High Court 19650 of 2025

8. The complainant said the Appellant defiled her several times. She went to the police station at Mwatate and reported. She told the police what the Appellant had done to her. 9. She went to Mwatate Sub County Hospital and she got antibiotics. 10. PW2, Doctor Furaha Faraji examined the complainant and said she had a broken hymen and a white vaginal discharge. She was put on antibiotics and antifungal medication. 11. PW2 said the pregnancy test, syphilis test and HIV tests were negative. The urine test showed puss cells which is an indication that she had urinary tract infection. 12. The Appellant said in his defence that he did not defile his daughter but he was defending her from an Iman teacher who had defiled her. 13. The Appellant’s wife and son testified as DW2 and DW3. They said the Appellant had reported a case of defilement against the Ustadhi and the following day a group of women came to their home and said that if the Ustadhi was convicted they would jail the Appellant. 14. The trial court found the Appellant guilty as charged and sentenced him to 20 years imprisonment. 15. The Appellant has appealed to this court on the following grounds:i. That the learned trial Magistrate erred in both law and fact by failing to find out that the case against the Appellant was fabrications intended to cast suspicions against. ii. That the learned trial magistrate erred in both law and fact by failing to find out that the investigations was not transparent and did not compile a reasonable basis to charge the Appellant. iii. That the learned trial magistrate erred in both law and fact by failing to find out that the penetration proved was not evidence tendered for the case against the Appellant. iv. That the learned trial magistrate eroding both law and facts by discrediting the defence evidence while the case was not a prima facie. 16. The parties filed written submissions as follows:- the appellant submitted that the prosecution did not prove its case beyond reasonable doubt. He indicated that he was being framed and the evidence that was produce in the trial court was circumstantial. 17. The appellant further argued that the first report of the complainant was that she had been defiled by a Madrassa Teacher to which she was taken to hospital and P3 form was filled. It was only later that she changed her report and accused the appellant. 18. The prosecution submitted that it proved its case to the required standard. On proof that the offender was a relative, the appellant admitted during his testimony that the complainant was his daughter. This was corroborated by the testimonies od PW1, DW2 and DW3. 19. On the age of the complainant, PW3 lead evidence to the effect that the victim was born on 29/5/2001 and the incident took place in December 2019 and as such the victim was 18 years as a the time of the offence. 20. The prosecution submitted that it proved penetration as PW2 Dr. Furaha produced medical documents to the effect that upon examining the complainant there was evidence to prove that she was defiled. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19650/eng@2025-05-02 2

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21. Finally, the complainant positively identified the appellant as he was her father. She explained that, the appellant would send away her younger siblings and take her to his bedroom, where he would threaten and defile her. 22. 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. 23. 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.” 24. 25. The issues for determination in this appeal are as follows:i. Whether the prosecution proved the guilt of the Appellant to the required standard. ii. Whether the appeal should be allowed. On the issue as to whether the prosecution proved the guilt of the Appellant to the required standard, the offence of incest is defined as follows by section 20 of the Sexual Offences Act 20. Incest by male persons (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 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. 26. The prosecution case was that the Appellant defiled his daughter at his home after sending her brothers away, threatening her with a knife, and forcing her into sexual acts. The complainant reported the matter to the police and was medically examined, with findings confirming penetration and injuries consistent with defilement. 27. In his defence, the Appellant denied the offence, claiming he was framed and that the complainant had initially accused an Imam teacher of defiling her before changing her story. The trial court rejected this defence, finding the prosecution had proved its case beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19650/eng@2025-05-02 3

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28. This court, as the first appellate court, has a duty to re-examine the evidence afresh and arrive at its own independent conclusions while giving due allowance for the trial court’s advantage of observing witnesses. The Court of Appeal in Okeno v Republic [1972] (supra) emphasized that a first appellate court must conduct an exhaustive evaluation of the evidence, weigh conflicting testimonies, and draw its own conclusions rather than merely rubber-stamp the trial court’s findings. 29. Upon re-evaluation, I find that the prosecution proved all elements of the offence. The relationship between the Appellant and the complainant was undisputed, as he admitted she was his daughter. 30. Penetration was confirmed by medical evidence from PW2, Dr. Furaha Faraji, who noted a broken hymen and vaginal discharge consistent with forceful intercourse. The complainant’s testimony was consistent, detailed, and corroborated by medical findings. 31. The Appellant’s defence that the complainant was initially accusing an Imam lacked credibility, as no evidence supported this claim. 32. The trial magistrate properly assessed the evidence and correctly convicted the Appellant. The sentence of 20 years imprisonment is lawful, as Section 20(1) of the Sexual Offences Act prescribes a minimum of 10 years, and the sentence imposed is neither excessive nor unreasonable. 33. The appeal lacks merit, and the conviction and sentence must stand. 34. In conclusion, the appeal is dismissed. The conviction and sentence of 20 years imprisonment are upheld. 35. The Appellant shall serve his sentence as ordered by the trial court. 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/2025/19650/eng@2025-05-02 4

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