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Court of AppealPartially AllowedCriminal Appeal (unnumbered on record)· [2021] KECA 15 (KLR)

Akk v Republic

Court of Appeal of Kenya
23 September 2021
1,812 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a second appeal by AKK against conviction and sentence for incest contrary to Section 20(1) of the Sexual Offences Act, following dismissal of his first appeal by the High Court at Malindi. The trial court had convicted him and sentenced him to life imprisonment on 11th May 2015. As a second appeal, the Court's mandate was confined by Section 361(1)(a) of the Criminal Procedure Code to issues of law, with concurrent findings of fact binding. The Court identified two issues of law: whether the plea was properly taken, and sentence. On the plea, the Court found the charge had been read and explained in Kiswahili, a language the appellant understood, and that the issue had not been raised on first appeal; the ground was dismissed. On the substance, the Court applied LOA v Republic, holding that a step-father is prohibited by Section 22 of the Sexual Offences Act from having sexual relations with his step-daughter, so the offence of incest was established; the appeal against conviction accordingly failed. On sentence, the Court invoked Francis Kariako Muruatetu, noting that mandatory minimum sentences had been declared unconstitutional and courts were freed to consider the circumstances of each case. Considering the appellant's mitigation as a first offender, his prolonged custody since 2013 and his role as sole breadwinner, but also the aggravating features of repeated defilement under threats of death and arming with a panga, the Court set aside the life sentence and substituted thirty (30) years imprisonment from the date of conviction. No costs order was made.

Key legal issues

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01

Proper taking of plea

Holding

The plea was properly taken; the charge was read and explained in Kiswahili, a language the appellant understood, and he pleaded not guilty.

Reasoning

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.

p. 3
02

Step-father/step-daughter relationship and incest

Holding

Incest was established; a step-father is prohibited by Section 22 from sexual relations with his step-daughter.

Reasoning

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.

p. 3
03

Sentence

Holding

The life sentence was set aside and substituted with thirty (30) years imprisonment from the date of conviction.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal against conviction dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.