Kmk v Republic

4. PW3 and PW4, who were village elders and members of the community nyumba kumi initiative, testified that they received the report on 1ˢᵗ February, 2022. They stated that the initial allegations pointed to another person, the minor named W, but upon inquiry, the Complainant disclosed that the Appellant had committed the act. They facilitated reporting to the police. 5. PW5, a medical officer at Kibwezi Sub-County Hospital, examined the Complainant and produced the P3 form and PRC form dated 5ᵗʰ February, 2022. The examination revealed a broken hymen. The findings were consistent with sexual contact. 6. PW6, the investigating officer, testified that on 3ʳᵈ February, 2022 the complainant was brought to the police station in the company of her parents and village elders. Although an initial report implicated another person, upon interrogation, the Complainant stated that the Appellant had committed the act. Investigations were conducted, statements recorded, and the Appellant was subsequently charged. A birth certificate was produced confirming the complainant’s age as 11 years. 7. At the close of the prosecution case, the Appellant was placed on his defence. He gave an unsworn statement in which he denied the charge and stated that the case was fabricated by members of the community nyumba kumi initiative. He did not call any witnesses. 8. In a judgment delivered on 24ᵗʰ January, 2023, the trial Court found that the prosecution had proved its case beyond reasonable doubt, convicted the Appellant, and sentenced him to ten (10) years’ imprisonment. 9. Aggrieved by that decision, the Appellant lodged a Memorandum of Appeal dated 27ᵗʰ March, 2023 together with a document styled as a “Petition of Application” and an undated Certificate of Urgency. The Certificate of Urgency appeared to be premised on a habeas corpus request to facilitate the prosecution of the application. This was, in any event, overtaken by events. 10. The gist of the Appellant’s appeal is discerned from the Memorandum of Appeal dated 27ᵗʰ March, 2023, wherein he listed the following grounds, to wit: 11. a) That the offence was framed on me b) That the sentence was too harsh for the crime c) That, I would comply with any other option to be given by his Hon Court d) That, I wish the sentence to be reduced or a non-custodial sentence imposed and I be set at liberty Notably, whereas the matter was registered as a miscellaneous application, it is apparent to the court that the matter is a substantive appeal against conviction and sentence. Submissions 12. The Appellant did not file written submissions. 13. The Respondent filed submissions opposing the appeal. Counsel submitted that the prosecution proved its case to the required standard and that the conviction was safe. 14. On the question of proof, it was submitted that the evidence on record established penetration and that the Appellant, being the father of the complainant, fell within the prohibited degrees under section 20 of the Sexual Offences Act. Counsel relied on JKM v Republic [2020] eKLR in outlining the elements of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5235/eng@2026-04-13 2

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15. It was further submitted that the Complainant’s evidence was sufficient to sustain a conviction, and reliance was placed on Section 124 of the Evidence Act as well as the decisions in Joseph Mwangi v Republic [2015] eKLR and GOA v Republic [2018] eKLR for the proposition that a Court may convict on the sole evidence of a victim in such offences where the Court believes the evidence to be truthful. 16. On identification, it was submitted that the Appellant was properly identified, the Complainant being his daughter, and that there was no possibility of mistaken identity. 17. Counsel also submitted that there were no material inconsistencies in the prosecution case, and that any minor discrepancies did not go to the root of the case. Reliance was placed on Erick Onyango Ondeng’ v Republic [2014] eKLR and Twehangane Alfred v Uganda on the treatment of inconsistencies. 18. On sentence, it was submitted that the term of ten (10) years’ imprisonment was lawful, being within the statutory framework under Section 20 (1) of the Sexual Offences Act. Counsel urged that the sentence was proper and further invited the Court to consider enhancement of the sentence to life imprisonment given that the complainant was aged 11 years. Reliance was placed on PMM v Republic [2018] eKLR. 19. Counsel therefore urged the Court to dismiss the appeal in its entirety. Analysis & Determination: 20. This being a first appeal, this Court is duty bound to re-evaluate the evidence on record and arrive at its own independent conclusion, bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 21. In Okeno v Republic [1972] EA 32, the Court held as follows: “ 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. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 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 findings and conclusions; 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 v. Sunday Post, [1958] E. A. 424.” 22. The Court has therefore reconsidered the evidence on record, the grounds of appeal and the submissions by the Respondent. From the foregoing, the issues that arise for determination are: a) Whether the elements of the offence were proved; b) Whether the Appellant’s defence raises any doubt; c) Whether the sentence imposed was lawful and appropriate. a) Whether the elements of the offence were proved https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5235/eng@2026-04-13 3

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23. The offence under Section 20(1) of the Sexual Offences Act provides that: “ 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 that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life…” 24. In FOD v Republic [2014] eKLR, Majanja, J. (as he then was) held that: “ While in the case of incest, the prosecution was only required to prove either penetration or an indecent act, in defilement the prosecution was required to prove penetration. The additional element of the relationship between the accused and the child is what makes the offence incest.” 25. Further, in MG v Republic (Criminal Appeal E051 of 2021) [2022] KEHC 14454 (KLR) (27 October 2022), Mativo, J. (as he then was) held that: “ Thus the ingredients for the offence of incest are: 26. i. Proof that the offender is a relative of the victim. ii. Proof of penetration or indecent Act. iii. Identification of the perpetrator. iv. Proof of the age of the victim.” Similarly, in NLZ v Republic (Criminal Appeal E047 of 2024) [2025] KEHC 10236 (KLR) (11 July 2025), Thande, J. stated that: “ In order to establish the offence of incest, the prosecution must prove first, that the assailant is a relative of the victim; second, that there was penetration or indecent act; third, that there is positive identification of the perpetrator and finally, proof of age of the victim…” On age of the complainant: 27. The complainant testified that she was aged 11 years. A birth certificate was produced in evidence confirming the same. 28. In Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, the Court of Appeal stated: “ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….” 29. In the present case, the age of the complainant was proved by documentary evidence being the minor’s birth certificate and was not disputed. This Court is satisfied that the Complainant was aged 11 years at the material time. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5235/eng@2026-04-13 4

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On penetration: 30. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. 31. PW1 gave evidence of what transpired. She stated that the Appellant: “ removed ‘hiyo kitu yake. Hiyo kitu ni ya kurape watu. It is penis.’ He then removed my clothes… He placed his penis in my vagina. He did not insert it fully.” 32. The Court notes that the description given by PW1 is clear as to the act complained of and falls within the statutory definition of penetration. Her evidence was supported by PW5, the medical officer, who examined her and noted that there was evidence of penetration. The P3 form and PRC form were produced in evidence. 33. In Bassita Hussein v Uganda, Supreme Court Criminal Appeal No. 35 of 1995, the Court stated: “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s evidence and corroborated by medical evidence or other evidence.” 34. In the present case, the evidence of PW1, taken together with the medical findings, establishes penetration. Identiffcation: 35. On identification, PW1 testified that she was in the company of the Appellant on the material night when the events in question occurred. She stated that it was the Appellant who led her from her aunt’s place, accompanied her to the shop and thereafter diverted her into a bush where the act took place. 36. The Court notes that this is a case of recognition as opposed to mere identification. PW1 knew the Appellant as her father. There was therefore no possibility of mistaken identity. 37. Further, although there was an initial mention of another person, namely the minor named W, PW1 explained in her evidence that she had been instructed by the Appellant to name that person. Upon subsequent disclosure to PW2, PW3, PW4 and PW6, she consistently identified the Appellant as the perpetrator. The evidence of PW3, PW4 and PW6 corroborates that the initial report was corrected upon further inquiry. I am persuaded that there was a basis for W’s name coming up and that the evidence pointed to the appellant as the assailant. 38. On the relationship between the complainant and the Appellant, PW1 testified that the Appellant was her father. This was confirmed by PW2. The Appellant did not controvert this position in his defence. 39. In NLZ v Republic (Criminal Appeal E047 of 2024) [2025] KEHC 10236 (KLR) (11 July 2025), Thande, J. stated: “ The relationship between the Complainant and the Appellant is not disputed. The Complainant stated that the Appellant was her father… This was not disputed by the Appellant…” 40. As in the above, the relationship was clearly established and was not disputed. Accordingly, this Court is satisfied that the Appellant was properly identified and that the element of relationship was proved. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5235/eng@2026-04-13 5

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The Appellant’s defence: 41. The Appellant gave an unsworn statement in which he denied the charge and stated that the case was a fabrication by members of the community nyumba kumi initiative. The trial Court considered that defence and rejected it. 42. This Court has re-evaluated the same. The allegation of a frame-up was not supported by any evidence. No motive was suggested for why the complainant, her mother, village elders, and the investigating officer would conspire against the Appellant. Akin to the finding of the Court in Kogo v Republic (Criminal Appeal E045 of 2021) [2022] KEHC 2957 (KLR) (5 May 2022) (Judgment), I would also observe that: “ The appellant claimed to have been framed by the lady who works for the complainant because she had wanted him to work for somebody else but he refused. He never put this question to the prosecution witnesses. It was an afterthought. He then went further to state that he was framed because he was of another tribe but again that come later and it really is baseless. Having examined all this evidence on record afresh, I arrive at the same conclusion as the trial court. The trial court which had an opportunity to observe PW1’s demenour believed her as a truthful witness. I find that the appellant committed the offence of defilement as alleged, the same having been proved beyond reasonable doubt. I affirm the conviction.” 43. Further, the defence did not address the specific evidence placed before the Court, and in particular, the account by PW1 and the medical findings by PW5. In the circumstances, the Appellant’s defence amounts to a bare denial and does not raise any reasonable doubt in the prosecution case. On sentence: 44. The Appellant was sentenced to ten (10) years’ imprisonment. Under Section 20 (1) of the Sexual Offences Act, where the Complainant is under the age of eighteen years, the offender is liable to imprisonment for a term of not less than ten years and which may be enhanced to life imprisonment. 45. In PMM v Republic [2018] eKLR, the Court held that: “ …the sentence for incest is predicated upon the age of the complainant. If the complainant is an adult… the court has discretion to mete a sentence of not less than ten years. If the complainant is under eighteen years of age the court has discretion to mete a sentence of up to life imprisonment…” 46. In the present case, the complainant was aged 11 years. The sentence of ten (10) years imposed by the trial court was therefore within the law and represents the minimum sentence prescribed. 47. Indeed, there is no demonstration that the trial court acted on wrong principles or overlooked material factors. This Court finds no basis to interfere with the sentence. 48. As regards enhancement, although the Respondent invited the Court to consider enhancement to life imprisonment, there is no cross-appeal before this Court. In the circumstances, and in the absence of any demonstrated error on the part of the trial court, this Court declines to interfere with the sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5235/eng@2026-04-13 6

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49. On the issue of time spent in custody, Section 333 (2) of the Criminal Procedure Code obligates a sentencing Court to take into account the period an accused person has spent in custody prior to sentence. The said section provides that: “ Subject to the provisions of section 38 of the Penal Code, whenever a person is sentenced to imprisonment for an offence, any period which he has spent in custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.” 50. The record shows that the Appellant was arrested on 3ʳᵈ February, 2022 and remained in custody until 24ᵗʰ January, 2023 when he was sentenced. That period ought to have been taken into account by the trial Court. To that extent, this Court directs that the said period be considered in computing the sentence. Disposition: 51. In the end, the Appellant’s appeal against the conviction and sentence meted by the trial Court is without merit and is hereby dismissed. 52. However, the sentence shall be computed in accordance with Section 333 (2) of the Criminal Procedure Code, taking into account the period of eleven (11) months and twenty-one (21) days that the Appellant spent in custody prior to conviction and sentence. 53. It is so ordered. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 13TH DAY OF APRIL, 2026. ………………………… HON. C. KENDAGOR JUDGE In the presence of: Court Assistant: Beryl Appellant – present Ms. Musango, ODPP https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5235/eng@2026-04-13 7

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