Omm v Republic

ii. That the trial court erred in law and fact by failing to see that the prosecution case was founded upon a defective charge. iii. That the learned trial magistrate erred in law and fact by failing to see that the evidence was marred with inconsistencies and discrepancies. iv. The learned trial court erred in law and fact by failing to see that the prosecution case did not meet the threshold of beyond reasonable doubt. v. That the learned trial court erred in law and fact by failing to consider the period spent in remand custody prior to conviction and sentence as required under section 333 of the CPC. vi. That the learned trial magistrate erred in law and fact by failing to consider his defence. Prosecution’s case 6. PW1 SW (minor) the complainant herein testified that she is 15 years. She was born on 1/1/2004. She said that on 12/6/2014 she was at Royal Academy in std 4. In the evening around 5.00pm, she came home and changed her clothes then she went to the kitchen looking for her mother. Her father came, held her hand by force and threw her to the ground. He threatened to kill her if she doesn’t remove her clothes. He threw her on the ground and started removing her clothes. He removed her pant and penetrated her. She said that she bled and felt pain on her private parts. The appellant then told her to wipe herself and take a shower. 7. PW1 stated that her mother then came and found her crying and upon being asked why she was crying she told her that she had disagreed with another pupil in school. She said that on 21/6/2024 she told her mother what had happened. They went to her Kilifi at her aunt’s place. On 23/6/2014 they went to Kilifi sub-county hospital for medical check- up. She said that PRC form dated 23/6/2014 marked as PMFI-2 it was found that her hymen was broken and she was unable to contain urine. They reported the matter to Kilifi Police station where they were referred to Chnagamwe Police station. They reported to Changamwe Police but the police did not act on it and they were told to go home. 8. PW1 stated that on 2015, the family organized for a meeting and agreed that her mother to forgive her father for what he did. After the family meeting her mother agreed to go back home to stay with her husband so that PW1 can proceed with her education. 9. PW1 stated that the appellant used to defile her continuously from 2016, 2017, 2018 until 2019. On 2019 she saw no reason to live. She had lost sense of living. She did not perform well in her KCPE. On 15/9/2019 she went to her friend’s place after the accused had defiled her after which she reported to the police station. 10. PW2 Maura Muna Mwasi stated under oath that the appellant is her husband of about 15 years. They have 2 children the accused is her first born. On 21/6/2024 at about 8.00pm after they had taken supper, the victim informed her that the appellant had sex with her. Pw2 said that the victim told her that on 12/6/2014 at around 5pm the appellant forced her to have sex with him. On 22/6/2014 she left for Kilifi and on 23/6/2014 they went to Kilifi District hospital whereby the victim was examined. 11. She reported the matter at Kilifi Police station but were advised to go back to Changamwe police station which they did but the matter was not brought to court. On 16/9/2019 their daughter ran away from home. On 2/10/2019 the victim called her and informed her that she was being threatened by her and this is when PW2 knew that the victim was still being defiled by the father. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4058/eng@2026-03-19 2

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12. The appellant was arrested and the matter brought to court. On 4/12/2019 the accused was released from custody and came home. He told her that she should not come to court to testify against him or she should be his witness. Pw2 feared for her life and left the home. She said that she went to CLEAR for legal aid. She was then sent to ODPP and she was under witness protection. 13. PW3 Said Dhadho Salim testified under oath and produced the PRC form as EXH-2, P3 form as EXH-4 and treatment notes as EXH-8. 14. The trial court went on transfer and on 11/7/2023 Hon D. Odhiambo took conduct of the matter. Section 200 was complied with and the accused opted to proceed with the matter as it is. 15. PW4 CPL Samuel Kahindi said that he was the investigating officer but had taken the matter from CPL Makau. He said that the victim was 15 years as at the time of the incident. Pw4 produced the birth certificate as EXH-1. He said that the accused used to take advantage of the minor when the mother was away. A similar case had been reported at the station but it was not handled properly. Defence case 16. DWI OM the accused person testified under oath that the complainant is his daughter. The allegations against him are false. He said that his wife wanted to sell his plot and he refused and this led to the wife framing him for this matter. 17. In light of the above the issues for determination before this court are; i. Whether the ofience of incest was proved by the prosecution ii. Whether the appellants defence was credible iii. Whether the sentence was excessive in the circumstances. Analysis and Determination 18. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court 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 v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding 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 witnesses, See Peters v Sunday [1958] E.A 424.” i. Whether the ofience of incest was proved by the prosecution 19. Section 20(1) of the Sexual Offences Act provides inter alia: “ 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, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4058/eng@2026-03-19 3

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aunt or grandmother is guilty of an ofience 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.” 20. From the above, for the ofience of incest to suffice, the prosecution must prove beyond reasonable doubt; - the relationship between the accused and the victim, the indecent act and proof of age. 21. In this case the appellant testified that the victim is his daughter. Section 22 of the Sexual Offences Act, sets out the persons with whom having sex with will amount to incest. These are brother, sister, halfbrother, half-sister, adoptive brother and sister, father, half father, uncle of first degree, mother and half mother and an aunt of the first degree. No doubt the appellant was PW1’s father. Therefore, the two having sex was incestuous. 22. Was there sexual intercourse between the appellant and PW1? It is instructive to note that the ofience of incest is committed by proof of either penetration or an indecent act in terms of Section 20(1) of the Sexual Offences Act. Instantly, PW1 narrated how the appellant defiled her in the kitchen in 2014. The incident was reported at Changamwe Police station. A family meeting was held and the appellant apologized to PW2. 23. The appellant continued to defile the minor until 2019 when she decided to run away from home and reported the matter to the police station. This evidence was not shaken during cross-examination. Despite being taken to court, the appellant threatened the minor and tried to convince PW2 to not testify against him. This evidence is also supported by the testimony of PW3 who produced the P3 and the PRC form and said that the victim had a broken hymen with an old scar indicative of penile penetration. I find that the testimony of the complainant was credible and I have no reason to doubt its authenticity as to what transpired between the appellant and his daughter. 24. On proof of age, the prosecution produced a birth certificate which shows that the minor was born on 1/1/2004 making it 15 years old at the time of the last incident. 25. In light of the above I find that the prosecution proved beyond reasonable doubt the charge of incest against the appellant. ii. Whether the appellants defence was credible 26. The accused in his defense stated that the charges against were brought up by his wife (PW2) who wanted him to sell his plot but he refused. This issue was never raised during cross-examination. It arose during defense hearing thus it was an afterthought. In light of this, I find that the appellant’s defense did not hold water against the prosecution’s case. ii. Whether the sentence was excessive in the circumstances 27. The appellant was sentenced to 15 years’ imprisonment. The minimum sentence that can be imposed upon conviction for the ofience of incest under the Act is 10 years but the same can attract a life sentence. I find that the trial court took into account all the circumstances of the case and proceeded within the required principles in arriving at its sentence hence I do not find reasons to interfere with the sentence. 28. The appeal lacks merit and the same is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4058/eng@2026-03-19 4

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29. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MARCH 2026. WENDY KAGENDO JUDGE In The Presence The Appellant in person Mr Ngiri For The State Bebora Court Assistant SIGNED BY/FOR: HON. LADY JUSTICE WENDY MICHENI https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4058/eng@2026-03-19 5

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