REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BOMET CRIMINAL APPEAL NO. 8 OF 2016 G K K …………..……..…….……........................APPELLANT -VERSUSREPUBLIC……………………………….........RESPONDENT (Being an appeal from the original conviction and sentence in Criminal Case No. 3 OF 2015 Bomet SPM’s Court Hon Kiage - RM) JUDGMENT The appellant was convicted and sentenced to twenty years imprisonment for the offence of incest Contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars being that on the 27th day of December, within Bomet County he intentionally touched the buttocks/anus/breast/vagina of K C who was to his knowledge his sister. This is the first appellate court. It has a duty to evaluate and reconsider the evidence on record so as to arrive at its own conclusions but bearing in mind that it did not have the opportunity of observing the demeanour of the witnesses. The prosecution in this case called six witnesses in support of their case. The defence called one. The facts for the prosecution are that on the 27 th day of December 2014 the complainants mother had gone to visit a friend and spend the night there. She had left behind her children who included C C (PW1) and C (PW2) among others. The Accused who was their elder brother arrived home at around 4.00 a.m. and demanded that C C do proceed to warm his food in the kitchen. It was while she was warming food that he ordered her to remove her cloths. He pulled down her skirt and pants, took off his trouser removed his penis and inserted it into her vagina. He proceeded to have sexual intercourse with her and warned her against reporting the matter to their parents. Afterwards he went away. The following morning the complainant reported to her elder sister and her mother of what had transpired, and the matter was reported to police and she was taken to hospital for examination and treatment. The Accused in his unsworn statement alleges that his mother bore a grudge against him on account of a land dispute. That the mother wanted them to sell their ancestral land whereas he was of a different opinion and that the case against him was manufactured with an eye of seeing him incarcerated behind bars so as to have an opportunity to sell the land in question. Age In the present case age is not an issue as it’s not in dispute. The complainant testified to have been aged 13 years at the time of the incident. The mother of the complainant (PW3) did testify that her daughter was aged 13 years at the time of the incident. The doctor who examined the complainant found her to be under eighteen years old. Incest is defined under Section 20 (1) of the Sexual Offences Act thus:- Any 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 its alleged that 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.
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The appellant does not deny that the complainant is his sister. The complainant did testify to the effect that the Accused is her brother. This is corroborated by her mother (PW3) and her sister(PW2). The complainant was examined by a clinical officer (PW4). He found that she had no bruises on the vagina walls but the hymen was broken with a whitish foul smelling discharge. His examination was done three days after the incident. He was of the opinion that the bruises could have healed within the three days. The Doctor’s evidence corroborates that of the complainant to the effect that there was penetration. However, it is noted that the Accused was sentenced to 20 years imprisonment with the trial magistrate observing that according to Section 20(1) of the Sexual Offences Act he should have been sentenced to life imprisonment. This section in its proviso stipulates that “provided that if it is alleged that in the information or charge, that the female person is under the age of eighteen years-…. The charge which was before the court did not allege that the female was under the age of eighteen years. The sentence of 20 years was not called for. The proper sentence was that of ten years imprisonment. As to the conviction itself, I am satisfied that there was overwhelming evidence against the appellant adduced by the prosecution. The conviction was proper and lawful. The sentence of 20 years is hereby reduced to ten years as provided for in law. Appellant will serve ten years from the time of his conviction. The appeal succeeds to that extend only. Judgment delivered dated and signed this 4th day of October 2017 in the presence of learned counsel for the prosecution Mr. Barasa, Appellant present. Court Assistant Rotich M. MUYA JUDGE 4/10/17
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