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MagistrateAllowedNyahururu Criminal Case (defence of Incest, main count) - exact case number not stated in judgment· [2017] KEMC 127 (KLR)

Republic v JM (Sexual Offence 20 of 2016) [2017] KEMC 127 (KLR)

Principal Magistrate's Court at Nyahururu
10 January 2017
ALALOYCE-PETER-NDEGE
1,413 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyahururu court convicted a father of incest, ruling that date discrepancies in the charge and delayed reporting do not defeat sexual offence prosecutions in Kenya.

What this practically means

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Executive summary

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In a first-instance criminal trial before the Principal Magistrate's Court at Nyahururu, the defendant, a farmer and herdsman, was charged with Incest contrary to section 20(1) of the Sexual Offences Act, with an alternative count of Committing an Indecent Act with a Child contrary to section 11(1). The complainant was his eight-year-old daughter. The prosecution alleged that between 2014 and September 2014, the defendant, having separated from the child's mother, repeatedly waylaid the child from school, enticed her with snacks and defiled her at his house. On the night of 11.09.2014 the mother caught the defendant in bed with the child and noted whitish discharge. The defendant went underground, and was arrested on 22.02.2016 after the report to Mairo-inya Police Station. Medical examination by PW3 confirmed a broken hymen and genital tract infection. The only issues were whether penetration was proved beyond reasonable doubt and whether the variance in dates and the delay in prosecution were fatal. The court held that the victim's unchallenged testimony, corroborated by the mother and medical evidence, proved the charge; that the variance in dates was immaterial under section 214(2) of the Criminal Procedure Code; and that no limitation law barred the prosecution. The defendant was convicted of Incest in the main count pursuant to section 215 CPC, and the court directed that sentencing evidence be received. He had been in remand throughout the trial, having failed to raise a Kshs. 500,000 bond.

Key legal issues

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01

Whether the prosecution proved the offence of incest beyond reasonable doubt

Holding

Yes; the victim's unchallenged testimony, corroborated by the mother who caught the defendant in the act and by medical evidence, proved incest contrary to section 20(1) SOA

Reasoning

The victim testified that the defendant repeatedly defiled her after enticing her with snacks. The mother caught the defendant in bed with the victim at night and noted whitish discharge. Medical evidence showed a broken hymen and genital infection. The defendant offered only that his faith could not permit the act, which the court rejected.

p. 3
02

Materiality of the variance in dates between the charge and the evidence

Holding

The variance in dates was immaterial under section 214(2) of the Criminal Procedure Code and did not affect the substance of the charges

Reasoning

Section 214(2) provides that variance as to time is not material provided the proceedings were instituted within any time limited by law. Since no limitation statute applies to these sexual offences, the two-year gap between the acts of September 2014 and the charge could not vitiate the prosecution.

p. 3

Legal principles established

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  • The burden of proving a criminal charge lies with the prosecution and the standard of proof is beyond reasonable doubt
  • Variance between the charge and the evidence as to the time of the alleged offence is not material where the proceedings were instituted within any time limited by law
  • There is no limitation of time for the offences of incest and committing an indecent act with a child under the Sexual Offences Act

Court orders

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  1. 1.Conviction of the defendant of the offence of Incest contrary to section 20(1) of the Sexual Offences Act as charged in the main count, pursuant to section 215 of the Criminal Procedure Code
  2. 2.Direction to receive evidence and material relevant to sentencing

Authorities

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Legislation

  • Sexual Offences Actsection 20(1)
  • Sexual Offences Actsection 11(1)
  • Criminal Procedure Codesection 214(2)
  • Criminal Procedure Codesection 215
  • Constitution of Kenya, 2010Article 157(6)

Cases cited (1)

  • Elizabeth Waithiegeni Gatimu Vrs Republic
    [2015] eKLR
Jurisdiction invoked
Criminal jurisdiction under the Sexual Offences Act No. 3 of 2006 and the Criminal Procedure Code; prosecution powers exercised by the DPP by virtue of Article 157(6) of the Constitution

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, "Republic v JM (Sexual Offence 20 of 2016) [2017] KEMC 127 (KLR)", Case Analysis (2017). Nyahururu Criminal Case (defence of Incest, main count) - exact case number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/127/eng@2017-01-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.