REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E039 OF 2022
YUSUF MABRUK RAMADHAN………………………………..APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
JUDGEMENT
1. This as an appeal against the Appellant’s conviction and sentence of life imprisonment for incest under Section 20(1) of the Sexual Offences Act No.3 of 2006. The particulars of the Offence were that the appellant on diverse dates between the 1st day of January 2021 and 22nd day of March 2021 at Sio Sub-Location in Musikoma Location within Bungoma County being a male person, caused his penis to penetrate the vagina of H.N.Y a female aged 14 years who was to his knowledge his daughter.
2. At trial, the Appellant pleaded NOT guilty and after hearing he was convicted and sentenced to life imprisonment.
3. The was aggrieved by the judgment of the trial court and he thus proffered the appeal herein which he premises on the following grounds:
a. That he pleaded not guilty to the said charges.
b. That the trial Magistrate erred in law and in fact in conducting proceedings that violated the right of the Appellant as per the provisions of the law.
c. That the trial Magistrate erred in law and fact by arriving at a decision while regarding extraneous factors in judgement making.
d. That the trial Magistrate erred in law and fact in failing to appreciate that the mother of the complainant in this matter had an intention to sue him to certify her aims in selling family plots
e. That the evidence of the clinical officer lacked support of the DNA tests to prove the Prosecution case.
f. That the trial Magistrate erred in law and fact in failing to put into consideration the matters of this nature required a DNA test as per the Sexual Offences Act No. 3 of 2006 laws of Kenya.
g. That the sentence imposed upon the Appellant is harsh and excess in the circumstances.
h. That he wishes to raise more grounds of mitigation in support of his appeal when the same comes up for hearing.
4. The role of this Court in its appellate jurisdiction is to review all the evidence and to make its own conclusions while being careful to note that it neither heard nor saw the witnesses as they testified wherefore it has the disadvantage of not gauging the demeanour of witnesses (See Okeno v R [1972] EA 32).
5. The brief facts are that HNY, testified as PW1 after being found able to give sworn testimony following a voir dire examination. She testified that she is 15 years old and that the Appellant herein is her father. According to her, on 22nd March 2021, at night she went to her grandmother’s house and his father was there. She proceeded to handle her self-care routine and went into the room where she slept with her brothers. She told the Court that as she was sleeping she heard the Appellant call her. She proceeded to see what he needed and he told her to proceed to take a shower. She told the Appellant that she normally showers in the morning but he insisted. When she declined, the Appellant forcibly took her hands a, slapped her and removed her clothes. The Appellant started to vigorously wash her and he touched her breast and removed her panty and began to touch her genitals. The Appellant later told her that she will be sleeping in his bed and he forcefully led her to where he slept while she was naked. She told the Court that the Appellant removed his trousers and short and took his penis and inserted it into her vagina. He threatened to kill her with a panga, which was on the bed, if she dared to scream. He told the Court that that was the second time he was doing that to her and that the first incident happened in November 2020 in her room. She told the Court that there was a discord between the Appellant and her mother that led to her mother seeking shelter at her sister’s place and that as she slept the Appellant came in with a torch, shinning its light on her face. She told the Court that the Appellant wondered why she was with her brothers in that room and the Appellant said he was only checking up on them. She told the Court that she slept and could not recall what happened as when she woke up in the morning she was naked and with blood on the sheets. She told the Court that the Appellant told her not to share with anyone what had happened and that is she dared to he would cut off her head. She told the Court that when it happened the 2nd time he also warned her about telling anyone. During the KCPE period, her mother came to her school to bring her lunch and she noticed she was walking funny and on inquiry she told her mother what the Appellant had done to her. She was taken to the hospital and they found out she was pregnant. She told the Court that her father was responsible for the pregnancy. She insisted that she only had sexual intercourse with her father and that she has no boyfriend. On cross-examination, she identified the Appellant in Court via video link as her father and that she delivered her baby.
6. PW2 Rukia Rehema Ramadhan testified that she the mother of PW1 and that on 22nd February 2021, while the children were doing their examinations she decided to arrange and take lunch to PW1 in school. On arriving she found PW1 crying and on inquiry she told her what the Appellant had been doing to her and the headteacher who heard a bit of the tale advised her to report the incident at the police station wherein they were advised to visit a hospital. She told the Court that PW1 told her that it was the 2nd time the Accused person had hurt PW2 as the first time PW1 saw light and her father was leaving the room. She told the Court that PW1 is 15 years old. On cross-examination, she told the Court that the Appellant, pointing at the screen, is her husband and that he was very violent that they had to involve the Chief in their issues. On re-examination, she told the Court that she reported the Appellant to the police but would forgive him before the issue got to Court.
7. R.Y, testified as PW3 after being found able to give sworn testimony following a voir dire examination. He testified that he is 9 years old and that his father is the Appellant herein and his sister is PW1. According to him, ON 21ST March 2021, at night, while he was home asleep he heard the Appellant waking up PW1 telling her to shower. PW1 responded that it was midnight and that she could not shower then he heard “pa! pa! pa!”. He assumed that the Appellant was slapping PW1 and then he heard the door open to the outside corridor and they stepped out. He told the Court that he went back to sleep and could not tell what happened after. He told the Court that when he woke up the next day, he did not find PW1. On cross-examination, he told the Court that she knows that pw1 lives at a children’s home.
8. PW4 Dr. Wena Wanjala testified that he was in Court to produced a P3 form filled on 23rd March 2021 for PW1. On examination of PW1 he established that there was penile penetration or penetration using blunt injury and that PW1 was pregnant, approximately 2 moths gone. He observed vaginal lacerations in internal vaginal well. He produced the in Court the Outpatient card, P3 form and Laboratory Report as PEXH.2,3 &4 respectively. On cross-examination, he told the Court that he was producing evidence on behalf of his colleague and did not meet the parties personally.
9. PW5 No. 51923 Sergent Joan Namwalo testified that she is attached to Bungoma, PS child desk and that she is the investigating officer herein. According to her, she received a complainant from PW1 aged 14 years old who stated that the Appellant, her father, on 22nd March 2021 forcefully removed her clothes, bathed her, slapped her and defiled her on his matrimonial bed. She told the Court that PW1 noted that he threatened to kill her with a panga that was th the bedside if she dared to scream. It was her testimony that they established from PW1 that this was the 2nd time the Appellant defiled her as he did it before in January 2021 on a date she could not remember. She produced PW1’s birth certificate in Court indicating she was 14 years old at the time of the horrific incident. She proceeded to summon the Appellant at the Police Station and subsequently arrested him. On cross-examination, she told the Court that the Appellant was arrested 5 days after the incident and that a colleague assisted her in recording witness statements but she recorded the witness statements of PW1 and PW3.
10. In his defence, the Appellant herein DW1, in a sworn statement, testified that he did not commit the offence and that the complainant herein is his daughter.
11. DW2 Ramadhan Mambo Mbaruk testified that he knows both the Appellant and complainant herein. According to him, the Appellant herein is his son and that he noticed that the complainant had started bad manners. On cross-examination, he told the Court that he saw PW1 with boys but never told her father
12. DW3 Ruben Ramadhan Katoto testified that PW1 herein is his cousin and the Appellant is his uncle. He told the Court that on 21st March 2021, he was at his mum’s house and that as they slept in one room he locked the door himself and that nothing happened between Appellant and PW1. On cross-examination, he told the Court that he was living with the PW1 as that he saw the Appellant and his wife quarrel severally. He told the Court that there was no physical violence.
13. The appeal was canvassed vide written submissions. Both parties note that they complied with the Court record but the record does only indicate that the Respondent filed their written submissions.
14. Having considered the grounds of appeal, the record and the respective submissions of the Respondent, I consider the issues in this appeal to be whether the offence of incest was proved against the Appellant beyond reasonable doubt.
15. Section 20(1) of the Sexual Offences Act 2006, creates the offence of incest by male persons in these terms -
“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.”
16. The ingredients of the offence of incest are the relationship between the parties and; an indecent act or penetration.
17. On the relationship between the Appellant and the complainant, Section 20 (1) of the Sexual Offences Act (SOA) outlines relationships that are considered incestuous and includes between a father and a daughter. In the present case, the relationship between PW1 and the Appellant is not in dispute. PW1 who is the complainant claimed that the Appellant was her father while the Appellant admitted that she was his biological daughter. Their relationship therefore was one within the prohibited degree of consanguinity.
18. On the element of penetration, it is trite that Courts mainly rely on the evidence of the complainant corroborated by medical evidence to prove penetration. See Dominic Kibet Mwareng vs. Republic [2013] eKLR.
19. In this case, I have already reproduced the complainant’s (PW1) evidence in which she told the court how her father first defiled her in November 2020 when she was around 14 years old of age and repeatedly defiled her on various occasions and that she eventually got pregnant but lost the child after birth. It is evident from the evidence of PW5 that the first time the Appellant defiled PW1 was between November 2020 and January 2021, as PW1 was not sure about the dates.
20. The medical evidence was adduced by PW4, the doctor. He produced the complainant’s P3 form (PEXH 3) which indicated there were vaginal lacerations in internal vaginal well, vaginal bleeding/discharge of blood in the vagina, penile penetration and the laboratory tests confirmed that she was approximately two months pregnant. The medical evidence corroborated PW1’s testimony that she was defiled and as a result she got pregnant. I find that penetration was conclusively proved.
21. The other issue for determination is whether the Appellant is the one who penetrated the complainant. The Appellant denied having sexual relations with the complainant and went on to call witnesses who attacked the character of the complainant with DW2 stating that he saw her with boys by the roadside. He also faulted the prosecution’s failure to conduct a DNA test under Section 36 of the Sexual Offences Act linking him to the offence.
22. There are clear guiding principles upon which the Court must analyse evidence of identification. As a rule, the best evidence of identification is that of recognition. See Francis Muchiri Joseph – V- Republic [2014] eKLR.
23. The physical identification of the Appellant is not in doubt as he was the father of the complainant. The only issue is whether he committed incest with the complainant. In this respect, he claimed that DNA was not done to establish the Prosecution’s case.
24. It is well established principle of law that a DNA test is not necessary to establish the offence of defilement or rape. In AML v Republic [2012] eKLR the Court of Appeal succinctly held that: -
“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.”
25. 33. Further, the Court in the case of Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) affirmed the decision and stated that: -
“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”
26. In addition, Section 36 of the Sexual Offences Act is not mandatory as it is couched in permissive terms. Faced with a similar argument, in Williamson Sowa Mbwanga v Republic [2016] eKLR, the Court of Appeal pronounced itself thus:
“...it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See TWEHANGANE ALFRED V. UGANDA, CR. APP. NO. 139 OF 2001).”
It is partly for this reason that Section 36(1) of the Sexual Offences Act is couched in permissive rather than mandatory terms, allowing the Court, if it deems it necessary for purposes of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific, or DNA testing.”
27. I am guided by the above authority to find that it was not necessary in this case for the Court to order a DNA test as the same was not necessary to prove penetration. The Appellant’s contention in this regard therefore fails.
28. In addition, it is trite courts can convict on the sole evidence of a victim under section 124 of the Evidence Act as long as the court is convinced the victim is telling the truth and records reasons for such belief. In Arthur Mshila Manga v Republic, Criminal Appeal No. 24 of 2014 [2016] eKLR, the court of appeal held that:-
“It is trite that under the proviso to section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of a sexual offence alone. (See MOHAMED V. REPUBLIC [2008] KLR (G&F), 1175 and JACOB ODHIAMBO OMUOMBO V. REPUBLIC (supra). However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.”
29. In the present case, the trial magistrate in his judgement believed that the complainant was telling the truth. He found that complainant had no motive in telling lies and that her credibility and that of her witnesses were beyond doubt. I have looked at the record; the complainant was clear in her testimony as to what happened. She testified that she did not inform anyone because she had been threatened by the Appellant who had assaulted her and her mother previously. The complainant was also steadfast during cross-examination by the Appellant and was not shaken. There was no motive against the Appellant. I find, as the trial Court did, that the complainant was telling the truth and that the Appellant committed the offence.
30. I have looked at the defence put up by the Appellant. The defence that the complainant had been seen with boys was not put to her during cross-examination to test its credibility. I must also add that even if the Appellant’s claim was true, it would not give him the licence to have sexual relations with his daughter. Having considered the Appellant’s defence, I find that the same was an afterthought and did not cast any doubt on the prosecution case.
31. It is my conclusion therefore that having evaluated the evidence that the case against the Appellant was proved beyond reasonable doubt. I uphold the conviction.
32. Section 20(1) of the Sexual Offences Act provides that the minimum sentence for the offence of incest is 10 years imprisonment, while the maximum sentence is life imprisonment where the victim is aged below eighteen years. I therefore confirm that the life imprisonment sentence meted out to the Appellant was lawful. In this Court, the Appellant prayed for mercy on the account that their family used to live together.
33. At the sentence hearing in the lower court, the Prosecution stated that the Appellant was a 1st Offender and that the Court should take into consideration the violent behavior of the Appellant towards the victim and her mother.
34. The sentence of life imprisonment is in accordance with the proviso to Section 20 of the Sexual Offences Act, 2006 and the complainant was below the age of eighteen. She was fourteen. I confirm it.
35. Having failed on grounds of appeal, and sentence as well, I find and hold that the appeal has no leg or limb to stand upon. I dismiss it. I confirm both the conviction and sentence.
36. It is so ordered.
Dated and delivered at Bungoma this 27th day of June 2025.
M.S.Shariff
Judge
In the presence of:
APPELLANT PRESENT VIRTUALLY
MS KIBET FOR RESPONDENT
PETER COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E039 OF 2022
YUSUF MABRUK RAMADHAN………………………………..APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
JUDGEMENT
1. This as an appeal against the Appellant’s conviction and sentence of life imprisonment for incest under Section 20(1) of the Sexual Offences Act No.3 of 2006. The particulars of the Offence were that the appellant on diverse dates between the 1st day of January 2021 and 22nd day of March 2021 at Sio Sub-Location in Musikoma Location within Bungoma County being a male person, caused his penis to penetrate the vagina of H.N.Y a female aged 14 years who was to his knowledge his daughter.
2. At trial, the Appellant pleaded NOT guilty and after hearing he was convicted and sentenced to life imprisonment.
3. The was aggrieved by the judgment of the trial court and he thus proffered the appeal herein which he premises on the following grounds:
a. That he pleaded not guilty to the said charges.
b. That the trial Magistrate erred in law and in fact in conducting proceedings that violated the right of the Appellant as per the provisions of the law.
c. That the trial Magistrate erred in law and fact by arriving at a decision while regarding extraneous factors in judgement making.
d. That the trial Magistrate erred in law and fact in failing to appreciate that the mother of the complainant in this matter had an intention to sue him to certify her aims in selling family plots
e. That the evidence of the clinical officer lacked support of the DNA tests to prove the Prosecution case.
f. That the trial Magistrate erred in law and fact in failing to put into consideration the matters of this nature required a DNA test as per the Sexual Offences Act No. 3 of 2006 laws of Kenya.
g. That the sentence imposed upon the Appellant is harsh and excess in the circumstances.
h. That he wishes to raise more grounds of mitigation in support of his appeal when the same comes up for hearing.
4. The role of this Court in its appellate jurisdiction is to review all the evidence and to make its own conclusions while being careful to note that it neither heard nor saw the witnesses as they testified wherefore it has the disadvantage of not gauging the demeanour of witnesses (See Okeno v R [1972] EA 32).
5. The brief facts are that HNY, testified as PW1 after being found able to give sworn testimony following a voir dire examination. She testified that she is 15 years old and that the Appellant herein is her father. According to her, on 22nd March 2021, at night she went to her grandmother’s house and his father was there. She proceeded to handle her self-care routine and went into the room where she slept with her brothers. She told the Court that as she was sleeping she heard the Appellant call her. She proceeded to see what he needed and he told her to proceed to take a shower. She told the Appellant that she normally showers in the morning but he insisted. When she declined, the Appellant forcibly took her hands a, slapped her and removed her clothes. The Appellant started to vigorously wash her and he touched her breast and removed her panty and began to touch her genitals. The Appellant later told her that she will be sleeping in his bed and he forcefully led her to where he slept while she was naked. She told the Court that the Appellant removed his trousers and short and took his penis and inserted it into her vagina. He threatened to kill her with a panga, which was on the bed, if she dared to scream. He told the Court that that was the second time he was doing that to her and that the first incident happened in November 2020 in her room. She told the Court that there was a discord between the Appellant and her mother that led to her mother seeking shelter at her sister’s place and that as she slept the Appellant came in with a torch, shinning its light on her face. She told the Court that the Appellant wondered why she was with her brothers in that room and the Appellant said he was only checking up on them. She told the Court that she slept and could not recall what happened as when she woke up in the morning she was naked and with blood on the sheets. She told the Court that the Appellant told her not to share with anyone what had happened and that is she dared to he would cut off her head. She told the Court that when it happened the 2nd time he also warned her about telling anyone. During the KCPE period, her mother came to her school to bring her lunch and she noticed she was walking funny and on inquiry she told her mother what the Appellant had done to her. She was taken to the hospital and they found out she was pregnant. She told the Court that her father was responsible for the pregnancy. She insisted that she only had sexual intercourse with her father and that she has no boyfriend. On cross-examination, she identified the Appellant in Court via video link as her father and that she delivered her baby.
6. PW2 Rukia Rehema Ramadhan testified that she the mother of PW1 and that on 22nd February 2021, while the children were doing their examinations she decided to arrange and take lunch to PW1 in school. On arriving she found PW1 crying and on inquiry she told her what the Appellant had been doing to her and the headteacher who heard a bit of the tale advised her to report the incident at the police station wherein they were advised to visit a hospital. She told the Court that PW1 told her that it was the 2nd time the Accused person had hurt PW2 as the first time PW1 saw light and her father was leaving the room. She told the Court that PW1 is 15 years old. On cross-examination, she told the Court that the Appellant, pointing at the screen, is her husband and that he was very violent that they had to involve the Chief in their issues. On re-examination, she told the Court that she reported the Appellant to the police but would forgive him before the issue got to Court.
7. R.Y, testified as PW3 after being found able to give sworn testimony following a voir dire examination. He testified that he is 9 years old and that his father is the Appellant herein and his sister is PW1. According to him, ON 21ST March 2021, at night, while he was home asleep he heard the Appellant waking up PW1 telling her to shower. PW1 responded that it was midnight and that she could not shower then he heard “pa! pa! pa!”. He assumed that the Appellant was slapping PW1 and then he heard the door open to the outside corridor and they stepped out. He told the Court that he went back to sleep and could not tell what happened after. He told the Court that when he woke up the next day, he did not find PW1. On cross-examination, he told the Court that she knows that pw1 lives at a children’s home.
8. PW4 Dr. Wena Wanjala testified that he was in Court to produced a P3 form filled on 23rd March 2021 for PW1. On examination of PW1 he established that there was penile penetration or penetration using blunt injury and that PW1 was pregnant, approximately 2 moths gone. He observed vaginal lacerations in internal vaginal well. He produced the in Court the Outpatient card, P3 form and Laboratory Report as PEXH.2,3 &4 respectively. On cross-examination, he told the Court that he was producing evidence on behalf of his colleague and did not meet the parties personally.
9. PW5 No. 51923 Sergent Joan Namwalo testified that she is attached to Bungoma, PS child desk and that she is the investigating officer herein. According to her, she received a complainant from PW1 aged 14 years old who stated that the Appellant, her father, on 22nd March 2021 forcefully removed her clothes, bathed her, slapped her and defiled her on his matrimonial bed. She told the Court that PW1 noted that he threatened to kill her with a panga that was th the bedside if she dared to scream. It was her testimony that they established from PW1 that this was the 2nd time the Appellant defiled her as he did it before in January 2021 on a date she could not remember. She produced PW1’s birth certificate in Court indicating she was 14 years old at the time of the horrific incident. She proceeded to summon the Appellant at the Police Station and subsequently arrested him. On cross-examination, she told the Court that the Appellant was arrested 5 days after the incident and that a colleague assisted her in recording witness statements but she recorded the witness statements of PW1 and PW3.
10. In his defence, the Appellant herein DW1, in a sworn statement, testified that he did not commit the offence and that the complainant herein is his daughter.
11. DW2 Ramadhan Mambo Mbaruk testified that he knows both the Appellant and complainant herein. According to him, the Appellant herein is his son and that he noticed that the complainant had started bad manners. On cross-examination, he told the Court that he saw PW1 with boys but never told her father
12. DW3 Ruben Ramadhan Katoto testified that PW1 herein is his cousin and the Appellant is his uncle. He told the Court that on 21st March 2021, he was at his mum’s house and that as they slept in one room he locked the door himself and that nothing happened between Appellant and PW1. On cross-examination, he told the Court that he was living with the PW1 as that he saw the Appellant and his wife quarrel severally. He told the Court that there was no physical violence.
13. The appeal was canvassed vide written submissions. Both parties note that they complied with the Court record but the record does only indicate that the Respondent filed their written submissions.
14. Having considered the grounds of appeal, the record and the respective submissions of the Respondent, I consider the issues in this appeal to be whether the offence of incest was proved against the Appellant beyond reasonable doubt.
15. Section 20(1) of the Sexual Offences Act 2006, creates the offence of incest by male persons in these terms -
“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.”
16. The ingredients of the offence of incest are the relationship between the parties and; an indecent act or penetration.
17. On the relationship between the Appellant and the complainant, Section 20 (1) of the Sexual Offences Act (SOA) outlines relationships that are considered incestuous and includes between a father and a daughter. In the present case, the relationship between PW1 and the Appellant is not in dispute. PW1 who is the complainant claimed that the Appellant was her father while the Appellant admitted that she was his biological daughter. Their relationship therefore was one within the prohibited degree of consanguinity.
18. On the element of penetration, it is trite that Courts mainly rely on the evidence of the complainant corroborated by medical evidence to prove penetration. See Dominic Kibet Mwareng vs. Republic [2013] eKLR.
19. In this case, I have already reproduced the complainant’s (PW1) evidence in which she told the court how her father first defiled her in November 2020 when she was around 14 years old of age and repeatedly defiled her on various occasions and that she eventually got pregnant but lost the child after birth. It is evident from the evidence of PW5 that the first time the Appellant defiled PW1 was between November 2020 and January 2021, as PW1 was not sure about the dates.
20. The medical evidence was adduced by PW4, the doctor. He produced the complainant’s P3 form (PEXH 3) which indicated there were vaginal lacerations in internal vaginal well, vaginal bleeding/discharge of blood in the vagina, penile penetration and the laboratory tests confirmed that she was approximately two months pregnant. The medical evidence corroborated PW1’s testimony that she was defiled and as a result she got pregnant. I find that penetration was conclusively proved.
21. The other issue for determination is whether the Appellant is the one who penetrated the complainant. The Appellant denied having sexual relations with the complainant and went on to call witnesses who attacked the character of the complainant with DW2 stating that he saw her with boys by the roadside. He also faulted the prosecution’s failure to conduct a DNA test under Section 36 of the Sexual Offences Act linking him to the offence.
22. There are clear guiding principles upon which the Court must analyse evidence of identification. As a rule, the best evidence of identification is that of recognition. See Francis Muchiri Joseph – V- Republic [2014] eKLR.
23. The physical identification of the Appellant is not in doubt as he was the father of the complainant. The only issue is whether he committed incest with the complainant. In this respect, he claimed that DNA was not done to establish the Prosecution’s case.
24. It is well established principle of law that a DNA test is not necessary to establish the offence of defilement or rape. In AML v Republic [2012] eKLR the Court of Appeal succinctly held that: -
“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.”
25. 33. Further, the Court in the case of Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) affirmed the decision and stated that: -
“… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.”
26. In addition, Section 36 of the Sexual Offences Act is not mandatory as it is couched in permissive terms. Faced with a similar argument, in Williamson Sowa Mbwanga v Republic [2016] eKLR, the Court of Appeal pronounced itself thus:
“...it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See TWEHANGANE ALFRED V. UGANDA, CR. APP. NO. 139 OF 2001).”
It is partly for this reason that Section 36(1) of the Sexual Offences Act is couched in permissive rather than mandatory terms, allowing the Court, if it deems it necessary for purposes of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific, or DNA testing.”
27. I am guided by the above authority to find that it was not necessary in this case for the Court to order a DNA test as the same was not necessary to prove penetration. The Appellant’s contention in this regard therefore fails.
28. In addition, it is trite courts can convict on the sole evidence of a victim under section 124 of the Evidence Act as long as the court is convinced the victim is telling the truth and records reasons for such belief. In Arthur Mshila Manga v Republic, Criminal Appeal No. 24 of 2014 [2016] eKLR, the court of appeal held that:-
“It is trite that under the proviso to section 124 of the Evidence Act, a trial court can convict on the evidence of the victim of a sexual offence alone. (See MOHAMED V. REPUBLIC [2008] KLR (G&F), 1175 and JACOB ODHIAMBO OMUOMBO V. REPUBLIC (supra). However, before the court can do so, it first must believe or be satisfied that the victim is telling the truth and secondly it must record the reasons for such belief.”
29. In the present case, the trial magistrate in his judgement believed that the complainant was telling the truth. He found that complainant had no motive in telling lies and that her credibility and that of her witnesses were beyond doubt. I have looked at the record; the complainant was clear in her testimony as to what happened. She testified that she did not inform anyone because she had been threatened by the Appellant who had assaulted her and her mother previously. The complainant was also steadfast during cross-examination by the Appellant and was not shaken. There was no motive against the Appellant. I find, as the trial Court did, that the complainant was telling the truth and that the Appellant committed the offence.
30. I have looked at the defence put up by the Appellant. The defence that the complainant had been seen with boys was not put to her during cross-examination to test its credibility. I must also add that even if the Appellant’s claim was true, it would not give him the licence to have sexual relations with his daughter. Having considered the Appellant’s defence, I find that the same was an afterthought and did not cast any doubt on the prosecution case.
31. It is my conclusion therefore that having evaluated the evidence that the case against the Appellant was proved beyond reasonable doubt. I uphold the conviction.
32. Section 20(1) of the Sexual Offences Act provides that the minimum sentence for the offence of incest is 10 years imprisonment, while the maximum sentence is life imprisonment where the victim is aged below eighteen years. I therefore confirm that the life imprisonment sentence meted out to the Appellant was lawful. In this Court, the Appellant prayed for mercy on the account that their family used to live together.
33. At the sentence hearing in the lower court, the Prosecution stated that the Appellant was a 1st Offender and that the Court should take into consideration the violent behavior of the Appellant towards the victim and her mother.
34. The sentence of life imprisonment is in accordance with the proviso to Section 20 of the Sexual Offences Act, 2006 and the complainant was below the age of eighteen. She was fourteen. I confirm it.
35. Having failed on grounds of appeal, and sentence as well, I find and hold that the appeal has no leg or limb to stand upon. I dismiss it. I confirm both the conviction and sentence.
36. It is so ordered.
Dated and delivered at Bungoma this 27th day of June 2025.
M.S.Shariff
Judge
In the presence of:
APPELLANT PRESENT VIRTUALLY
MS KIBET FOR RESPONDENT
PETER COURT ASSISTANT