WOO v Republic (Criminal Appeal E009 of 2023) [2026] KEHC 2136 (KLR) (25 February 2026) (Judgment) Neutral citation: [2026] KEHC 2136 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MIGORI CRIMINAL APPEAL E009 OF 2023 KW KIARIE, J FEBRUARY 25, 2026 BETWEEN WOO .......................................................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (From the original conviction and sentence in S. O. Case No.55 of 2021 of Chief Magistrate’s Court at Migori by Hon. D.O. Onyango– Chief Magistrate) JUDGMENT 1. WOO, the appellant herein, was convicted of the offence of incest contrary to section 20 (1) of the Sexual Offences Act No. 3 of 2006. 2. The particulars of the offence were that on the 17th day of February 2021, in Migori County, being a male person, caused his penis to penetrate the vagina of NAO, a female child aged fifteen years, who was, to his knowledge, his niece. 3. The appellant was sentenced to 10 years’ imprisonment. He has appealed against the sentence. He raised the following grounds of appeal: 4. a. The sentence meted out, although lawful, was manifestly harsh and excessive in the circumstances. b. The trial court overlooked other forms of remedies available to the appellant, such as a noncustodial sentence, as decreed by law, and judicial sentencing policy guidelines. The respondent, represented by learned counsel Melvin Ndombi, opposed the appeal, arguing that it lacked merit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2136/eng@2026-02-25 1
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5. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, noting that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno v Republic [1972] EA 32 to guide my decision-making process. 6. Section 20 (1) of the Sexual Offences Act provides: 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. 7. An appellate court would interfere with the trial court's sentence only where there exists, to a sufficient extent, circumstances entitling it to vary the trial court’s order. These circumstances were well illustrated in the case of Nillson v Republic [1970] EA 599, as follows: The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the members of the court had been trying the appellant, they might have passed a somewhat different sentence, and it will not ordinarily interfere with the discretion exercised by a trial Judge unless as was said in James v Rex (1950), 18 EACA 147, it is evident that the Judge has acted upon some wrong principle or overlooked some material factor. To this, we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case. R v Shershewsity (1912) C.CA 28 T.LR 364. 8. The appellant committed very grave offences. He has not provided any reasons to demonstrate that the learned trial magistrate acted upon some incorrect principle or overlooked some material factor. 9. The upshot of the foregoing analysis of evidence is that I find the appeal has no merit. The same is dismissed. DELIVERED AND SIGNED AT MIGORI, THIS 25TH DAY OF FEBRUARY 2026 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2136/eng@2026-02-25 2
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