Dgn v Republic

4. The appellant was arraigned before the trial court on 30th October 2014 in the Nakuru Chief Magistrate’s Court in Criminal Case No. 240 of 2014 to answer to the charges preferred against him. He entered a plea of ‘not guilty’ to all charges. After a full trial, the appellant was convicted of the offence of incest. He was thereafter sentenced to life imprisonment. 5. Aggrieved by those findings, the appellate appealed to the Nakuru High Court in Criminal Appeal No. 104 of 2016. Mativo, J. (as he then was), in his judgment delivered on 19th September 2019, found that the appeal lacked merit. It was dismissed on conviction and sentence. 6. The appellant now seeks the audience of this Court on a second appeal. He filed his notice of appeal dated 3rd October 2019. He also filed his undated memorandum and grounds of appeal, coupled with supplementary grounds of appeal that raised a combined total of 9 grounds disputing the findings of the High Court. We have taken the liberty to summarize those grounds as follows: that the prosecution failed to prove the ingredients to the offence of incest to the required standard of proof; that the conviction was unsafe as the prosecution’s evidence was riddled with inconsistencies, inadequacies and was incredible; that his cogent defence was ignored; and that the sentence was harsh and excessive, failing to take into account his mitigation and section 333 (2) of the Criminal Procedure Code. For those reasons, the appellant prayed that his appeal be allowed by quashing the conviction and setting aside the sentence so that he is set at liberty. In the alternative, he prayed that his sentence be reconsidered. 7. The appeal was heard on the basis of the parties’ written submissions on 16th March 2026. The appellant represented himself while learned counsel, Senior Assistant Director of Public Prosecutions Mr. Omutelema, appeared for the respondent. During the hearing of the appeal, the appellant abandoned his appeal on conviction. He relied on his undated written submissions to urge this Court to set aside the sentence of life imprisonment and give him a determinate sentence so that he is reintegrated back to the society. In support of that prayer, the appellant submitted that he was a first offender, regretted his actions and had been rehabilitated. Further, he was 52 years old and of no danger to the society. Finally, he submitted that the complainant had since forgiven him. He cited several decisions to persuade this Court to allow his appeal on sentence. 8. The respondent opposed the appeal. Mr. Omutelema filed written submissions, a list and bundle of authorities and a case digest, all dated 2nd September 2024. He submitted that the appeal on conviction was unsubstantiated as the prosecution discharged its burden of proof, being beyond reasonable doubt, to establish that the appellant committed the offence of incest. Turning to the sentence meted out, counsel submitted that the sentence was lawful. In any event, aggravating circumstances justified it. For those reasons, Mr. Omutelema prayed that the appeal be dismissed. 9. This is an appeal against the sentence only. Our duty was spelt out by this Court in the case of Wanjema vs. Republic (1971) EA 493 in the following words: “ [The] Appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on wrong principle or the sentence is manifestly excessive in the circumstances of the case.” 10. The appellant was condemned to serve a life sentence upon conviction. Those findings were upheld by the first appellant court. During his mitigation, the appellant was treated as a first offender. He had nothing to say. The first appellate court found that the sentence of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1063/eng@2026-05-29 2

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life imprisonment is provided in the proviso to section 20 (1) of the Sexual Offences Act which provides as follows: “ 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.” 11. From the evidence established at the trial court, the child survivor of the offence was aged between 11 and 12 years old, falling below eighteen years of age. The sentence provided in the section where a male person is convicted of incest with a female person below eighteen years of age is lawful and mandatory. It does not give a court discretion to consider any mitigating facts. As we observed at the beginning of this judgment, the Supreme Court has clarified in Republic vs. Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (supra) and Republic vs. Manyeso (supra) that mandatory and minimum sentences set out in the Sexual Offences Act are lawful. 12. Accordingly, we are unable to interfere with the findings on sentence. The appeal is dismissed. DATED AND DELIVERED AT NAKURU THIS 29TH DAY OF MAY, 2026. MUMBI NGUGI ................................ JUDGE OF APPEAL M. GACHOKA C.Arb, FCIArb. ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed Deputy Registrar https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1063/eng@2026-05-29 3

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