Nnm v Republic

8. The Appellant has appealed to the court on the following grounds:i. That the learned trial Magistrate erred in both law and fact by failing to find that the Appellant was charged by a defective charge sheet informed and in drafting charge sheet which was never served to him. ii. That the learned trial magistrate erred both in law by failing to find that Article 49(1)(F) (i)(ii)(g)(h) and also Article 50(1)(2)(a)(b)(c)(g)(h) were contravened by the trial court and prosecution and police and also Article 35(a)(b) of the Constitution of Kenya. iii. That the learned trial magistrate erred both in law and fact by sentencing the Appellant to 20 years imprisonment yet failed to find he was incriminated in this case and framed case fabricated and also implicated on him by Beatrice for report her to the children’s office and also reported her to the police and chief’s office whereby she was summoned to appear and she refused. iv. That the learned trial magistrate erred both in law and fact by failing to call the officer of children’s department and OCS and chief of the area to clear doubts of that my child’s were injured by BM my mother in law and instead ordered him to be taken to Portreitz for mental assessment which was a cover up of the case she had committed to his child. v. That the learned trial magistrate erred both in law and facts by failing to evaluate and find that consisted of massive contradictions discrepancies and inconsistencies immaterial enough to sustain a safe conviction upon him at all. vi. That the learned trial Magistrate erred both in law and facts by failing to evaluate the cross examination of all witnesses especially PW1, PW2, PW3 and PW4 and also PW5 what the asserted in reply. vii. That the learned trial magistrate erred both in law and fact by failing to find that the case was not proved beyond reasonable doubt or to the required standard. viii. That the learned trial magistrate erred both in law and fact by failing to consider his alibi defense of truth yet favoring the prosecution. ix. That the honorable learned trial Magistrate erred both in law and fact by failing to evaluate the summons letter written by Mr. Boga the children’s department officer dated 7th December 2021 which Beatrice who lied that she is a social work officer yet she is the mother of my wife and my children’s grandmother who had beaten them. x. That the learned trial Magistrate refused to call the OCS children’s department officer Mr. Boga and area chief who were crucial witnesses who I had reported the matter to them. Before changing to the case against him of defilement of his own child which never occurred at all. 9. The parties filed submissions as follows:- the appellant submitted that he was being framed by his mother-in-law BM despite having reported her of injuring his children to the Children’s Officer. She was summoned numerous times but failed to appear. It was the appellant’s contention that the matter herein was in retaliation to the same. The appellant further indicated he could not have defiled the complainant because he got sick and cannot be erect at all and this was the reason his wife left him. 10. The appellant denied the charges and argued that the prosecution did not provide sufficient evidence to support their case. The appellant argued that he was clearly framed and the evidence that was produced in court was fabricated to make him look guilty. He indicated that the complainant was couched by PW2 and PW4 to give her testimony the way she did. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19629/eng@2025-05-02 2

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11. The respondent alternatively submitted that was charged with two counts of Sexual Assault which was proved to the required standard. PW5 Dr William Sigei testified that the complainant was examined together with her sister, the 2nd complainant aged 5 and 6 respectively. The Hymen of JW aged 5 was intact while that of GM aged 6 was broken. The complainant positively identified the appellant who was her father. 12. The respondent on the appellants defence that he was framed by his mother-in-law of differences of custody of the children was not proven. The respondent argued that the offence against the appellant is serious noting that the complainant is his biological daughter. The appellant took advantage of the fact that his daughters were fully dependent on him. 13. This being a first appeal, the duty of the first appellate court is as follows: The Court of Appeal in Okeno vs 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 vs 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 vs Sunday Post [1958] EA 424.” 14. The issues for Determination in this appeal are as follows; i. Whether the prosecution proved its case beyond reasonable doubt. ii. Whether the Appellant’s constitutional rights were violated during trial. iii. Whether the trial court properly evaluated the defence and prosecution evidence. iv. Whether the sentence was excessive or unlawful. 15. On the issue as to whether the Charge Sheet was defective and whether the appellant’s Constitutional rights were violated, the Appellant alleged that the charge sheet was defective and not served on him. 16. Further, that his rights under Articles 49(1)(f), 50(1)(2), and 35 of the Constitution were violated. 17. However, the record does not indicate any objection to the charge sheet during trial. An objection raised for the first time on appeal is untenable unless it caused a miscarriage of justice. 18. I find that there is no evidence that the Appellant was denied a fair trial. The trial court conducted proceedings in accordance with the law. 19. The Appellant submitted that the case was fabricated by his mother-in-law in retaliation for reporting her to authorities and that the trial court failed to summon crucial witnesses (Children’s Officer, OCS, area chief). 20. I find that the prosecution is not obligated to call every possible witness; it must only present sufficient evidence to prove the case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19629/eng@2025-05-02 3

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21. The Appellant had the opportunity to summon these witnesses under Section 150 of the Criminal Procedure Code but failed to do so. His allegations of fabrication remain unsubstantiated. 22. The Appellant claimed that the prosecution’s case had material contradictions and that the trial court failed to properly evaluate cross-examination of witnesses. 23. However, I find that minor inconsistencies (e.g., hymen status of the two complainants) do not invalidate the prosecution’s case if the core allegations are consistent. 24. The complainant’s identification of the Appellant (her father) was clear and the sexual assault was corroborated by medical evidence. 25. The trial court had the opportunity to examine the demeanor of the complainant and was satisfied that she was telling the truth. 26. The trial court also relied on the proviso to Section 124 of the Evidence Act which states as follows:“ 124. Corroboration required in criminal cases. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”(emphasis added) 27. The court acquitted the appellant on Count II and found the testimony of the complainant in Count I reliable. 28. The trial court found that the Appellant was positively identified by the minor as her father. 29. The Appellant claimed that he provided an alibi and also evidence that he has a medical condition preventing erection but the court ignored it. 30. However, an alibi must be raised at the earliest opportunity and supported by evidence. The Appellant’s claim was vague and unsupported by medical records. 31. I find that the key elements of sexual assault under Section 5(1) of the Sexual Offences Act were proved. They are as follows; i. Unlawful intentional contact with genital organs. ii. Lack of consent. 32. PW1 (complainant) testified that the Appellant assaulted her. 33. PW5 (doctor) confirmed that medical findings consistent with assault. 34. The Appellant was the primary caregiver, giving him exclusive opportunity to commit the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19629/eng@2025-05-02 4

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35. The prosecution discharged its burden of proof beyond reasonable doubt. 36. The Appellant was sentenced to 20 years imprisonment, the minimum under Section 5(2) of the Sexual Offences Act for assault on a child under the age of 11 years. 37. The sentence is lawful and proportionate given the gravity of the offence and the trust violation (as the victim’s father). 38. Recent jurisprudence (see Julius Kitsao Manyeso v Republic [2024]) does not affect mandatory minimum sentences for sexual offences. 39. The appeal is dismissed in its entirety. 40. The conviction and sentence are upheld. 41. The Appellant shall serve the remainder of his 20-year 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/2025/19629/eng@2025-05-02 5

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