. Veronica and DW2 had problems because she used to leave the children to go drink liquor. She cautioned her and that is how she differed with the Appellant and they did not talk. There was a time Veronica chased her child with a knife and she was drunk. That is what she saw. She could not allow Veronica to return to the homestead because of her lies. Veronica told her that her children will not come back to their homestead even if she dies. She had not gone to their homestead.
20. On cross examination, she stated that she didn’t know what Veronica and her daughter thought to bring this case. She used to find PW1 with the Appellant but she did not find them naked. She didn’t know if the doctor lied. She had not said the investigating officer had said but those were his things. She had not said the Appellant is speaking the truth. She could only talk of what she had seen with her eyes.
21. The appeal was canvassed through written submissions.
Appellant’s submissions
22. The Appellant filed submissions on 28/04/2025 and listed the issues for determination according to the 5 grounds raised in the submissions.
In summary, the Appellant submitted on the grounds as follows:
23. Ground 1 was that the ingredient of penetration was not proved to the required standard. On this ground the Appellant submitted that the prosecution failed totally to prove that the penile penetration of the complainant was caused by the appellant. Penile penetration of the complainant's genitalia is a vital element of the offence of defilement that must be proved (albeit beyond reasonable doubt) to warrant a conviction.
24. Ground 2 was that the Complainant was an incredible person whose testimony could not be trusted to justify a conviction under the proviso of section 124 of the Evidence Act. On this the Appellant submitted that the learned trail magistrate invoked section 124 of the Evidence Act to ground conviction. To justify that, the trial court must first and foremost be convinced that the victim was telling the truth (Which was not). Indeed, a trial court is duty bound to analyze the relative credibility of a witness before admitting and relying on her testimony.
25. Ground 3 was that the whole of the prosecution's case was riddled with material contradiction and grudges which not only impeach on the credibility of witnesses but also show that the burden of prove was not discharged as required in law. The Appellant submitted that it is quite a concern which goes into the core of this case that with the seriousness of the offence against the appellant, the prosecution witnesses' testimonies were contradictory, varied from each other and were not corroborating.
26. Ground 4 was that essential prosecution witnesses necessary to prove basis facts were not produced. Under this ground, the Appellant submitted that the trial court relied on single witness while there were other witnesses whom the prosecution failed to call to testify so that the court would understand the genesis of this matter. The key witnesses being the complainant's grandmother whom allegedly found the Appellant naked and Keisha whom PW1 alleged she was bigger than her and she was with Lucy in the same room when the Appellant was defiling her. The prosecution failed in totally to call all these witnesses in order to hide their ill-agenda thus the instant case was not proved beyond reasonable doubt.
27. Ground 5 was that the trial Court failed to observe that the sentence imposed on the appellant was harsh. On this ground the Appellant submitted that during sentencing the learned trial court Magistrate stated that:
"1 have considered the law and it provides a minimum sentence of 10 years. I have considered the circumstances of the offence, the nature of the injuries sustained by PWl, the psychological effect and I am of the view that a sentence of 20 years in jail will suffice"
28. To him this clearly indicated that the Appellant was not convicted under minimum mandatory sentence.
29. The Appellant urged this court to award the appellant the benefit of this argument with regard to the whole reasoning and set aside the decision of the trial court
Respondent’s Submission.
30. The State opposes this appeal and submits that the elements of the offence were proved beyond reasonable doubt.
31. It was submitted that Section 20 (1) of the Sexual Offences Act provides any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge is 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 10 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.
32. The State relied on the case of JKM VS REPUBLIC [2020] eKLR it was stated that to establish a case under Section 20(1), the prosecution must prove the elements of the offence which are:
1. An indecent act or an act that causes penetration;
2. The victim must be a female person who is related to the perpetrator in the degrees set out in Section 22 of the Act.
33. In the Act, Indecent act means any unlawful 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 pornographic material to any person against his or her will;
34. Genital organs include the whole or part of male or female genital organs and for purposes of this Act includes the anus;
35. Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.
36. It was submitted that Section 22 (3) provides that an accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.
37. On an act that causes penetration, the State submitted that PWI stated that "He is called Babu. I don't know his other names. He removed my clothes; he removed his clothes. .he started doing tabia, I was standing while he was seated on the chair......he used his susu. He put his susu in my susu. My legs were like this” (spreads her hands), (Refers to proceedings at page 8 para 7- 13). She went on to identify the susu (points to her vagina. Babu's susu is also found here (points to her genital area. Refers to Proceedings page 9 para 9-10).
38. That this statement was further corroborated by PW3 the Clinical Officer, who stated that " the internal genitalia was inflamed with a broken hymen, they opined she was defiled." proceedings at pg 14 para 10-12.
This is sufficient evidence that an act that causes penetration was committed.
39. As regards the victim must be a female person who is related to the perpetrator, the State submitted that PWI identified the Appellant as "Babu" she stated that "I was wronged by Babu. He is seated there (points to the accused)" Proceedings at page 8 para 7-8. The Complainant identified the Appellant as her grandfather. This was corroborated by PW2 her mother and DW2 wife to the Appellant who referred to the Complainant as her grandchild. (refers to Proceedings at pg 13 para 11).
40. That it can also be alluded to from the evidence of PWI and PW2 that the Complainant spent time at her grandparent's home therefore the Appellant was well aware that the Complainant was his granddaughter.
The State submit that the charge against the Appellant was proved beyond reasonable.
41. On whether the trial court failed to consider the Appellant's defence, the State submitted that the Appellant in his defence denied committing the offence and claimed the prosecution did not avail sufficient evidence against him. The State maintained that the prosecution discharged its burden. That the trial Magistrate considered DW2' s evidence in which she claimed that she was not aware of the present case and all she witnesses was PW2 leave for her maternal home and the Appellant being arrested. She also spoke of a misunderstanding between PW2 and her son who is her husband. That DW2 confirmed that she used to find PWI together with the Appellant (Refers to Proceedings at page 22 para 9.” That it is worth noting that the witness did not deny that she had found the Appellant with PWI. Given the relationship between the Appellant and the witness her evidence should be considered against that of the other witnesses PWI and PW2 who have stated that she witnessed in part what had happened to PWI and that it was her report to PW2 that resulted in the arrest of the Appellant. Therefore, the Appellant's defence should be dismissed and does not displace the prosecution's case.
42. On whether the learned trial Magistrate erred in Law while exercising her discretion in sentencing by applying the wrong principles applicable for a first offender, the State submitted that the sentence passed is extremely lenient given the fact that the law prescribes a life sentence having proved that the victim was a minor aged 5 years old.
43. It was submitted further that the conviction and sentence against the Appellant is sufficient and appropriate.
44. As regards whether the learned trial Magistrate erred in both law and fact in making a finding that the Prosecution's evidence was overwhelming yet it was riddled with inconsistencies, the State submitted that the prosecution availed direct and documentary evidence. The testimony of PWI was well corroborated by the testimony of PW3 and PExb.1, 2, 3, 4, and 5. PWI’s evidence was very consistent with PW4, PW5 and PW6 (This court corrects that only 4 witnesses testified for the Prosecution and not 6). It is the State’s position that there was no inconsistencies or contradictions in the prosecution case. The ingredients of the offence were well covered in the trial.
45. The State relied on the case of Richard Munene v Republic [2018] eKLR, where the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness:
“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.
It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.
46. The State submitted that the conviction and sentence against the Appellant is sufficient and appropriate.
47. It was submitted that taking into consideration all the above-highlighted areas, this court is invited to uphold the conviction and the sentence imposed by the trial court.
Analysis and Determination
48. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -
“An appellant 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 the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.
49. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the Magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
50. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-
“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”
51. Having considered the trial court’s record, the amended grounds of appeal and the submissions of the parties, I find the following as issues for determination;
a. Whether the prosecution proved the case beyond reasonable doubt
b. Whether the sentence should be reviewed
52. It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
53. In this case, the Appellant was charged and sentenced under Section 20 (1) of the Sexual Offences Act which provide as follows:
(1) “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that if it is alleged in the information or charge 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.”
54. The ingredients for the offence of incest can be summarized as follows;
a.
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IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E065 OF 2023
THOMAS MUICHA MWEMA............................................................APPELLANT
-VERSUS-
REPUBLIC ...................................................................................RESPONDENT
(Being an appeal from the judgment on conviction and sentence delivered on 18/10/2023 by Hon. D. N. Sure (PM) in Kangundo Chief Magistrate’s Court Sexual Offence Case No. E025 of 2023)
JUDGEMENT
Introduction
1. The Appellant was charged with the offence of incest contrary to Section 20 (1) of the Sexual Offences Act of 2006. The particulars were that on 14th day of May 2023 at Mukalwa village in Sub-County within Machakos County being a male person, caused his penis to penetrate the vagina of P.K.K a female person who to his knowledge is his granddaughter a child aged 5 years.
2. In the alternative the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act of 2006. The particulars were that on 14th day of May 2023 at Mukalwa village in Sub-County within Machakos County intentionally touched the vagina of P.K.K with his penis against her will.
3. During trial the prosecution called four witnesses who testified in support of their case. The Appellant was placed on his defence. He gave sworn evidence and call one witnesses to support his case. The trial magistrate did consider all the evidence adduced and found the Appellant guilty of the offence of incest and convicted him under Section 215 of the criminal procedure code. The Appellant was sentenced to 20 years imprisonment.
4. The Appellant being dissatisfied by both the conviction and sentence filed Amended grounds of appeal in his written submissions dated 28/04/2025 as follows:
1. THAT the learned trial magistrate erred in matters of law and fact by failing to find that the penile penetration of the complainant's genitalia was not proved to the requisite threshold as stipulated by law.
2. THAT the learned trial magistrate erred in matters of law and fact by failing to find that the complainant was an incredible person whose testimony could not be trusted to justify a conviction under the proviso of section 124 of the Evidence Act.
3. THAT, the learned trial magistrate erred in matters of law and fact by failing to find the whole of the prosecution's case was riddled with material contradiction and grudges which not only impeach on the credibility of witnesses but also show that the burden of prove was not discharged as required by the law.
4. THAT, the learned trial magistrate erred in matters of law and fact by failing to find that essential prosecution witnesses necessary to prove basis facts were not produced.
5. THAT, the trial Court failed to observe that the sentence imposed on the appellant was harsh.
The trial
The prosecution’s case
5. PW1 was the Complainant (minor). She gave unsworn evidence after undergoing voire dire examination for which the trial court found she was young to understand what an oath means. She stated her name as Kanini Precious Kaviu aged 5 years old. She was at (name withheld) Junior Academy in PP2. She stated that she didn’t know the trial Magistrate and when asked where she was, she smiled. She knew she had gone to court to sit down. She testified that she was wronged by Babu. She pointed at the Appellant at the dock. She stated that the Appellant is called Babu. She didn't know his other names. She stated that he removed her clothes and removed his clothes. She tried to dress and he stopped her. He started doing “tabia”. She was standing while he was seated on the chair. They were in Shosho's place. He used his susu. He put his susu in her susu. Her legs were spread apart. She was still standing. She told herseIf she would leave and go. Shosho came and found Babu naked. PW1 took another small child called Lucy and left. Keisha, who is big, was there. Keisha and Lucy were not in the house when Babu was doing tabia. Shosho came and said Babu was doing Tabia. That is when she left. Lucy was in the same room and was holding a wooden chair. She was younger than PW1. She was PW1’s sister. PW1 did not know her age but she does not go to school. Lucy was holding the chair where Babu was seated. She was just saying “wewe”. Shosho came and found Babu naked and told him it was tabia mbaya because he was naked. She did not tell her anything. She had dressed quickly before she came. PW1 went home and found mum had cooked porridge. She told her Babu had done bad manners. she did not say anything but took her to the hospital and to the police station. The police station is where the aunty is (tells the court about the police officer who was seated in court). She stated that the person who did that to her was the Appellant and pointed at him at the dock. She further stated that their house is fenced with wire and it is near the house of the Appellant. Their house has a gate but it is always unlocked. That was not the first time Babu had done bad manners but it is all the time. That the Appellant would be seated when he did the tabia mbaya. PW1 would be standing. She showed where her susu was by pointing to her vagina. She also showed where Babu's susu is also found by pointing to her genital area.
6. On cross examination, she stated that it was true the Appellant did the act. She was not seated. She still maintained that the Appellant did the tabia in his house. Shosho came and found the Appellant naked. She stated that she had spoken the truth in court. The Appellant chased his father and told him to go to Matinye. That is where her father takes the cows. That is what her mum told her. She stated that she didn’t like Babu because of this and that she was not lying in court. Her mum told her not to fear speaking and she had told the court what Babu did.
7. In re-examination she repeated that she was standing when Babu did the tabia mbaya.
8. PW2 was Veronica Njeri. She stated that she couldn’t recall the date but it was on a Wednesday. She did her work as usual and went to the mother-in-law's house. She told her to be going to the house in the evening. This was a Sunday. She found her daughter seated on the chair while her husband's trouser had been pulled down. She asked the Appellant, the husband, what was happening and he said nothing had happened and she should not disclose. She went to her uncle for advice and he proposed a meeting between the Appellant, her husband and herself. She was dissatisfied and consulted her mother. The mother referred her to the hospital and she took PW1 to Ngondu health care in Kamulu. A female doctor examined her and said PW1 had been defiled and severally. The doctor kept saying the place had been opened up. The doctor is called MSF who dealt with rape issues. She stated that PW1 was examined again and she was referred to the police station. She reported to Tala police station where she was told to avail the child. She did that the next day and they were referred to Kangundo Level 4 hospital where PW1 was re-examined. She returned to the police station and that is how the Appellant was arrested. She was given a P3 which was filled at Kangundo Level 4 hospital. Some tests were done. She recorded her statement at Tala police station.
9. She identified the medical summary from MSF-Mf1, P3-Mf2, Lab tests-Mf3, PRC-Mf4.
10. PW2 stated that her child PW1 was born on 5/9/2017. She had the Clinic Card-Mf5. The testified that her child was defiled by her grandfather Thomas Muicha who was seated at the dock and pointed at the Appellant.
11. On cross examination she stated that initially, she didn't believe it until she talked with her child who told her the Appellant used to give her glucose. PW2 testified that she was told by the Appellant’s wife that she found the Appellant with his trouser pulled down. That is why she took the child to the doctor for verification. The Appellant was not taken to the hospital and she didn't know why. She testified that she had never been chased from her homestead. The village elders have never sat to discuss her behaviors. It was true she disagreed with her husband. When she gave birth to her child, she developed health issues and that is why she went home for treatment. She had never been chased away except for the knife incident with her husband. She didn't know if the Appellant didn't want her with his son. It is not true she had told PW1 to lie in court. There is a time she disagreed with her husband and she took a panga in defence but she did not do anything with it. This is the only time she had taken a weapon. She stated that she had come from her mother's home to court because of her security on this case. She stated that she was with her husband but she decided to go home so that she could come to court. She knew of this issue from the Appellant’s wife. She was not aware of it. The Appellant’s wife was in court. PW2 didn't know why she did not record a statement. She stated that the Appellant’s wife wanted them to resolve the issues out of court and that was among the reasons which made her leave the homestead. She stated that the Appellant’s wife would support her case if she was allowed to testify.
There was no re-examination.
12. PW3 was John Mutua, a Clinical Officer at Kangundo Level 4 hospital. He stated that he filled out the p3 form and relied on treatment notes from Ngondu and Mama Lucy Hospital for the patient who was 5 years old. She was treated initially at Ngondu Health Centre. The mother reported that the child had been defiled by a grandfather on 14/5/2023. The patient said the incident had happened 4 times. She was examined and it showed she was stable but emotional. On vaginal examination, the genitalia was normal with discharge from the vagina. The internal genitalia were inflamed with a broken hymen. They opined she was defiled. She was referred to MSF at Mama Lucy which deals with gender-based violence.
13. At Mama Lucy, she was examined on 23/5/23 with the same report of defilement. A summary was taken. She said Babu removed her clothes. She tried to dress and the Appellant stopped her. The Appellant removed his clothes and started doing tabia. On examination:
- The vagina was moist and no injuries seen.
- The hymen was angular in shape but evasculated.
- The anal region was normal
- HIV test done
14. PW3 testified that further tests were done in their facility and PW1 was given treatment and she was given PEP, Hepatitis B vaccine. She was to be followed up with Counselling. That the PRC form was done and it tallies with the other documents. He produced in evidence the medical summary-Pexb.1, P3-Pexb.2, Lab test-Pexb.3, PRC Pexb 4 and treatment notes from Ngondu health center-Pexb.5.
15. On cross examination, PW3 stated that he didn’t know why the Appellant was not brought to the hospital. He didn't know if the Appellant was the culprit and that the court would decide. Ha stated that according to the medical notes, the hymen was perforated.
There was no re-examination.
16. PW4 was number 101516, CPL Wanyonyi Mercy based in Tala police station at the gender desk. She testified that on 23/5/23, in the evening, she was at the police station when a woman and a child came and reported a case of defilement. They told her that they had gone to Ngondu Dispensary and they were referred to Mama Lucy. She looked at the treatment notes and referred them to Kangundo Level 4 hospital where lab tests and P3 were done. When they returned, she interrogated the Complainant and she told me she was defiled by her paternal father. She told me on 14/5/23, the grandfather took him to the living room where he undressed her. The grandfather undressed halfway and made her sit on him. He had sex with the child and in the process, the grandfather's wife entered the room and found him partially naked. The child dressed and left. The grandfather, who is the Appellant, warned the wife not to disclose. On 17/5/23, the wife of the Appellant told the mother of the complainant what she had seen and a report was made to the brother of the accused. They wanted to resolve the issue as a family and this caused the Complainant to return to her maternal home and she took the child to the hospital and made the report to Tala police station. On the day of the report, she arrested the Appellant and charged him. She identified the Appellant at the dock and didn't know him prior. She was given a clinic card showing the child was 5 years. She was born on 5/9/17-Pexb.6.
17. On cross examination, she stated that she went to the Appellant’s place with the mother of the PW4 and she identified the Appellant. She stated that the mother was not chased away but she left the homestead after this incidence. That if the Appellant had a witness to what he was saying, that was his right. When they went to the Appellant, they identified themselves. They arrested the Appellant from the bedroom. Even if the Appellant were in a hole, they would have entered that hole to him.
There was no re-examination.
The Defence case
18. The Appellant gave unsworn testimony. He stated that he was Thomas Muicha Muema and he lived in Kalangine. He worked in a school. He stated that he couldn’t recall the date but he prayed the court to acquit him in this case because he did not do the act and did not make a mistake. He further stated that the prosecution did not avail sufficient evidence against him.
19. DW2 was Daina Kanini Muicha. She stated that she lived in Mukale at Sengani. She was a casual labourer in the market. The accused was her husband. Veronica (PW2) is her daughter-in-law. The Complainant PW1 is her grandchild. She didn't know anything about this case because her daughter in law left for her maternal home. She saw her husband being arrested and she followed them to Tala police station where she found the Appellant had defiled her grandchild. She stated that she did not see this and when Veronica left with her child, she did not tell her and they had no issue. She decided to report while in Joska. When she went to the house, she found the children playing outside. She did not find the Complainant and the Appellant together. He was dressed properly. Veronica and DW2 had problems because she used to leave the children to go drink liquor. She cautioned her and that is how she differed with the Appellant and they did not talk. There was a time Veronica chased her child with a knife and she was drunk. That is what she saw. She could not allow Veronica to return to the homestead because of her lies. Veronica told her that her children will not come back to their homestead even if she dies. She had not gone to their homestead.
20. On cross examination, she stated that she didn’t know what Veronica and her daughter thought to bring this case. She used to find PW1 with the Appellant but she did not find them naked. She didn’t know if the doctor lied. She had not said the investigating officer had said but those were his things. She had not said the Appellant is speaking the truth. She could only talk of what she had seen with her eyes.
21. The appeal was canvassed through written submissions.
Appellant’s submissions
22. The Appellant filed submissions on 28/04/2025 and listed the issues for determination according to the 5 grounds raised in the submissions.
In summary, the Appellant submitted on the grounds as follows:
23. Ground 1 was that the ingredient of penetration was not proved to the required standard. On this ground the Appellant submitted that the prosecution failed totally to prove that the penile penetration of the complainant was caused by the appellant. Penile penetration of the complainant's genitalia is a vital element of the offence of defilement that must be proved (albeit beyond reasonable doubt) to warrant a conviction.
24. Ground 2 was that the Complainant was an incredible person whose testimony could not be trusted to justify a conviction under the proviso of section 124 of the Evidence Act. On this the Appellant submitted that the learned trail magistrate invoked section 124 of the Evidence Act to ground conviction. To justify that, the trial court must first and foremost be convinced that the victim was telling the truth (Which was not). Indeed, a trial court is duty bound to analyze the relative credibility of a witness before admitting and relying on her testimony.
25. Ground 3 was that the whole of the prosecution's case was riddled with material contradiction and grudges which not only impeach on the credibility of witnesses but also show that the burden of prove was not discharged as required in law. The Appellant submitted that it is quite a concern which goes into the core of this case that with the seriousness of the offence against the appellant, the prosecution witnesses' testimonies were contradictory, varied from each other and were not corroborating.
26. Ground 4 was that essential prosecution witnesses necessary to prove basis facts were not produced. Under this ground, the Appellant submitted that the trial court relied on single witness while there were other witnesses whom the prosecution failed to call to testify so that the court would understand the genesis of this matter. The key witnesses being the complainant's grandmother whom allegedly found the Appellant naked and Keisha whom PW1 alleged she was bigger than her and she was with Lucy in the same room when the Appellant was defiling her. The prosecution failed in totally to call all these witnesses in order to hide their ill-agenda thus the instant case was not proved beyond reasonable doubt.
27. Ground 5 was that the trial Court failed to observe that the sentence imposed on the appellant was harsh. On this ground the Appellant submitted that during sentencing the learned trial court Magistrate stated that:
"1 have considered the law and it provides a minimum sentence of 10 years. I have considered the circumstances of the offence, the nature of the injuries sustained by PWl, the psychological effect and I am of the view that a sentence of 20 years in jail will suffice"
28. To him this clearly indicated that the Appellant was not convicted under minimum mandatory sentence.
29. The Appellant urged this court to award the appellant the benefit of this argument with regard to the whole reasoning and set aside the decision of the trial court
Respondent’s Submission.
30. The State opposes this appeal and submits that the elements of the offence were proved beyond reasonable doubt.
31. It was submitted that Section 20 (1) of the Sexual Offences Act provides any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge is 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 10 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.
32. The State relied on the case of JKM VS REPUBLIC [2020] eKLR it was stated that to establish a case under Section 20(1), the prosecution must prove the elements of the offence which are:
1. An indecent act or an act that causes penetration;
2. The victim must be a female person who is related to the perpetrator in the degrees set out in Section 22 of the Act.
33. In the Act, Indecent act means any unlawful 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 pornographic material to any person against his or her will;
34. Genital organs include the whole or part of male or female genital organs and for purposes of this Act includes the anus;
35. Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.
36. It was submitted that Section 22 (3) provides that an accused person shall be presumed, unless the contrary is proved, to have had knowledge, at the time of the alleged offence, of the relationship existing between him or her and the other party to the incest.
37. On an act that causes penetration, the State submitted that PWI stated that "He is called Babu. I don't know his other names. He removed my clothes; he removed his clothes. .he started doing tabia, I was standing while he was seated on the chair......he used his susu. He put his susu in my susu. My legs were like this” (spreads her hands), (Refers to proceedings at page 8 para 7- 13). She went on to identify the susu (points to her vagina. Babu's susu is also found here (points to her genital area. Refers to Proceedings page 9 para 9-10).
38. That this statement was further corroborated by PW3 the Clinical Officer, who stated that " the internal genitalia was inflamed with a broken hymen, they opined she was defiled." proceedings at pg 14 para 10-12.
This is sufficient evidence that an act that causes penetration was committed.
39. As regards the victim must be a female person who is related to the perpetrator, the State submitted that PWI identified the Appellant as "Babu" she stated that "I was wronged by Babu. He is seated there (points to the accused)" Proceedings at page 8 para 7-8. The Complainant identified the Appellant as her grandfather. This was corroborated by PW2 her mother and DW2 wife to the Appellant who referred to the Complainant as her grandchild. (refers to Proceedings at pg 13 para 11).
40. That it can also be alluded to from the evidence of PWI and PW2 that the Complainant spent time at her grandparent's home therefore the Appellant was well aware that the Complainant was his granddaughter.
The State submit that the charge against the Appellant was proved beyond reasonable.
41. On whether the trial court failed to consider the Appellant's defence, the State submitted that the Appellant in his defence denied committing the offence and claimed the prosecution did not avail sufficient evidence against him. The State maintained that the prosecution discharged its burden. That the trial Magistrate considered DW2' s evidence in which she claimed that she was not aware of the present case and all she witnesses was PW2 leave for her maternal home and the Appellant being arrested. She also spoke of a misunderstanding between PW2 and her son who is her husband. That DW2 confirmed that she used to find PWI together with the Appellant (Refers to Proceedings at page 22 para 9.” That it is worth noting that the witness did not deny that she had found the Appellant with PWI. Given the relationship between the Appellant and the witness her evidence should be considered against that of the other witnesses PWI and PW2 who have stated that she witnessed in part what had happened to PWI and that it was her report to PW2 that resulted in the arrest of the Appellant. Therefore, the Appellant's defence should be dismissed and does not displace the prosecution's case.
42. On whether the learned trial Magistrate erred in Law while exercising her discretion in sentencing by applying the wrong principles applicable for a first offender, the State submitted that the sentence passed is extremely lenient given the fact that the law prescribes a life sentence having proved that the victim was a minor aged 5 years old.
43. It was submitted further that the conviction and sentence against the Appellant is sufficient and appropriate.
44. As regards whether the learned trial Magistrate erred in both law and fact in making a finding that the Prosecution's evidence was overwhelming yet it was riddled with inconsistencies, the State submitted that the prosecution availed direct and documentary evidence. The testimony of PWI was well corroborated by the testimony of PW3 and PExb.1, 2, 3, 4, and 5. PWI’s evidence was very consistent with PW4, PW5 and PW6 (This court corrects that only 4 witnesses testified for the Prosecution and not 6). It is the State’s position that there was no inconsistencies or contradictions in the prosecution case. The ingredients of the offence were well covered in the trial.
45. The State relied on the case of Richard Munene v Republic [2018] eKLR, where the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness:
“Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused.
It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.
46. The State submitted that the conviction and sentence against the Appellant is sufficient and appropriate.
47. It was submitted that taking into consideration all the above-highlighted areas, this court is invited to uphold the conviction and the sentence imposed by the trial court.
Analysis and Determination
48. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -
“An appellant 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 the 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 conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.
49. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the Magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
50. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-
“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”
51. Having considered the trial court’s record, the amended grounds of appeal and the submissions of the parties, I find the following as issues for determination;
a. Whether the prosecution proved the case beyond reasonable doubt
b. Whether the sentence should be reviewed
52. It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
53. In this case, the Appellant was charged and sentenced under Section 20 (1) of the Sexual Offences Act which provide as follows:
(1) “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that if it is alleged in the information or charge 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.”
54. The ingredients for the offence of incest can be summarized as follows;
a.
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