Skk v Republic

4. The Appellant being dissatisfied by the conviction and sentence filed this Petition of Appeal on 21st June 23. The grounds raised were that: a. The learned Trial Magistrate erred in law and fact by failing to consider that the evidence adduced of the doctor was not enough to base for conviction. b. That the learned trial magistrate erred in both law and fact that the first report of the complainant was doubtful according to the other witnesses’ testimonies. c. The learned Trial Magistrate erred in law and fact convicting him based on witnesses’ evidence which was fully contradictory. d. That the learned Magistrate erred in law and fact in failing to give due consideration to plausible defense. e. That the Learned Magistrate erred in law and in fact by relying on the prosecution evidence that was riddled with contractions and discrepancies leading to selective judgement. The trial The prosecution’s case 5. The Prosecution called 5 witnesses. PW1, Judith Cherop testified that in January, 2022 she asked the minor why she had not noted her menses and she said she was no longer receiving them. She then told that that when she had gone to buy Christmas items the dad called her in bed, chased the other children outside and slept with her. it was not the only time and that whenever she went for Friday night vigils, he would sleep with her. 6. It was her testimony that on 15th March, 2022 she went and reported to the police. The police took them to Kitengela Women Hospital the following day where R.N was examined and found to be expectant. The accused person was arrested the same day while at work. She had seen her vomiting at the end of February, went to the chemist and bought a pregnancy kit and after conducting a urine test on her she was pregnant. She had missed her periods in January. She told her that whenever she went for Keshas on Fridays, her father slept with her. They would have sex on their matrimonial bed. Initially RN was talkative then suddenly she became quiet and reserved. The accused was RN’s stepfather whom they have 2 other children. The accused and RN had a close relationship and would spend time together which she thought was a father – daughter relationship. She suspected something was amiss and whenever she inquired from RN she would move away from the accused. According to RN she started sleeping with the accused in December 2021. The accused had also started creating issues that RN goes back to the rural home but she declined because she wanted RN to study. 7. She testified that she had a discussion with the accused when RN missed her period but he did not respond and when RN told her that the accused had slept with her she did not confront him instead went to report. 8. She further testified that her daughter was not engaged with men. She was in grade 2 going to 3 as she started school late. At the time when the accused slept with her they had not disagreed. RN did not tell her how many times she was defiled. She only told her that whenever she left, she would be defiled. 9. In Cross examination, she stated that the child came to their house when she was 10 years. That RN did not refuse to go to school. RN told her that the accused started sleeping with her in December 2021 at 3.00pm when she had gone to buy clothes. RN was vomiting and explained that she had taken https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 2

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cold tea. She is the one who suspected RN was pregnant and did a pregnancy test which confirmed the pregnancy. She did not beat RN so as to admit that she slept with the accused. She did not tell the accused because she feared he would run away as he had started creating disagreement insisting that she takes RN home. RN was the one who pointed out that the accused had defiled her. She had proof that RN was pregnant. 10. In re-examination she stated that when RN came late carrying fruits, she said she picked them from a friend’s place in the company of her cousins. She did not bring the child to the house with the intention of taking the accused to prison. She was the one who decide to report the accused for impregnating RN. She believed that the accused defiled RN because RN was not going out. 11. PW2, CPL Christine Mulongo, testified that she was the investigating officer. On 15/3/22 at 6.50 pm a report was made by PW1 that RN had been defiled by her father since January 2021. The next morning, she took RN to Nairobi Women’s Hospital Kitengela where she was treated and found to be expectant. A P3 form was filled and they went back to the station where she recorded their statement. The complainant is aged 13 years as ascertained using her immunization card. The minor explained that whenever her mum went to the market or night vigil the father would go back to the house and defile her. According the girl the defilement began in January 2021. No differences between the mother and the father of the minor were disclosed. The father and the minor had a close relationship and the mother only noticed that the minor’s behavior had changed as she had become withdrawn, she later noticed that the minor was vomiting and when she followed up with the daughter, she told her about the defilement. She asked the girl if it was not the neighbor who defiled her and she was positive it was the father. 12. On Cross examination, she stated that they reported in the evening of 15/3/22 and she did not know why the minor had refused to talk before court. She followed what the girl told her that she had been defiled from 2021 and that it was the accused who defiled her. 13. In re-examination she stated that she followed evidence of the minor on when the defilement first occurred. According to the mother she first noted the change of behavior and interrogated her. 14. PW3, PC Ben Obuya, testified that on 16/3/22 at 10.00pm whilst on routine duties along Katani road they were called by Madam Moraa and informed them that the accused was at his place of work Mosi House. they liaised with Judith who came and identified the accused. They then arrested him and escorted him to Syokimau Police Station for further action. He did not know why they were arresting the accused. 15. On Cross examination he stated that he was called to go arrest the accused and knew the reason for his arrest after he was taken to the station. 16. PW4, John Njuguna testified that he was in court on behalf of a colleague Robert Milimu who was on unpaid leave. He stated that he had a GVRC form for RN who was examined in their facility on 16th February 2022. She was expectant and gave a history of defilement by her Stepfather. On examination she had no injuries, the hymen was torn with an old scar, she was confirmed pregnant. 17. On cross examination, he stated that the minor stated that she was impregnated by Festus Kiilu even the examining doctor did not know which Festus she was talking about. The court should rely on the lab results which confirmed pregnancy as positive. 18. On re-examination he stated that the name Festus Kiilu came up when they were taking the history of the survivor. She had sexual intercourse with Festus Kiilu in December. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 3

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19. PW5, Joyce Kihoro testified that she was a government analyst at the Government chemist forensic biology section with over 11 years’ experience. She prepared a DNA report under the escort of CPL Christine Mulongo came Slyvester Kirwa Kosgei, the Appellant and RN and MC. She produced exhibit memo which required them to get vical swab samples from the 3 and do a DNA analysis to determine the paternity of Michelle Cherop. She obtained the vical swab samples and analyzed them and generated DNA profile as appearing in her report. Based on the DNA profile there was 99.99% more chances that Slyvester Kosgei was the biological father of Michelle Cherop RN’s daughter. 20. On cross examination she stated that they took the vical swabs from the mouth and after analysis she found that the accused was the biological father of Michelle Cherop. They work under supervision of their supervisors who counter check the reports. They tabulated the DNA profiles at the back of the report which gives the basis of the conclusion arrived at. They work under strict regulations. There are CCTv in the lab to ensure impartiality. The report is authentic 21. On Re –examination she stated that every person inherits DNA 50% from dad and mum which is the basis of DNA testing. On profiling of the parents, they can tell the DNA was inherited from both parents. 22. PW7, the Complainant, was taken through voire dire test and the court was satisfied that the minor understands the meaning and nature of the oath. She testified that she used to live in Syokimau with her mum and the Appellant. The Appellant wronged her and she has a child of 5 months. The Appellant impregnated her as her mum had gone to work and was not at home. She came to Syokimau in 2019. Slyvester had slept with her many times. She did not tell anyone. Slyvester would help her do her homework but had never beaten her. On the day her mum went for night vigil the accused slept with her. He inserted his penis into her vagina. 23. On cross examination she stated the accused impregnated her which DNA confirmed. She was afraid of reporting. She had not been promised anything for testifying. She was doing it on her own volition. The Defence case 24. The Appellant gave sworn evidence. The Appellant stated that he was arrested on 14/3/22 from his work place without any explanation being given and taken to Syokimau Police station where he was informed of the reason for arrest and later arraigned in court. He asked the court to give him a 2nd chance to go back to his young family who were suffering. He was not involved in any offence and has been faithful to his family. He doubted the complainant because she told the doctor that a person named Festus Kiilu was involved with her 25. On cross examination, he stated that the complainant was her step daughter and he had never had any sexual relations with her. He did not understand how the DNA matched with his yet he was never involved with the minor. The minor indicated that he used to help her with studies and only testified against him after a long push. Most of the time the minor’s mother was at home whenever she came from school and he was at work and would come in the morning when the minor was in school unless over the weekends and her mother was at home. Appeal submissions 26. The Appellant filed submissions on 23rd September, 2024 and listed the issues for determination according to the grounds: ground 1 was defective charge sheet, ground 2 contradictions and inconsistencies in testimonies, ground 3 medical evidence, and ground 4 frameup. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 4

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27. It was submitted that the dates in the charge sheet and what was started in the testimonies were not in harmony hence rendering the charge sheet defective and that this subsequently renders everything in the trial as null and void and thus he should be acquitted. 28. On contradictions and inconsistencies, it was submitted that there were inconsistencies in the dates given by the mother of the minor and in the charge sheet for the alleged defilement were contradicting. The PRC clears stated that the pregnancy was negative meaning the minor became pregnant after the PRC had been filed and hence the Appellant could not have been responsible. 29. Reliance was placed on the case of Bakare v State [1987] on buttress the limb of proof beyond reasonable doubt and the case of MTG v Republic [2022] on contradictions. He also relied on Section 111[1] of the Evidence Act. 30. On medical evidence the Appellant submitted that in this case there is no testimony by the complainant to be corroborated by the medical evidence. That the medical evidence was contradictory and were also unprocedurally before court and should be expunged. He relied on the case of Lonjerat Leura Dira v Republic [2008] eKLR and James Bani Munyonis v Republic [2010] eKLR. 31. On Frame up, it was submitted that PW1 took advantage of the unfortunate pregnancy to frame him and take his property a land which she has tried changing in vain. He relied on the case of Albanus mwasia Mutua criminal Appeal No 120 of 2004. 32. It was submitted that the magistrate did not consider his mitigation and he relied on the cases of State v Holder 1979, Sv Scott- Crossley and MK v Republic [2015]. 33. It was the Appellant’s final submission that the appeal be allowed as prayed and the court to set aside and or quash the conviction and sentence of the trial court. Respondent’s Submission. 34. It was submitted by Ms. Agatha, the State Counsel that the prosecution proved the following ingredients, the relationship between the accused and the complainant, the age of the complainant, the act of penetration and identification 35. On penetration, it was submitted that the evidence of the complainant was corroborated by PW5 and PW6. The medical documents also proved penetration. 36. On age, it was submitted that the incident happened on diverse dates between January 2021 and 15th March 2022. The minor was 13 years of age having been born on 19/7/2008 and an immunization card was produced which confirmed that the complainant was 13 years at the time of the incident. 37. On identity of the Appellant as the perpetrator, it was submitted that PW7 the complainant indicated that the Appellant would defile her and confirms that they lived together with her mum. The DNA report also confirmed that there was 99.99% chances that the Appellant was the father to the complainant’s child. Identification was therefore proved by way of recognition. 38. On the issue of relationship between the Appellant and the complainant, it was confirmed that the complainant lived with her mother and the Appellant whom she identified as her Stepfather. Reliance was made to Section 22 of the Sexual Offence Act and the case of BNM v Republic [2011] eKLR. 39. It was submitted that the prosecution discharged its burden of proof and the Appellant was properly convicted of the offence of incest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 5

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40. On sentence reliance was placed on the case of Republic v Joshua Gichuki Mwangi SC Petition N0 E 018 of 2023 and that the 30 years sentence imposed on the Appellant was lenient and that it be enhanced to life imprisonment. Analysis and Determination 41. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – v – Republic [1972] EA 32 where it was stated as follows: “ An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”. 42. Also, in Peter’s v Sunday Post [1958] E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. 43. In the case of Republic v Edward Kirui [2014] eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another v State by Prosecutor, Tamil Nadu & Another [2008] INSC 1688 where the case of Bhagwan Singh v State of M. P. [2002]4 SCC 85 was cited as follows:“ The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.” 44. 45. Having considered the lower court record, the grounds of appeal and the submissions of the parties, I find the following as issues for determination; a. Whether the prosecution proved the case beyond reasonable doubt b. Whether the sentence should be reviewed It is trite that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller v. Ministry of Pensions [1947] 2 All ER, 372 stated as follows: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 6

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to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.” 46. In this case, the Appellant was charged and sentenced under Section 20 [1] of the Sexual Offences Act which provide as follows: [1] “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 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.” 47. 48. The ingredients for the offence of incest can be summarized as follows; a. Proof that the offender is a relative of the victim, b. Proof of penetration or indecent act c. proper identification of the perpetrator. d. Proof of the age of the victim On the issue of penetration, the same is defined in Section 2 of the Sexual Offences Act as; “ penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 49. The victim stated the accused impregnated her as her mum had gone to work and was not at home. She came to Syokimau in 2021. The Appellant had slept with her many times. On the day her mum went for night vigil the accused slept with her. He inserted his penis into her vagina. 50. PW5 produced a PRC and GVRC Forms. It was his testimony that on examination there was no physical injury noted, on external genitalia exam was normal and hymen was torn with an old wound. The lab results revealed the pregnancy test as positive. 51. PW5 Joyce Kihoro testified that she was a government analyst at the Government chemist forensic biology section with over 11 years’ experience. She prepared a DNA report under the escort of CPL Christine Mulongo came the Appellant, the complainant and the complainant’s born child. She produced the Exhibit Memo which required them to get vical swab samples from the 3 and do a DNA analysis to determine the paternity of the complainant’s child. She obtained the vical swab samples and analyzed them and generated DNA profile as appearing in her report. Based on the DNA profile there was 99.99% more chances that the Appellant was the biological father of RN’s daughter MC. 52. The evidence of penetration was sufficiently proved based on the victim’s testimony and the other witnesses such as the government analyst on the DNA profile being 99.99 % matching with the appellant. I therefore find that there was indeed penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 7

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53. On the issue of identification, the Court of Appeal in the case of Peter Musau Mwanzia v The Republic [2008] eKLR expressed itself as follows:“ We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing that the suspect at the time of the offence can recall very well having seen him earlier on before the incident” 54. There is no doubt that the Appellant was married to the minor’s mother and were staying together. The Appellant admitted to even catering for the needs of the minor. It is therefore no doubt that identification was by way of recognition and the DNA results being able to confirm that the Appellant was the father of the RN’s child sums it all. 55. On the issue of relationship between the Appellant and the victim, this was not contested and everybody acknowledged that the two had a Stepfather –Stepdaughter relationship which falls within the ambit of Section 22 of the Sexual Offences Act. 56. On the issue of the age of the victim being a minor, this was confirmed by production of the immunization card which indicated that she was born on 19/7/2008 and was thus 13 years of age at the time of the incident. 57. Upon re-analyzing the totality of the evidence presented and re-evaluating the Appellants defence, there is no doubt that the prosecution proved their case beyond reasonable doubt as to the offence of incest. The upshot is that the appeal as against conviction under the offence of incest therefore fails. 58. As regards the sentence, this Court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru v. Republic [2002] eKLR where it was stated as follows: “ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 59. In Maingi & 5 others v. Director of Public Prosecution & Another [Petition No. E117 of 2021] [2022] KEHC 13118 [KLR] the Petitioners who were convicts serving offences under Sexual Offences Act No 3 of 2006 sued the Attorney General and sought for declaration that the mandatory nature of sentence under the Sexual Offences Act were unconstitutional as it fettered the discretion of Judges and Magistrates in meting out sentence. Justice G.V Odunga vide his considered judgment dated 17th May, 2022 did find that – “ to the extent that the Sexual Offences Act prescribed minimum mandatory sentences, with no discretion to the trial court to determine the appropriate sentence to impose, such https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 8

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sentence fall foul of Article 28 of the Constitution. However, the courts are at liberty to impose sentences prescribed thereunder so long as the same are not deemed to be mandatory minimum prescribed sentences.” 60. The legislation that was in force before commencement of the Constitution of Kenya 2010 must be considered with adaptation, qualification and exception when it comes to the mandatory minimum sentence and in particular when the said sentences do not take into account the dignity of the individual as mandated under Article 27 of the Constitution, 2010 and as appreciated in the Francis Muruatetu case and applied by courts in several cases. See Christopher Ochieng V Republic Kisumu CA Criminal Appeal No 202 of 2011 and Jared Koita Injiri Vrs Republic Kisumu CA Criminal Appeal No 92 0f 2104. 61. Sentencing is a discretion of the court of law but the court should look at the facts and the circumstances in the entirety so as to arrive at an appropriate sentence. The Court of Appeal in Thomas Mwamba Wanyi v Republic [2017] eKLR cited the decision of the Supreme Court of India in Alister Antony Pereira v The state of Maharastra at paragraph 70 – 71 where the court held; “ Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate and proportionate sentences commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles; twin objective of sentencing policy is deterrence and correction. What sentence would meet the end of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of crime, motive for the crime, nature of the offence and all the attendant circumstances. The principle of proportionality by sentencing a crime done is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment must bear relevant influence in determining the sentence of the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.” 63. In Francis Karioki Muruatetu & another v Republic the Supreme Court did provide guidelines and mitigating factors in re-hearing of sentence. The Judiciary sentencing policy guidelines list the objective of Sentencing At. Paragraph 4.1 they include the gravity of the offence, the threat of violence against the victim, the nature and type of weapon used by the applicants to inflict harm. 63. What are the relevant circumstances herein? The Appellant did take advantage of a young girl and defiled her to the extent of her becoming pregnant. I cannot tell what was the end game for the Appellant being that this was his Stepdaughter whom he had even acted as a caregiver to and therefore it should not even have crossed his mind that he can imagine having anything sexually with her. He ought to know better that the consequences of any kind of sexual offences against anyone. What is more confusing and disheartening is that out of the heinous act of incest herein, a child was born who is torn in between whether to refer to the Appellant as “Daddy” or “Grandpa” and this will haunt the victim and the child forever. 63. Having considered the sentence meted out and circumstances of this case and also having considered that the said Section 20[1] of the Sexual offences Act No. 3 of 2006 fettered the courts discretion in sentencing, I do find that the sentence was within the law given a reasonable proportionality between https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 9

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the sentence passed and the crime committed. In Republic v Scott [2005] NSWCCA 152 Howie J Grove & Barn J J it was stated; “ There is a fundamental and immutable principle of sentencing, that is, sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed… one of the purposes of punishment is to ensure that an offender is adequately punished… a further purpose is to denounce the conduct of the offender. 63. The upshot is that, I hereby find that this appeal lacks merit and is thus dismissed 63. Right of Appeal 14 days. It is so ordered. JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 20TH FEBRUARY 2025. NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 20TH FEBRUARY 2025. In the presence of: .................................... for Applicant …………....................... for Respondent Millygrace..................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14437/eng@2025-02-20 10

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