Ckk v Republic

the Appellant had a case to answer and put him on his defence. The Appellant testified on his own (unsworn statement) and also called one witness in his defence. As aforesaid, after close of the case, the trial Magistrate convicted the Appellant on each of the two counts, and sentenced him to serve two respective prison terms, each for 100 years 5. Aggrieved with the decision, the Appellant filed this appeal filed on 17/05/2024. He preferred grounds of appeal, reproduced verbatim, as follows: i. That the learned trial Magistrate erred in law and fact in convicting the Appellant on evidence which was inconsistent and unbelievable to secure a safe conviction. ii. That the learned trial Magistrate erred in law and fact by relying on medical evidence which was inconclusive, defective and did not meet the required threshold. iii. That the learned Magistrate imposed a harsh and excessive sentence of 100 years that would go beyond life expectancy as it was held in the case of Ali Abdalla Mwanza vs. Republic, Criminal Appeal No. 259 of 2012 at the Court of Appeal in Mombasa. iv. That I pray to be present during the hearing of the appeal to enable me to lodge more grounds of appeal. 6. I will now proceed to recount the witness testimonies before the trial Court 7. PW1 was MJ (minor), the first complainant. She testified that she lives with her father (the Appellant), her mother, a sister (second complainant) and two brothers, B1 and B2. She then stated that she was playing with her brothers, B1 and B2 when the Appellant (her father) came over and held her hand, took her to the other side of the house and removed her trousers then he put his “susu” in her “susu” and she felt a lot of pain and cried. She testified that she informed her mother of the incident on the following day, and who took her to hospital where she was examined and spent the night. She stated that, during the act, her two said brothers had asked the Appellant to leave the complainant alone but he ignored them. In describing the incident, she testified that her father was lying on the ground and he put her on top of him while she was standing. She also stated that this was the first time he was doing the act and that he threatened beat her should she tell her mother about it. She could not recall her age. In cross-examination, she stated that the incident occurred in the evening when her mother had gone to the posho mill. 8. PW2 was LC the complainant’s mother. She testified as an intermediary for the 1-year-old second minor-complainant, as the minor was unable to testify due to her tender age. PW2 stated that the Appellant is her husband, with whom they are blessed with 4 children; B1, B2 and the two complainants. She testified that PW1 was 8 years old as she was born on 6/05/2016, and she identified her clinical card in which the names of the parents are indicated. Regarding the second minor, LJ, she testified that she was born on 9/08/2022 and she also identified her clinical card. She testified that she was bathing PW1 on 18/10/2023 when she noticed sperms in her panty and upon interrogation, PW1 informed her that the father had defiled her behind the house as she was standing while the mother had gone to the posho mill, and she thus took the minor to hospital. Regarding the second minor, LJ, she also stated that she noticed a whitish discharge from her private parts as she was bathing her, and that when LJ was examined in hospital, it was established that she, too, had been defiled. She stated that the Appellant denied the allegation of defiling the minors, and that the Appellant’s parents abused and frustrated her when she reported the matter to them. She then identified the P3 Forms and Post Rape Care Form. 9. PW3 was Philemon Kitony a Clinical Officer. He stated that he examined the PW1 on 20/10/2023 and on examination, she found her labia and majora to be inflamed, minora inflamed around the edges, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16955/eng@2025-11-21 2

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the vagina slightly opened, and hymen torn but irregular at 6 O’clock and 9 O’clock position on each side. He testified that high vaginal swab revealed numerous leucocytes showing vaginal abrasion and numerous epithelial cells, and stated that during follow-up treatment on 30/01/2024, the minor had pus discharge, numerous epithelial cells, leucocytes and had pus infection which is not caused by sexual penetration but most likely by fingers. He thus stated that there was no evidence of forceful penile penetration but there was for penetration by fingers for the 1st and 2nd incidents, which was on the surface. Regarding the second minor, the Clinical Officer testified that her labia majora was intact, but minora inflamed, hymen torn, vagina was open and similarly, there was evidence of penetration by fingers. He stated that the age could have been about 5 days for the second minor and he then produced the Post Rape Case Forms, lab result, prescription Form and P3 Forms for the two minors. He stated further that they did not find anything abnormal for the second minor on 30/01/2024, and that, he concluded that it was fingers’ penetration, not any other object was used, and that the discharge was a lot which is very common in fingers’ penetration. He testified that his primary diagnosis was alleged sharp penile penetration but after the laboratory tests, he ruled out penile penetration and concluded that it was fingers’ penetration. He also agreed that an unclean penis can cause such infections. In crossexamination, he restated that it was fingers’ penetration. 10. PW4 was CPL Jason Maina, the Investigating Officer. He stated that he was instructed to go and pick the Appellant at the Chief’s Office, which he did, and escorted him to hospital, and later took him to Tambach Police Station where a case of incest had been reported by the mother of the minors. He stated that he recorded statements and that the minors’ Clinical Cards showed that the first minor (PW1) was born on 16/05/2016, and the second minor on 9/08/2022. He then produced the Clinical Cards. He testified that PW1 told him that their mother had left for the posho mill and she remained behind with her brothers when the Appellant (her father) came and took her behind the house and defiled her. 11. As already stated, after close of the Prosecution case, the trial Court found that the Appellant had a case to answer and put him on his defence. The Appellant then gave an unsworn statement for which he was not cross-examined, and he also called one witness. 12. The Appellant testified as DW1. He stated that on 17/10/2023, his wife, PW2, informed him that the children had lost money meant for the posho mill and he went back and found his wife assaulting B1 on allegations that the boy had touched the private parts of a daughter to his brother. He testified that later, his wife accused him of raping their daughters and she went to report to the Chief. He stated that later, a man told him that his wife had reported the Appellant to the police upon which he went to the Chief and a police vehicle came and picked him up, and he was later charged with the offence. 13. DW2 was Felix Komen. He he testified is that the Appellant is his customer at his pool table and hotel, that on 17/10/2023, the Appellant came to the hotel and took tea and went to the pool table, and that he told the Assistant Chief that the Appellant was at the hotel. In cross-examination, he stated that the hotel is about 4 kilometers away from the Appellant’s house, and that the Appellant was at the hotel until 9.30 pm. 14. The Appeal was canvassed by way of written Submissions. The Appellant’s Submissions is dated 28/04/2025, while the Respondent’s, filed through Prosecution Counsel Mr. Calvin Kirui, is dated 19/11/2024. Appellant’s Submissions 15. It is difficult to accurately pinpoint the Appellant’s specific grievances. This is obviously due to his limited ability to communicate effectively, obviously due to his minimal literacy level. However, trying as much as possible to discern his arguments, he seems to be challenging the conviction on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16955/eng@2025-11-21 3

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ground that the medical evidence ruled out penile penetration and concluded that the case was one of penetration by fingers. Regarding sentence, he basically submitted that the sentence of 100 years on each count, to run concurrently, is not just unconstitutional, but also harsh, and does not accord him a second chance at life yet prison is meant to be a rehabilitation facility. Respondent’s Submissions 16. On his part, Mr. Kirui, cited Section 20(1) of the Sexual Offences Act which provides for the offence of incest, and restated the ingredients that need to be demonstrated for a conviction to ensue. He cited the case of DMK vs. Republic [2022] eKLR. He observed that the first ingredient (proof that the offender is a relative) does not form part of the Appellant’s grounds of appeal but he, nonetheless, cited the testimony of PW1 that the Appellant is her father and that, at the material time, she was living with him. Counsel added that PW2 also testified that she is the two complainants’ mother, and that the Appellant is her husband. Counsel also observed that the Appellant’s name appears on the minors” Notifications of Birth and Clinical Cards, and that the Appellant did not dispute that he is the minors’ father. On proof of ‘penetration”, he cited Section 2 of the Sexual Offences Act, and PW1’s testimony that she was playing with her siblings when the Appellant came and took her to the side of the house, removed her trouser, took out his “susu and put into her “susu”, and she felt a lot of pain and informed PW2 (her mother) the following day of the incident. 17. He also pointed out that the second minor was declared vulnerable owing to her tender age and PW2 was appointed her intermediary in accordance with Section 31 of the Sexual Offence Act. He then cited the testimony PW2 that on 18/10/2023, she was bathing PW1 when she noticed sperms on her panty, and took her to hospital where it was confirmed that she had been defiled. He also recounted PW2’s further testimony that while bathing the second complainant, she also noticed whitish discharge on her private parts and when she asked the Appellant, he denied defiling the minor and that she took the second minor to hospital where, upon examination, she, too, was established to have been defiled. On the issue of corroboration of the evidence, Counsel cited Section 124 of the Evidence Act. He then submitted that PW1’s testimony of her being penetrated was corroborated by the Clinical Officer, PW3, who stated that on examining PW1, he noted that her panty was stained, her labia majora and minora were inflamed, vagina was slightly opened, hymen torn and there was vaginal abrasion and numerous epithelial cells. He also cited the contents of the P3 Form and Post Rape Case Reports. 18. In respect to the second minor, he cited PW3’s testimony that her labia majora and minora were also inflamed, hymen torn, and vagina open. According to him, it was clear that she, too, had been penetrated. On the issue of “age”, Counsel pointed out that the Investigating Officer (PW4) produced the minors’ Clinical Cards which showed that PW1 was born on 16/05/2016 and that the incident happened on 17/10/2023. He thus submitted that the complainant was 8 years old at the time of the incident. He also observed that the Appellant did not challenge this evidence and no contrary evidence was produced. He further observed that the Appellant elected to adduce and challenge the Prosecution evidence by way of unsworn testimony but which, in his view, did not contain any denial of committing the office per se, and that the Appellant’s witness, DW2, did not give any evidence of substance. On the issue of sentence, Counsel submitted that the Court was careful in considering the Appellant’s mitigation, and that the aggravating factors included the tender age of the minors, and the extensive damage occasioned on them by the Appellant who is the person charged with their parental protection and responsibility. He thus urged that the discretion of the Court was exercised judiciously. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16955/eng@2025-11-21 4

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Determination 19. As a first appellate Court, I am obligated to revisit and re-evaluate the evidence afresh, assess the same and make my own conclusions bearing in mind that, unlike myself, the trial Court had the advantage of hearing and observing the demeanour of the witnesses (see Okeno vs Republic (1972) E.A 32). 20. The issues that arise for determination in this appeal are the following: 21. i. Whether the Prosecution proved the charge of incest, and if not, whether conviction on the alternative charge of committing an indecent act with a child may be considered. ii. Whether the respective concurrent sentences of 100 years imprisonment on each count were lawful and/or justified. The offence of incest is provided for under Section 20(1) of the Sexual Offences Act 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 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." 22. To prove the offence of incest therefore, the ingredients that must be established are; (i) penetration, (ii) proof that the offender is a relative of the victim (iii) identification of the perpetrator, and (iv) age of the victim. 23. Regarding the “age” of the victims, the charge sheet referred to the age of 8 years for the first minor (PW1), and 1 year for the second minor. Clinical cards for the minors were produced which indicated that the first minor was born on 6/05/2016, thus 8 years at the time of the incident, and the second minor was born on 9/08/2022, thus 1 year old at that time. This evidence was not challenged and thus the ingredient of the “age” of the minors was clearly proved. 24. On whether the Appellant was a “relative”, both minors testified that the Appellant was their father. The Appellant, too, confirmed that the minors were indeed her daughters. PW2, the minors’ mother also confirmed the same. This ingredient, too, was therefore proved. 25. On “identification”, it is not in dispute that both the minors knew the Appellant very well as he is their father. The first minor, PW1, also narrated how the Appellant approached and held her hand, took her “to the side of the house”, removed her trousers and put his “susu” in her “susu” and she felt a lot of pain. She testified that her father committed the act by lying on the ground and placing her on top of him while she was standing. The identification was therefore one of “recognition”, and which is acknowledged to be the best form of identification (see the Court of Appeal case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR). 26. Regarding the minor’s use of the term “susu” to describe the genitals, the Court of Appeal, in the case of Muganga Chilejo Saha v Republic [2017] eKLR, acknowledged that such phrases are acceptable descriptions of sexual acts and/or organs. In accepting that in Kenya, the society has adopted such https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16955/eng@2025-11-21 5

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terms as a euphemism to mean phrases generally used by children, and even adults, to describe sexual acts, the Court of Appeal stated as follows: “ Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a Court room. If the trend in the decided cases is anything to go by, Courts in this country have generally accepted the use of euphemisms like, “alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016), “he pricked me with a thorn from the front part of this body.”, (Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015), “he used his thing for peeing”, (David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015), “he inserted his "dudu" into my "mapaja", (Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016), “he used his munyunyu”, (Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011), as apt description of acts of defilement. We, however, need to remind trial Courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015, among several others. Trial Courts should record as nearly as possible what the child says happened to him or her. (emphasis added).” 27. Regarding “penetration”, PW4, the Clinical Officer who examined the minors testified that basically both their labia and majora were inflamed, the vaginas were slightly opened, the hymen torn, and there were also vaginal abrasions. He stated that his first impression was of “penile penetration” but after conducting laboratory results, he ruled out “penile penetration” as he only found evidence of penetration “by fingers”. It seems this portion of the Clinical Officer’s testimony escaped the trial Magistrate as she never addressed it at all in her Judgment. 28. It is clear that conviction on the charge of incest under Section 20(1) of the Sexual Offences Act, 2006, already quoted verbatim above, requires proof of “penetration” which is itself defined under Section 2(1) of the Sexual Offences Act as follows: “ the partial or complete insertion of the genital organs of a person into the genital organ of another person.” 29. I am aware of authorities alluding that in cases of incest, “penetration” need not be only by genital organs but by any other part of the body, including fingers. I have in mind decisions such as DMW v Republic [2020] KEHC 1650 (KLR) (H.I. Ong’uti J), and NMM v Republic [2020] KEHC 1027 (KLR) (G.V. Odunga J-as he then was). The reasoning for this school of thought is obviously as a result of use of the conjunction “or” in Section 20(1) of the Sexual Offences Act in the expression “who commits an indecent act or an act which causes penetration”. I however beg to respectfully disagree. Applying that reasoning would, first, mean that there is no difference between a charge of “incest” under Section 20(1) and a charge of “committing an indecent act with a child” under Section 11(1), or even a charge of “sexual assault” on a child as provided under Section 5(1). Secondly, that interpretation would also directly conflict with the clear definition of “penetration” as provided under Section 2(1) (supra) which expressly defines “penetration” as “the partial or complete insertion of the genital organs of a person into the genital organ of another person”. 30. I am aware that PW1’s testimony alluded to “penile penetration” but with the clear testimony by the medical expert (PW3) ruling out “penile penetration”, I find it unsafe to sustain the trial Magistrate’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16955/eng@2025-11-21 6

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finding that “penile penetration” was proved. In the circumstances, I find that the conviction on the two counts of the charge of incest cannot stand. 31. What about the alternative charge of committing an indecent act with a child? 32. In respect to the alternative charge of the offence of committing indecent act with a minor, Section 11(1) provides that: “ Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years. 33. There is then Section 2(1), which defines “indecent act” as “an intentional act which causes”; “ (a) any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration. “(b) exposure or display of any phonographic material to any person against his or her will, but does not include an act which causes penetration.” 34. It is therefore clear that to prove the charge of committing an indecent act with a child, in addition to the ingredients already established above, and excluding “penetration”, the other ingredient that must also be proved is contact of the accused person’s body part to either the genitalia, breasts or buttocks of the child, and that such contact was done “intentionally”. I am however satisfied that “intentional” contact between the Appellant’s penis and PW1’s genitals was proved. PW2’s recollection of the events of that day was quite detailed and consisted of vivid accounts. From the descriptive narrative given, and words used by PW1, I am persuaded that there was an indecent act committed by the Appellant against PW1. 35. Regarding the second minor, LJ, the 1-year-old however, although the doctor established penetration by fingers, there was no evidence to prove beyond reasonable doubt that it is the Appellant who committed the act. The accusations against him as regards the second minor were merely speculation as they were based entirely on suspicion. As held by the Court of Appeal in the case of Mary Wanjiku Gichira v Republic 1998 eKLR, “suspicion alone, however strong, cannot provide a basis for inferring guilt”, which must be proved by evidence 36. In the end, I set aside the conviction on both main counts of the charge of incest. I however find the Appellant guilty of the alternative charge under Count I, namely, the charge of committing an indecent act with the child described as MJ, her then 8 years old daughter. Regarding the alternative charge under Count II, namely, committing an indecent act with the second minor, LJ, I find that there was no sufficient evidence presented to support that alternative charge. 37. The charge of committing an indecent act with a child is a serious criminal offence in Kenya under the Sexual Offences Act, and as already observed above, it carries a minimum sentence of not less than 10 years imprisonment under Section 11(1). The sentence of 10 years imprisonment being the minimum, it follows that Courts retain the discretion to impose a higher sentence, where appropriate, depending on aggravating factors, such as the age of the victim, abuse of a position of trust, such as by a parent, relative or teacher, or the level of trauma caused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16955/eng@2025-11-21 7

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38. Despite Section 11(1) containing the mandatory minimum 10 years prison sentence, I take judicial notice of the emerging jurisprudence that strict adherence to mandatory minimum sentences is now being discouraged and the majority view now prevailing is that Courts retain the discretion to depart from mandatory sentences. This was appreciated in the Supreme Court case of Francis Karioko Muruatetu and Another v Republic [2017] eKLR which dealt with a case of murder. On the strength of the Muruatetu case, the High Court and even the Court of Appeal routinely reviewed mandatory minimum sentences imposed on convicts for different offences other than murder, including for sexual offences and robbery with violence. However, by the subsequent clarification made by the same Supreme Court in its subsequent directions given in Muruatetu & Another v Republic; Katiba Institute & 4 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), the Supreme Court made it clear that Muruatetu only applied to murder cases, and not to any other type of case, not even sexual offences. The Supreme Court reiterated and restated these directions in its subsequent case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment). 39. Be that as it may, the Supreme Court, in the case of Francis Karioko Muruatetu & Another v Republic [2017] eKLR, guided that, in sentencing, the following mitigating factors would be applicable; 40. (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; and (h) any other factor that the Court considers relevant. Similarly, in the case of Daniel Kipkosgei Letting v Republic [2021] eKLR, the Court of Appeal held as follows: “ …………. we observe that the purpose and objectives of sentencing as stated in the Judiciary Sentencing policy should be commensurate and proportionate to the crime committed and the manner in which it was committed. The sentencing should be one that meets the end of justice and ensures that the principles of proportionality, deterrence and rehabilitation are adhered to. ……..” 41. I also cite Majanja J, in the case of Michael Kathewa Laichena & another v Republic [2018] eKLR, in which, quoting the Muruatetu case (supra), he stated that: “ The Sentencing Policy Guidelines, 2016 (“the Guidelines”) published by the Kenya Judiciary provide a four tier methodology for determination of a custodial sentence. The starting point is establishing the custodial sentence under the applicable statute. Second, consider the mitigating circumstances or circumstances that would lessen the term of the custodial sentence. Third, aggravating circumstances that will go to increase the sentence. Fourth, weigh both aggravating and mitigating circumstances. ………………” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16955/eng@2025-11-21 8

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42. Applying the principles set out in the authorities cited above, I consider that the Appellant was the father to the minor, an 8-year-old girl, and the Appellant was therefore the same person expected both by society and law, to protect her and provide her with a sense of protection and security. He, instead, betrayed that trust and committed the despicable act on the minor, his very own flesh and blood, and from which the minor will forever bear the scars of, and is unlikely to fully recover. The worse fact is that the Appellant is not even remorseful and despite the overwhelming evidence, still continues to claim that he was framed. 43. However, I deem it necessary to give the Appellant the opportunity to reform while in prison and thereafter be released to achieve social re-adaptation. I believe that after a reasonable prison term, he will have suffered sufficient retribution for his actions and will be ready for rehabilitation into the society. I also consider his mitigation before the trial Court. Taking into account all the relevant circumstances, and the impact of the offence on the minor and those around her, particularly her mother, I trust that a sentence of 15 years imprisonment shall be just. 44. Before I pen-off, I note from the charge sheet on record that the Appellant was arrested on 20/10/2023 and was arraigned on 24/10/2023. After conclusion of the trial and upon his conviction, the sentence was eventually read out on 17/04/2024. I have no indication that he was granted bond or bail and I therefore presumed that he remained in remand custody throughout the trial. In view of the proviso to Section 333(2) of the Criminal Procedure Code, which requires that the period that a convict has spent in remand custody be “taken into account” while determining sentence, I will apply this proviso. Final Orders: 45. In the circumstances, I make the following Orders: i. I set aside the conviction of the Appellant by the trial Court on the main charge of incest under Count I and Count II, together with the respective prison sentences, each for 100 years imposed by the trial Court, and substitute the same with a conviction on the alternative charge under Count I only, namely, the charge of committing an indecent act with the child described as MJ, then aged 8 years old. ii. As a consequence of (i) above, I hereby sentence the Appellant to serve 15 years imprisonment as a result of the conviction on the alternative charge under Count I. iii. As stipulated under the proviso to Section 333(2) of the Criminal Procedure Code, the time spent by the Appellant in pre-trial custody before sentencing shall be taken into account in computing the remaining period of the prison sentence term. DELIVERED, DATED AND SIGNED AT ELDORET THIS 21ST DAY OF NOVEMBER 2025 ............................... WANANDA JOHN R. ANURO JUDGE Delivered in the presence of: Appellant present virtually from Naivasha Maximum Prison Ms. Mwangi for the State Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16955/eng@2025-11-21 9

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