REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BOMET CRIMINAL APPEAL NO.66 OF 2015 R C............................................................................APPELLANT -VERSUSREPUBLIC...........................................................RESPONDENT (Being the appeal from the original conviction and sentence in Criminal Case No.899 of 2011 SRM’s Court – Sotik - Hon Kassam RM) JUDGMENT The appellant herein was convicted and sentenced to life imprisonment for the offence of incest C/S 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 5 th day of August 2011 at [particulars withheld] village in Bureti District being a male person caused his penis to penetrate the vagina of S.C a female person who was to his knowledge his daughter. The prosecution in this case called 4 witnesses in support of their case whereas the defence called one. This being the first appellate court, it has a duty to re-evaluate and re-consider the evidence on record so as to arrive at its own conclusions but bearing in mind that unlike the trial court, it did not have the opportunity to appreciate the demeanour of the witnesses. Brief facts The complainant in her evidence in chief testified that she was nine years old at the time of the alleged defilement incident that took place on a date she could not recall. She further told the court that the appellant was her father and that she could recall one night while she was asleep he woke her up and forced himself on top of her and that he inserted his penis into her female organ. The following morning she reported the matter to her mother. PW2 (CC) is the complainant’s mother. She testified that on 5/8/2011 she travelled to her maternal home for a burial ceremony leaving her children with the father. She returned the following day when her daughter reported to her that her father had defiled her. She went and reported the matter to the police. The Doctor who examined the complainant found no injuries or discharge from genitalia. He found no clinical signs of penetration. Upon cross-examination by the Accused he told the court that there are no findings to prove penetration. Its apparent from the evidence of the complainant mother that she was not in good terms with her husband and that’s why she had deserted the matrimonial home. In such circumstances its very tempting for a child to be used to punish the other spouse. In the present case there was no evidence of penetration. No voire dire examination was conducted on the complainant who was allegedly aged 9 years. There was no age assessment of the complainant. Clearly there was no evidence to put the Accused on his defence. The prosecution did not prove this case beyond reasonable doubt. The conviction was very unsafe and the sentence unlawful. The appeal has merit and it succeeds. Both the conviction and sentence are quashed and set aside respectively. The appellant is set at liberty unless otherwise lawfully held. Judgment delivered dated and signed in open court this 6 th day of October 2017 in the presence of learned counsel for the prosecution Mr. Barasa. The appellant present. Court assistant Rotich. M. MUYA JUDGE 6/10/17
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