Bnm v Republic

2024 at approximately 09:30 hours. The complainant further testified that the Appellant issued lethal threats to ensure her silence and attempted to cultivate her favour by gifting her a mobile telephone. 5. Julius Shivonje Itemete testified that on 22nd May 2024, he was alerted by the complainant's uncle that the minor had been escorted to the hospital following an allegation of defilement. Upon communicating with the mother, he was informed that the Appellant was the primary suspect. PW3 subsequently led a group of residents to the Appellant’s residence, where he was apprehended and escorted to Kangemi Police Station. 6. PW4, Sylvia Khatenje Ayekha, testified that the discovery of the abuse was precipitated by her interception of text messages between the minor and a stranger. While the Appellant initially encouraged the mother to pursue the stranger, the minor subsequently confessed that no sexual relationship existed with the third party. Instead, the complainant revealed a history of protracted sexual abuse perpetrated by the Appellant. PW4 testified that this confession occurred after the stranger had been apprehended, at which point the focus of the investigation shifted to the father. 7. PW2, John Njuguna, a clinician at Nairobi Women’s Hospital, produced medical records following an examination of the minor. He testified to finding an active tear at the 3 o’clock position and a bleeding laceration at the 6 o’clock position of the vaginal wall. These findings were characterized as indicative of recent penetration by a blunt object. Laboratory analysis confirmed the presence of blood in the vaginal swab, 8. PW5 Police Constable Benson Njeri corroborated the procedural history of the case. He confirmed that while there were initial allegations concerning a stranger seducing the minor via telephone, the complainant’s formal statement and subsequent investigations unequivocally identified the Appellant as the perpetrator of the sexual violence. 9. The Appellant’s defence consisted of a denial and an assertion that the complainant had fabricated the allegations to divert attention from her communications with a stranger. He maintained that the charges were a result of a narrative shift by the minor. The court, however, noted the Appellant’s version was unsubstantiated and found the complainant’s testimony to be consistent, credible, and supported by the objective medical findings of acute physical trauma. 10. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 11. The gravamen of this appeal is the contention that the prosecution failed to discharge the burden of proof to the required standard. The essential ingredients for the offence of incest, pursuant to Section 20(1) of the Sexual Offences Act, are: the existence of a prohibited degree of consanguinity between the parties; the age of the complainant; the fact of penetration; and the positive identification of the perpetrator. 12. The first issue concerns the relationship between the parties and the identity of the assailant. PW1 testified unequivocally that the Appellant is her biological father. This was corroborated by the testimony of her mother, PW4, and the subsequent police investigation. The Appellant did not substantively dispute this paternal link, and the court finds that the degree of consanguinity required by statute has been established with certainty. 13. Furthermore, the issue of identification does not arise in the traditional sense of a "stranger" recognition case; the parties resided in the same household, and the complainant was intimately familiar with her father. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2536/eng@2026-02-26 2

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14. Regarding the age of the complainant, while the charge of incest applies to persons of any age within the prohibited degrees, the minor's vulnerability is an aggravating factor. The evidence on record establishes that the complainant was a minor at the material time. This tender age further informs the court’s assessment of the psychological control and lethal threats used by the Appellant to ensure her silence. 15. On the critical element of penetration, PW1 provided a graphic and consistent account of the Appellant’s actions, including the final encounter on 22nd May 2024. This direct evidence was reinforced by the medical testimony of PW2, the clinician from Nairobi Women’s Hospital. The clinical findings, specifically an active 3 o’clock tear and a bleeding 6 o’clock laceration, constitute objective proof of acute physical trauma. These injuries are entirely consistent with recent penilevaginal penetration and negate any suggestion that the allegations were a fabrication. 16. The Appellant’s culpability is further cemented by the circumstances of the disclosure. While the Appellant attempted to shift suspicion onto a third-party stranger contacted via telephone, the medical evidence of fresh bleeding and lacerations synchronises perfectly with the complainant’s testimony of being defiled by the Appellant that very morning. 17. The Appellant’s presence in the house during the mother’s absence provided the requisite opportunity. No plausible explanation was proffered to account for the minor’s acute vaginal injuries while in the Appellant’s sole care. The absence of DNA evidence does not diminish this chain of evidence; the law accepts medical confirmation of recent trauma as sufficient corroboration of a complainant’s credible testimony. 18. In view of the totality of the evidence which comprises the resolute testimony of the victim, the account of the mother, and the forensic certainty of the medical findings, I hold that the prosecution proved its case beyond reasonable doubt. The Appellant’s defence was rightly rejected as an implausible attempt to deflect guilt. Accordingly, the conviction is affirmed. 19. On sentence, section 20(1) provides that a person who commits incest with a person below the age of 18 years shall upon conviction be sentenced to life imprisonment. During sentencing, the court considered the pre-sentence report, the appellant's mitigation, and that he was a first offender and sentenced the appellant accordingly. In the premises, I see no reason to interfere. 20. In the end, the appeal is found to be lacking in merit and is dismissed in its entirety. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 26TH FEBRUARY 2026 D. KAVEDZA JUDGE In the presence of: Appellant Absent Mr. Karanja for the Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2536/eng@2026-02-26 3

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