Hmk v Republic

6. The complainant screamed and Aunt V called her later. The complainant told Aunt V that her father was doing tabia mbaya to her. 7. The complainant said Aunt V told her grandmother what the complainant had told her. The Appellant wanted to beat Aunt V but the grandmother restrained him. 8. V screamed and neighbours went there and arrested the Appellant and took the child. 9. PW3 Doctor Joto Nyawa of Moi Hospital examined the complainant on 21st December 2022 and he said her vaginal orifice was larger than her age. He said her hymen was broken but not freshly so. 10. The Appellant said he had gone to attend his Uncle’s funeral and when he returned, he discharged his wife from hospital. 11. The wife asked him why V had said he had defiled the child. He called V and asked her. He wanted to beat V but his mother-in-law intervened. 12. V stepped out and screamed and a crowd gathered. The Community Policing Oficers went there. The Appellant was placed in custody. 13. The Appellant called his mother-in-law as his witness (DW2). She said that V asked her to take the complainant and stay with her. 14. When DW2 asked V why she said she would imprison the Appellant for 20 or 40 years. She said V was a trouble maker. 15. The trial court found the Appellant guilty as charged and sentenced him to life imprisonment. 16. The Appellant has now appealed to this court on the following grounds;i. That the learned trial Magistrate erred in both law and fact in failing to appreciate that the charge sheet was defective. ii. That the learned trial Magistrate erred in law and fact by convicting the Appellant yet failed to find that the prosecution had not proved its case beyond reasonable doubt. iii. That the sentence imposed was declared unconstitutional by the Constitutional Court in Wachira & 12 Others v Republic and 2 Others, HC Petition Nos, 97, 88, 90 and 57 of 2021 (Consolidated); (2022) KEHC 12795 (KLR) hence it was harsh and excessive since it was applied in mandatory terms as provided by the statute and failed to consider the Appellant’s mitigation and the facts and circumstances unique to the case. 17. The parties filed written submissions as follows:- the appellant submitted that there were inconsistencies with evidence. The appellant argued thats PW1 claimed that PW2 had found her naked with the appellant and no evidence was submitted to corroborate the same. The appellant argued further it was impossible for him to have committed the alleged crime as he was at work at the time of commission. 18. The appellant further argued that the inconsistent testimonies that were averred created doubt as to whether the complainant was defiled. 19. It was the appellant’s submissions that the sentence that was imposed on him was excessive. He argued that during mitigation the trial court did not consider that he was a family man with three children and was the sole bread winner of his family. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19625/eng@2025-05-02 2

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20. The prosecution alternatively submitted that it proved the case beyond reasonable doubt. The complainant positively identified the appellant as her assailant being her father whom she lived with. Penetration was proved by the medical report that was produced at the trial. There was thus no miscarriage of justice occasioned by the appellant. 21. The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must reexamine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind. 22. The Court of Appeal in Okeno v Republic [1972] EA 32 held that: “ 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 Republic (1957) EA (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v R (1957) EA 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 finding and conclusion; 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] EA 424.” 23. The issues for determination in this appeal are as follows:i. Whether the charge sheet was defective. ii. Whether the Appellant was positively identified. iii. Whether the penetration was proved. iv. Whether the age of the complainant was proved. v. Whether the appellant’s alibi defence was considered by the trial court. vi. Whether the sentence was excessive. 24. On the issue as to whether the charge sheet was defective, I find that the charge sheet clearly stated that the defilement occurred between the year 2019 and 17th December 2022. 25. PW2, the mother of the minor said she went to Hospital to deliver and that is the date PW6 heard the complainant crying and she went and saw the complainant crying behind the house. The complainant told her what had happened. 26. I find that the evidence was consistent with the charge the appellant was facing. 27. On the issue of identification, the complainant knew the Appellant as her father. 28. The evidence of V (PW6) corroborated that of the complainant. 29. V was a neighbour and she is the one who informed the complainant’s grand mother about the incident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19625/eng@2025-05-02 3

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30. On the issue of penetration, the complainant’s evidence was corroborated by that of PW3, Doctor Joto Nyawa who said the complainant’s hymen was missing and her vaginal orifice was wide indicating that the minor had been defiled. 31. On the issue of the age of the minor, there is evidence that the child was born on 15th April 2016 and she was six (6) years at the material time. 32. On the issue as to whether the appellant’s alibi defense was considered, I find that the testimony of the complainant was corroborated by that of PW6. The two said that the mother of the complainant had gone to give birth when the appellant molested the complainant. The said evidence placed the appellant at the scene on 17th December 2022 and therefore disproved the alibi. 33. On the issue as to whether the sentence is excessive, I find that the said sentence is appropriate in this case. 34. I find that this appeal lacks in merit. 35. I dismiss the appeal and confirm both the conviction and sentence. DATED, SIGNED AND DELIVERED THIS 2ND DAY OF MAY, 2025 VIRTUALLY VIA MT AT VOI HIGH COURT. ASENATH ONGERI JUDGE In the presence of:Court Assistants: Maina/Millicent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19625/eng@2025-05-02 4

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