Akk v Republic
The bottom line
#Kenya's Court of Appeal confirmed a step-father's incest conviction but cut his life sentence to 30 years, showing courts can now depart from mandatory sentences.
What this practically means
#Executive summary
#Key legal issues
#Proper taking of plea
The plea was properly taken; the charge was read and explained in Kiswahili, a language the appellant understood, and he pleaded not guilty.
The record showed the appellant appeared before the Principal Magistrate on 28th October 2013, the charge was read over and explained in Kiswahili, and he responded 'Si kweli' to both counts. The alleged defect in plea-taking had also not been raised in the first appeal. The ground was accordingly dismissed.
Step-father/step-daughter relationship and incest
Incest was established; a step-father is prohibited by Section 22 from sexual relations with his step-daughter.
Section 20 defines who may commit incest and Section 22 supplies the test of relationship. Evidence established the appellant was PW2's step-father living with her and her mother, and PW2 regarded him as her father. Following LOA v Republic, the relationship was prohibited and the act incestuous.
Sentence
The life sentence was set aside and substituted with thirty (30) years imprisonment from the date of conviction.
Following Muruatetu, mandatory minimum sentences are unconstitutional and courts must consider the circumstances of each case. The appellant was a first offender who had been in custody since 2013, was the sole breadwinner of his family, and the offence was aggravated by repetition and use of a panga. Interference with sentence was warranted.
Legal principles established
#- On a second appeal the Court of Appeal is confined to issues of law and is bound by concurrent findings of fact of the courts below unless those findings are based on no evidence.
- A sexual relationship between a step-father and step-daughter falls within the prohibited relationships under Section 22 of the Sexual Offences Act and constitutes incest.
- Following Muruatetu, courts may depart from mandatory minimum sentences and tailor sentence to the circumstances of the particular case.
Court orders
#- 1.Appeal against conviction dismissed
- 2.Sentence of life imprisonment set aside and substituted with thirty (30) years imprisonment from the date of conviction
- On appeal from
- High Court of Kenya at Malindi
- Jurisdiction invoked
- Second appeal under Section 361(1)(a) Criminal Procedure Code (issues of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akk v Republic", Case Analysis (2021). Criminal Appeal (unnumbered on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/15/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.