Gmm v Republic

pushed the door open and found the Appellant half naked while the victim did not have trousers on. Other people went to the scene as she went to notify the child’s mother. 6. PW3 NWM, the mother of the victim was called by her sister-in-law and on going to the scene she found her daughter the victim sitting on the bed inside the house of the Appellant her brother-inlaw and the Appellant was being beaten by members of public. They escorted the Appellant to the police station. Having been assaulted, the Appellant just like the victim were escorted to the hospital for treatment by PW4 No. 235798 PC(W) Ruth Kamanda. 7. On examination by Dr. Victor. M. Waithaka of Ol’kalou Hospital, the victim was found to be in fair general condition but, her vaginal orifice was inflamed and tender. The hymen was stated to be incompletely broken, hence the charges preferred. 8. Upon being placed on his defence the Appellant stated that on the material date he encountered 4 people, T, JJ, JA andA. Three of them were his brothers, while T lived in the neighbourhood. They alleged that he had done something wrong the previous day and he took off but they pursued and apprehended him. They took him to Ol’kalou Police Station. At the outset he was charged with defilement without being told why they suspected him to have defiled the girl. That he used to disagree with A over the motorcycle and it was not the first time that he took him to the police station. 9. Pursuant to directions taken, the appeal was to be canvassed through written submissions. Only the Appellant filed submissions. It is urged that the sentence of life imprisonment imposed is not a mandatory sentence for the offence of incest. Reliance is placed on the case of PMK v Republic [2018] eKLR. 10. That evidence adduced by PW1 (victim), and PW3 clearly show that there was no penetration. That the victim was not clear on whether the Appellant inserted his genital organ into her genital organ which created a doubt as to whether there was penetration as alleged. 11. Further, that the DNA conducted did not establish whether the Appellant committed the offence. 12. This being a first appellate court, it is duty bound to subject evidence adduced before the trial court to a fresh evaluation and analysis bearing in mind the fact of not having had the opportunity of hearing the witnesses and observing their demeanour. This was stated in Okeno v Republic [1972] EA 32 as follows; “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) 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. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a 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 draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.” 13. The offence of incest is created by Section 20(1) of the Sexual Offences Act which provides thus; 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: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18338/eng@2025-11-18 2

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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. 14. To prove the offence the prosecution is obligated to prove an act having occurred that caused an indecent act with the victim or penetration. And, there should exist knowledge of the fact of familial relationship. 15. Evidence adduced by the victim a child of tender years was that the perpetrator took her to his house and did bad manners to her. That he removed his trousers and put her on his bed and slept on top of her and touched her. Then, put his “thing” used to urinate in her vagina. With clarity of mind the child was sure of what bad manners meant to her. 16. Notably, the Appellant had no question for the victim. PW2’s evidence did corroborate the fact of the perpetrator having been seen lying on top of the victim. And, medical examination conducted established the fact of the complaint (victim) having sustained some injury. The external opening of the vagina between the urethra and anus was inflamed and tender. 17. Section 2 of the Sexual Offences Act defines penetration as; “ …“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 18. Evidence adduced did prove complete insertion of the penile shaft into the genitalia of the victim. There was proof of penetration by virtue of the inflammation found and the partial broken hymen. This was evidence of penetration. 19. Further, following microscopy wet prep procedure conducted some spermatozoa was seen. The Appellant argues that the same was not profiled to identify if it had his unique identity. In as much as DNA evidence would be used to support proof of a defilement case, it is not an absolute requirement to determine the fact of guilt of a perpetrator. In AML v Republic [2012] eKLR the Court of Appeal held that; “The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.” 20. This is a case where the victim’s testimony was supported by evidence, of an eye witness, PW2 and confirmed by medical evidence, failure to investigate if indeed the spermatozoa belonged to the Appellant was inconsequential. 21. On the question of consanguinity, Section 21 of the Sexual Offence Act provides thus; The provisions of section 20 shall apply mutatis mutandis with respect to any female person who commits an indecent act or act which causes penetration with a male person who is to her knowledge her son, father, grandson grandfather, brother, nephew or uncle. 22. PW3 stated that the Appellant is a brother to her husband, PW5 SWN who confirmed that the Appellant is his younger brother hence an uncle to the victim. At the time of the act he acted with full knowledge that the victim was his niece. 23. As to the sentence imposed, the State provides for a sentence of not less than ten (10) years imprisonment. But, where the female is under eighteen years, then the offender is liable to life https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18338/eng@2025-11-18 3

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imprisonment. In Thomas Mwambu Wenyi v Republic [2017] KECA 756 (KLR) the Court of Appeal held that; “ ….the use of the words “shall be liable to imprisonment for life with hard labour” in section 145 of the Penal Code gave room for the exercise of judicial discretion. The two courts below fell into error when they took the words “liable to” to mean that only the maximum sentence could be meted out against the appellant. The appellant was a first offender, and the prosecution did not advance any other reasons to justify the maximum sentence.” 24. In M.K.V. v Republic [2015] KECA 468 (KLR) the Court of Appeal stated that; 17. In the instant case, the appellant was charged with an offence under Section 20 (1) of the Sexual Offences Act. This Section provides for a minimum term of 10 years imprisonment. However, the proviso to Section 20(1) stipulates that if the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life. The learned judge of the High Court interpreted this proviso to mean that a mandatory minimum sentence for life is provided for in the proviso if the female victim is under the age of eighteen years. The legal question for our consideration and determination is whether this interpretation is correct; does the proviso provide for a minimum term of life imprisonment? 18. The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20 (1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life. 19. What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya -v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James -v- Young 27 Ch. D. at p.655 where North J. said: “But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”. We consider such to be the correct approach to the construction of the words “shall be liable on conviction to suffer death: especially when contrasted with the words of s.184 which are “shall be sentenced to death”. 25. Per the birth certificate and evidence of the parents PW3 and PW5, the victim was born on 07/02/2015. At the time of the act she was five (5) years old, therefore a child below the age of 18 years. The Appellant though a first offender when granted the opportunity to mitigate so as lessen the gravity of the offence he opted to remain silent. This was evidence of lack of remorse. However, the sentence https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18338/eng@2025-11-18 4

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imposed of life imprisonment to a first offender was harsh and excessive. (See Arisol v Republic [1957] EA 447). 26. The upshot of the above is that the appeal against the conviction lacks merit hence is dismissed. But, the sentence imposed is set aside and substituted with a sentence of thirty (30) years imprisonment which will be effective from the date of arrest, 14th June, 2020. 27. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18 TH DAY OF NOVEMBER, 2025. ............................... L.N. MUTENDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18338/eng@2025-11-18 5

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