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4. b. The judgement of the trial court was nullity because the applicant was not accorded a right to be represented by an advocate of his choice as provided for under article 50(2) (g) of the constitution. c. The learned trial magistrate in law and in fact, for disregarding the fact the evidence produced was not supported by proper investigation. d. The sentence meted upon him was excessively high and punitive e. He contended that the sentence was illegal given that the age of the complainant that was claimed to be 15 year was not supported by a birth certificate. Based on the above grounds the Appellant prayed for the quashing of his conviction and setting aside of his sentence. The Factual Background 5. As first appellate court this court as a duty to re-evaluate the evidence adduced before the Trial Court and arrive at its own conclusion but bearing in mind that it neither saw nor heard the witnesses. (See Okeno vs. Republic (1972) EA 3). 6. During the hearing of the prosecution case at the trial court, the prosecution counsel called a total of 4 witness. PW2 was the complainant. She stated that she was a class 8 student and was born in 2009. She stated further that she is currently staying in Nyakeyo with her mother but was previously was staying at Getono with his father, the Appellant herein. She recalled that on 13th October, 2023 at around 3.00 a.m. her father went to her bedroom and started touching her on her back. He thereafter forced her to go with him into his bed room and threatened to stab her if she refused. In fear, she went with him to his room, he removed his clothes and her clothes; he removed her panty and had sex with her without protection. Upon finishing he told her to go back to her room. The following day she went to school but did not tell anyone given that it was her first time to have sex. The following day his father had sex with her again. He used to sleep in the same room with her siblings in the same house but they never saw her leave the room at night. Later she stopped seeing periods. She was taken to hospital by her grandmother. Urine tests were carried out and was told that she was pregnant. She however did not tell her grandmother how she got pregnant. Later she went to school where she disclosed to the Divisional Education Officer that it was the Appellant who had impregnated her. She insisted that she had never had Sex intercourse before. 7. During cross-examination by the Appellant; she disclosed that at the time of the incident it was only his brother who was present at home out of his two siblings. She stated that she saw the kitchen knife the appellant held threatening to stab her if she did not follow her to his bedroom. She stated that she was afraid to tell her grandmother or anyone that her father had defiled her. She stated that her grandmother took her to her school where she told the Divisional Education officer that it was the appellant who had defiled her. 8. PW1 was one Isaac Omwenga a clinical officer at Nduru Sub-County Hospital. He testified that on 11th January, 2024 he received a child by the name JKM aged 15 years, the complainant herein with a history of being defiled by her father in 2023. She reported to him that she had been defiled twice by the father who threatened her not to report. Upon examining the complainant, he discovered there was a palpable mass at her abdomen approximately twelve weeks old. The complainant was subjected to urinalysis, HIV test which was found to be negative and pregnancy test which was found to be positive. He concluded that the child was defiled and was pregnant. He thereafter proceeded to book https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 2

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the complainant for anti-natal clinic. He produced treatment notes, Lab request form, PRC and P3 form as PExh-1 to 4 respectfully. 9. When cross-examined by the appellant, PW1 stated that they normally approximate the age of pregnancy in three ways which are; by physical appearance, ultra sound and use of her last monthly period. He stated further that the complainant told him that he has regular monthly period. 10. PW3 was DN, the complainant’s grandmother. She stated that 8th January, 2024 she went to her daughter’s home at Nyandhiwa where she was told by her daughter’s mother-in-law that she, the complainant who is her grandchild was unwell. She took her to hospital where it was established that she was pregnant. The complaint told her that it was the father who had got her pregnant. She thereafter went to report the matter at Nyamarambe Police station. 11. During cross-examination she stated that the Appellant’s mother called her and informed her that the complainant was unwell and that she wanted to send to complainant to her. Her daughter, also called her and informed her that her mother-in-law had taken the complainant to hospital. She stated further that the Appellant’s mother had told her that it was a form 4 student who had impregnated her while the complainant stated that it was the father who had impregnated her. When she together with the appellant sat down the complainant, she insisted that it was the appellant and not the form 4 student who had impregnated her. She stated too that Appellant mother was not willing to take the child to hospital. She insisted that she did not say that he committed the offense but it was the complainant who had implicated him. She stated the mother the child was not around and that she was the one currently taking care of the children. 12. PW4 was PC Moleen Adhiambo, the investigating officer in the matter. She stated that on 11th January, 2024 a complainant JKM was brought to the station by her grandmother, DN alleging that the appellant who is her father defiled her. She recorded the statements of both the accused person and her grandmother and proceeded to take the minor to Nduru Hospital. She stated that the complainant was 15 years old as per the age assessment report given that she did not have a birth certificate. She produced the age assessment report as PExh-5. She proceeded to state that she visited the scene of crime where he discovered that the appellant had separated with the wife in May, 2021 who left him with the 3 kids. The complainant sleeps with her younger brother. 13. PW4 stated further that on 13th October, 2023 at 3.30 am the appellant went to the children room, woke her up; took her to his room; undressed her; removed her pant and had sex with her without protection. In the same month, he again went to the children room; woke up the complainant; took her to his room and once more had unprotected sex with her. After compilation of all witness statement and evidence the accused person was arrested and charged in court with offense of incest and indecent act with a child. 14. During cross-examination she stated that she got the history of the appellant from his mother. She stated that she was not a doctor to investigate the pregnancy. She disclosed that the appellant’s wife came back on 3rd November, 2023 and left for the 2nd time on 18th November, 2023. She stated too that victim had been living with appellant. She stated that the appellant’s mother was not responsible given that she wasn’t ready to report the incident. She denied knowing the incidents between 11th January, 2023 and 31st January, 2024. She confirmed that the accused person was arrested by PC Abuga in the company of the assistant chief. She reiterated that it was the doctor who confirmed that the minor was pregnant and that it was the minor who stated that the appellant used to sleep with her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 3

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15. On 27th February, 2024 the trial court found that the prosecution had established a prima facie case against the Appellant and proceeded to place him on his defense under section 211 of the Criminal Procedure Code. 16. On 5th March 2024, the Appellant testified on oath. He stated he is a mason by profession. He stated that around the first week of October, 2023 he was sick and admitted at Bosongo Hospital. He was discharged on 22nd October, 2023. Later he got a job for a month and did some shopping for his children. He stated that the children stay with her mother. He claimed that on 13th January, 2024 when he arrived home from work, he heard his door being knocked. Upon opening police officers entered into the house, without informing him what the problem was, they hand cuffed him. Later he was surprised to be informed that he had committed an offense of incest. 17. Upon assessing the evidence of both the prosecution and the Appellant, the trial court entered a judgment on 19th March, October, 2024 wherein it found the accused person guilty as charged and sentenced him to serve 30 years imprisonment. Hearing Of The Appeal 18. On 31st October, 2024, this court directed that the Appeal be disposed of by way of written submissions and granted parties 14 day to file and serve their written submissions. On 25th February both parties confirmed that they had filed their written submissions. The Appellant’s Submissions 19. The Appellant submitted the trial court denied him the right to fair trial by not according him the right to legal representation. He contended that the trial did not even make effort any of reminding him of such a right given the seriousness of the offense nor did it ask him whether he was in a position to afford one. 20. The Appellant further submitted that the trial court erred in not according him a fair hearing given that the language that was used during examination of the witnesses was not captured on the record of the court nor was the accused person asked about the language he was comfortable with during the trial. He thus underscored that there was no evidence to demonstrate that the evidence by the prosecution was tendered in a language that was understood by the accused to warrant the conviction and the subsequent sentencing of the accused person for 30 years in prison. He relied in the case of Criminal Case No. 44 of 44 of 2018; AMO VS Republic. 21. He argued too that section 89 of the Criminal procedure code provides that the language to be used during the trial must be indicated in the trial. He argued that the fact that the accused person managed to cross examine all the witness did not mean that he understood the language that was used during the trial. 22. The appellant equally submitted that the prosecution failed to prove the charge beyond reasonable doubt as it failed to carryout DNA test to ascertain whether the appellant impregnated the minor. To buttress this point he referred this court to section 36(1) of the Sexual Offences act as well as the Court of Appeal decision in the case of Robert Muringi Mumbi Vs Republic (2014) eKLR. 23. He contended that the evidence tendered by PW2 was a mere fabrication that was created by PW3 the minor’s grandmother who wanted punish for domestic dispute he had with the minor’s mother who was his wife. He contended that it did not have to take such a long time for the minor to disclose the incidence if at all the narration was to be believable. He claimed that the minor’s averment that she had only had sex with him was a lie because there was no medical evidence that linked him to the act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 4

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The Respondents’ Submissions 24. The learned counsel for the Respondent submitted to prove the offence of Incest the elements required are: -the age of the complainant and the existence of a relationship, whether there was penetration and that the appellant was the perpetrator. 25. On the first issue of age and relationship, the learned counsel submitted that the Appellant was charged under Section 20(1) of the Sexual offences Act, it provides that if the complainant is less than 18 years of age then the Appellant is liable to life imprisonment. He contended that the age of the complainant was assessed, the age assessment report produced by PW4 as Pexh 5 which indicated that she was 15 years old. He contended further that the said evidence was corroborated by the Doctor PW1 who stated that the child was l5 years old at the time she was examined. He thus concluded that the age of the child was sufficiently proved. 26. On the element of the relationship between the Appellant and the child, the learned counsel argued that it was not disputed that the appellant was the child's father. On whether penetration occurred; the learned counsel submitted the Child, PW2 testified and a gave a detailed account of how on the night of 13th October 2023 the appellant took her to his bedroom and penetrated her vagina, which act was repeated the following day. He submitted further that the child's evidence was corroborated by the Clinical officer, PWl, who testified that upon examining the child he found that she was pregnant and concluded that she was penetrated. He thus concluded that the issue of penetration the prosecution proved this element to the required standard. 27. On identification of the appellant as the perpetrator; the learned counsel argued that child, who testified as PW2 revealed that the Appellant who is her father forcefully took her to his bedroom and defiled her. He submitted further that the appellant was properly identified as the perpetrator. 28. Regarding the Appellants claim that the trial court did not comply with Article 50(2) g and (h) of the Constitution, the learned counsel drew this court to decision of the Court of Appeal. The Supreme Court in the case of R VS Karisa Chengo and 2 OTHERS (Petition No.5 of 2015) 2017KESC (15) KLR where the Supreme Court held observed as follows; “ We must however emphasize the fact that in accordance with the language of the Constitution, this particular right is not open ended. It only becomes available if substantial injustice would otherwise result" 29. The learned counsel submitted that from the proceedings it is evident that no substantial injustice was occasioned since the appellant fully participated in the prosecution hearing, cross examined all prosecution witnesses and conducted his defense. The learned counsel equally relied on the decision of the Court of Appeal in Manyeso a Republic (Criminal Appeal 12 of 2021) 2023 KECA827 where the court in dealing with the said sated as follows: “ However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2) (g) and 50(2) (h) of the Constitution were violated." 30. The learned counsel thus contended that the appellant did not raise the issue of legal representation before the trial court thereby cannot claim that the trial court erred. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 5

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31. Regarding the appellant’s claim that the sentence of 30 years imprisonment was highly harsh and punitive, the learned counsel submitted that appellant was to the contrary sentenced to a very lenient sentence, the appellant was charged under Section 20 (1) of the Sexual Offences Act which prescribes a sentence of Life imprisonment. He contended therefore that the said claim was not supported by the law. The learned counsel relied in the case this court on the Supreme Court decision in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) A 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2020) in which the Apex court instructively affirmed the duty of the courts to sentence based on the provisions of the Sexual Offences Act. The learned counsel thus urged this court to enhance the sentence. Issues Of Determination 32. Having considered the Application, the Petition of Appeal, the response thereto, the evidence tendered at the lower court, the impugned judgement of the lower court and the submissions by the parties as summarized hereinabove the issues for determination are; a. Whether the appellant was accorded the right to fair hearing during the proceedings at the trial court. b. Whether the prosecution proved the elements of the offense of incest contrary to section 20(1) of the Sexual offense Act. c. Whether the sentence of 30 years imprisonment meted upon the Appellant was excessive or whether the same is below the mandatory provision of the proviso to Section 20(1) of the sexual offences Act and ought to be enhanced. Whether the appellant was accorded the right to a fair hearing during the proceedings at the trial court. 33. One of the grounds of Appeal was that the judgement of the trial court was nullity because the applicant was not accorded a right to be represented by an advocate of his choice as provided for under article 50(2) (g) of the constitution. In his submission he added that the trial court did not inform him the existence of the said right. 34. Articles 50(2)(g) of the Constitution provide thus: (2) Every accused person has the right to a fair trial, which includes the right(g) 35. to choose, and be represented by an advocate, and to be informed of this right promptly Section 43 of the Legal Aid Act also imposes a duty on the court, before whom an unrepresented person is presented in court, especially for plea-taking, to comply with article 50 (2) (g) and (h) of the Constitution, by informing that person of his right to legal representation of his own choice, and where substantial injustice is likely to arise, to inform him of his right to be assigned an advocate by the state, and where the accused is found to require such aid, to inform the National Legal Aid Service to provide legal aid service to the accused person. Section 43(1A) of the Legal Aid Act, provides that in determining whether substantial injustice is likely to occur, the court should take into account the severity of the charge and sentence, the complexity of the case, and the capacity of the accused to defend himself. In the case of Manyeso v Republic [2023] KECA 827 (KLR), the Court of Appeal was faced with a similar situation and held that; “The appellant participated in the trial and duly cross-examined the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 6

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witnesses in the lower court, and it was not evident that he suffered any or any substantial injustice.” I have equally perused the record herein and I note that the appellant duly cross-examined all the witnesses herein and thus no substantial injustice was suffered by him. The appellant was thus accorded fair hearing in the lower court. 36. On whether the prosecution proved the elements of the offense of incest contrary to section 20(1) of the Sexual offences Act, the ingredients of the offence of incest are that the accused and complainant must be related within the prohibited degree consanguinity; there must be penetration, it matters not that there was consent, age of the victim is crucial where the victim is a minor. Relationship between accused and the victim On the relationship between accused and the victim, PW2 said that she was a daughter to the accused and this was supported by PW3 and PW4. Accused admitted that he is the father to the victim. Accused and the victim are thus father and daughter and thus related within the prohibited degree of consanguinity under section 20(1) of the Sexual offences Act. b. Identification PW2 told the court that she was the appellant is the one who had sexual intercourse with her on 13.10.23 and 14.10.23. She said that on 13.10.23 he went to their room woke her up and forcefully led her to his room removed her clothes and he also undressed had sexual intercourse with her and then asked her to go back to their room. The defence of the appellant was that he was not at the scene at the material time as he was admitted to Bosongo medical center. On the alibi the trial magistrate held that ‘’The Accused raised an alibi defense by stating that he was admitted at Bosongo Medical Center from the first week of October 2023 to the 2nd October 2023, this allegation was not supported by any treatment documents at all which the court expected the accused to produce as exhibits The principle of alibi has long been accepted that an accused person who wishes to rely on a defense of alibi must raise the earliest opportunity to afford the prosecution an opportunity to investigate the truth or otherwise of the alibi. This position was held in Republic v Sukha Singh S/O Wazir Singh Others /1939/ 6 EACA 145, the court of Appeal for Eastern Africa. “If a person is accused of anything and his defense is an alibi, he should bring it forward as soon as he can because, firstly, if he does not bring it forward until months afterwards there is naturally a doubt as to whether he has not been preparing in the interval, and secondly, if he brings it forward at the earliest possible moment it will give prosecution an opportunity.~ of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped". It lies is trite law that the burden of proving falsity, if at all, of an accused's defense of alibi lies with the prosecution. In this case I note that this defense of alibi was raised at the defense hearing and not at the beginning of the trial. Besides, it did not shake the prosecution evidence which clearly placed the Accused at the scene. ‘’ It is my finding that the defense of alibi fails as I consider it an afterthought. ‘’ I have considered the alibi together with the evidence adduced by prosecution. Prosecution still bears the burden of proof even where alibi has been raised. I note that the alibi was first raised during defence and prosecution did not have a chance to investigate it as required by law and no treatment documents were produced to support the said defence. Though the offence https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 7

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occurred at night PW2 said the appellant spoke to her while threatening to stab her if she did not cooperate with him and also asking her to go back to their bedroom upon defiling her in the first instance it has also emerged that the appellant took her again on the following day and had sexual intercourse with her again. The appellant and PW1 knew each other well as they were father and daughter and PW2 identified appellant by his voice which she was familiar with. There was no possibility of a mistaken identity. I find that the evidence of identification adduced by prosecution was firm and consistent. The alibi was rightly dismissed by the Learned Trial Magistrate. The appellant was properly placed at the scene by PW2. c. penetration On whether there was penetration on the vagina of Pw2, PW2 said that the appellant had sexual intercourse with her on diverse dates. Pw2 testified that he examined PW2 at Nduru Sub County Hospital on 11th January, 2024. PW2 had palpable mass at her abdomen approximately 12 weeks old and that the pregnancy test was positive. He produced the P3 form (pexh. 4), the laboratory results (Exhibit No. 2) and the PRC form (pexh. 4). The PRC form and p3 form indicate that PW2's hymen was broken Section 2 of the Sexual Offences Act defines 'penetration as the partial or complete insertion of the genital organs of a person into the genital organ of another person. Therefore, penetration need not to be complete. It is trite law that penetration however slight is sufficient to constitute a sexual offence. The trial court relied on the case of Mark Oiruri Mose vs R (2013) eKLR where the Court of Appeal stated thus: Many times, the attacker does not fully complete the sexual act during the commission of offence. That is the main reason why the law does not require evidence of spermatozoa be availed so long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ. Later the Court of Appeal, then differently constituted, in the ea1e: Ondc1ig v. Republic (2014) eKLR held as such on the aspect of penetration: “In sexual offences the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It not necessary that the hymen be rupture" PW2 told the court that on 13th October, 2023, the accused person had sex with her while they were at home. The accused person went to where they slept armed with a knife took her to his bedroom and he had sex with her. As children, they used to sleep together in one bedroom. Pw2 testified that he examined PW2 at Nduru Sub County Hospital on 11th January, 2024. PW2 had palpable mass at her abdomen approximately 12 weeks old and that the pregnancy test was positive. He produced the P3 form (exhibit NO. 4), the laboratory results (Exhibit No. 2) and the PRC form (exhibit no. 4). The PRC form and p3 form indicate that PW2's hymen was broken. There is overwhelming evidence that there was penetration on the vagina of PW2. d. Age of the victim On the age of the victim, Pw2 said that she was 15 years old at the material time and this is supported by PW3, PW1 and Pw4 and the age assessment report (Pexh 5). Appellant decried that the age of the victim was not proved as the birth certificate was not produced. The age of the victim of a sexual offence is crucial in cases of sexual offences as it has a bearing on the sentences. The trial magistrate was satisfied that the age of the victim was proved to be https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 8

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approximately 15. On proof of age, the Courts have held that apart from a birth certificate, and a baptismal card, age assessment report can also can also be used to prove age of victims of sexual offences. It is therefore not true that the age of the victim was not proved. I find that age of the victim herein was proved to be 15 as rightly found by the trial Magistrate. 37. Upon re-evaluation of the entire evidence on record, I find that prosecution proved its case against appellant beyond any reasonable doubt. 38. On Whether the sentence of 30 years imprisonment meted upon the Appellant was excessive or whether the same ought to be enhanced as espoused by the prosecution. The appellant argued that the 30 years imprisonment imposed upon him is excessive. The state on its part asked the court to enhance the sentence as it was below the minimum provided for under Section 20(1) of the Sexual offences Act. The proviso to section 20 (1) of the Sexual offences Act provides that: 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. In Supreme Court Petition No. E018 of 2023; Republic vs Joshua Gichuki Mwangi and reiterated that section 8 was still valid. The Honourable Justices of the Apex court observed as follows; (66) We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed. (67) This is why, even in the Muruatetu case, this Court was keen to still defer to the Legislature as the proper body mandated to legislate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 9

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While the courts have the mandate to interpret the law and where necessary strike out a law for being unconstitutional, this mandate does not extend to legislation or repeal of statutory provisions. In that regard, we echo with approval the words of the High Court in the case of Trusted Society of Human Rights v Attorney-General and others, High Court Petition No 229 of 2012; [2012] eKLR, at paragraphs 63-64 where it held as follows: “Although the Kenyan Constitution contains no explicit clause on separation of powers, the Montesquieuian influence is palpable throughout the foundational document, the Constitution, regarding the necessity of separating the Governmental functions. The Constitution consciously delegates the sovereign power under it to the three branches of Government and expects that each will carry out those functions assigned to it without interference from the other two.” We reiterate the above exposition of the law and the answer to the two questions under consideration is that, unless a proper case is filed and the matter escalated to us in the manner stated above, a declaration of unconstitutionality cannot be made in the manner the Court of Appeal did in the present case. (68) Our findings hereinabove effectively lead us to the conclusion that the judgment of the Court of Appeal delivered on 7th October, 2022 is one for setting aside. In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. We reiterate that the Court of Appeal had no jurisdiction to interfere with that sentence.” 39. I am well guided by the aforesaid decision of the Supreme Court on the Minimum Sentences in the Sexual offences Act which is binding on this court. The intention of the Legislature was clear in enacting the minimum sentences in sexual offences; i.e to curb the upsurge of the sexual offences in Kenya. The victim herein was proved to be 15 years old and thus the statutory sentence is life imprisonment. 40. The sentence of 30 years imposed for incest with a minor contrary to Section 20(1) of the sexual offences Act was thus below the mandatory life sentence provides for by law. I proceed to exercise the powers of this Court Under Section 354 (3) (b) of the criminal procedure code and enhance the sentence to life Imprisonment as provided for by law. DELIVERED VIATUALLY VIA TEAMS PLATFORM ON THIS 28TH DAY OF MAY 2025 IN THE PRESENCE OF: T.A ODERA JUDGE 28. 5.25 Appellant Mr. Koima for Prosecution Court Assistant -Kinya https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19725/eng@2025-05-28 10

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