Joo v Odpp

B. Appeal 4. The appellant dissatisfied with the judgement of the trial court filed a petition of appeal dated 12th August 2025 and through his petition and written submissions based the same on the following summarized grounds, THAT: a. The Learned Trial Magistrate erred in law and in fact in finding and/or holding that the Appellant was guilty of the offence charged when the prosecution had not established guilty beyond the required standard of proof. b. The Learned Trial Magistrate erred in law and fact by totally disregarding submissions by the defence, dismissing the sworn evidence adduced by the appellant. c. The Learned Trial Magistrate erred in law and fact by convicting the appellant and thereafter sentencing him for the offence charged, notwithstanding that the prosecution’s case was riddled with contradictions, inconsistencies and fabricated evidence, resulting in selective judgement. d. The Learned Trial Magistrate erred in law and fact by evidently shifting the burden of proof to the accused person to prove his innocence. e. The learned Trial Magistrate erred in law and fact in convicting the appellant without analyzing the evidence of the witnesses. f. That the sentence meted out on the Appellant is excessive and harsh in circumstances. 5. The Appellant relied on his written submissions where he urged the court to allow the appeal, quash the conviction and set aside the sentence. He based his arguments on the fact that the prosecution had failed to prove beyond reasonable doubt the element of penetration, the complainant’s age and identity of the perpetrator. 6. The prosecution on their part, at the mention of the appeal on 21st May 2026, indicated to the court that the State had filed a notice of concession on the grounds that there were material contradictions on the issue of penetration and as such were conceding the appeal. The Respondent therefore did not file any written submissions. C. Analysis of the Appeal 7. I take note of the concession by the prosecution but as a first appellate court, I am obligated to independently analyse, scrutinize and evaluate afresh the evidence adduced by the trial court and come to my own conclusion taking due regard that I do not have the advantage of seeing and hearing the witnesses. (See Pandya V Republic (1975) EA 336, Okeno v. Republic (1972) EA 32, and Shanital M. Ruval V. Republic (1957) EA 570). 8. The Office of the Director of Public Prosecution has the constitutional leeway to concede an appeal, however its not binding to this court which has to independently appraise the evidence and law at the trial court and come to its own conclusion. (See Godfrey Ngotho Mutiso v. Republic, Cr. App. No. 17 of 2008). I will hence take the concession as persuasive but not binding on this court. 9. At the trial court the prosecution presented four witnesses. PW1 who is the complainant’s mother and appellants wife who testified that the complainant is her daughter and that on the 3rd of April 2021, she was brought home bleeding by a woman named Doris. She testified that her daughter told her she was playing with another child when a nail pricked her. PW1 indicated that the father-in-law Joseph https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7488/eng@2026-05-29 2

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Ongera told her to warm water and wash the child and when she objected, he abused her and picked a panga. 10. PW2 the complainant and minor witness, following several attempts to take her testimony, and subsequent to adducing voir dire examination, gave an unsworn testimony that on the 3rd of April 2021, her father took her to the bushes, removed her clothes, then removed his halfway the did to her tabia mbaya. PW2 stated that he lay me on the ground then lay on top of me, he then told me not to tell anyone that if I told anyone he will kill me. PW2 indicated that after he finished, he left her in the bushes, then went home. He left her crying because she was in pain. She testified that a neighbour known as Doris came and found her crying, bleeding from her private parts and that this named Doris carried her home. 11. PW2 further stated that her father told her mother to wash her and take her to hospital. On cross examination, PW2 changed her narrative and stated that she was with a girl MK and that she fell on a nail which pricked her on her private parts, that Doris found her crying and that she told her that she had been pricked by a nail. She stated that it is this neigbour Doris who told her to say that her father had been defiled her but it was not true. 12. PW3, a senior clinician, testified that the notes from KTRH indicated the complainant’s external genitalia and left labia majora were swollen and lacerated. He testified that the victim was bleeding from the genitalia and her clothes were blood stained. He stated that the samples were taken to the lab for examination. He further stated that the notes indicated that it was not possible to examine the minor due to the pain but that she was the next day taken to the theatre and examined and treated under general anesthesia. 13. PW3 indicated that the complainant had a vaginal tear at 6 o’clock which was actively bleeding. The cervix was intact and the injuries were about 3-4 days. He concluded that the injuries may have been caused by an erect penis and that the findings based on the history and the physical findings were consistent with the alleged offence. On cross examination, he stated that he prepared the p3 form, three to four days after the incident, and that it was probable that an erect penis caused the injuries which is why he used the word “may”. 14. PW4, the investigating officer testified that she was called to Marani Sub-County hospital on 3rd of April 2026, where she spoke to the child who confessed that she had been defiled by the father who had warned her not to say what happened and to state it was a nail that had pierced her. She testified that the child was referred to KTRH for further treatment and that she visited again the minor on the 6th of April 2021 and recorded her statement as well as that of her mother. 15. PW4 stated that the child was bleeding so much and that she took the clothes that she had at the time of the incident from her home and adduced the same as evidence. PW4 stated that since the age could not be ascertained, the complainant was taken to KTRH where her age was assessed to be 10 years. PW4 stated that the accused was arrested in Nakuru on 11th of April 2021, brought to the station and arraigned in court the same day. 16. The defence called one witness the appellant who testified that on the 3rd of April 2021 he was with his child, a minor named Julius who was playing with another child but was thrown and fell on a piece of wood. He stated that he found him injured, carried him and placed him aside so that he could tie the cow. DW1 stated that his father came and asked why he was taking long. He went back with the minor and told the mother to wash the wound. 17. DW1 further stated that the mother took the child to Marani Hospital where they said the minor had been raped. The child was then taken to KTRH and it was then that he was arrested for defiling the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7488/eng@2026-05-29 3

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minor. He denied participating in the injuries of the minor. On cross examination, he stated that the minor fell on a nail while with him. He gave the name of the child and that he was his second born. He affirmed he was with the child when he got injured playing with another. He stated that it is his father who came and took the child home after the incident that injured the minor’s private parts and tore the trousers. 18. I have carefully and thoroughly read the entirety of the record at the trial court and appeal as well as the appellant’s submissions and authorities relied on. Subsequently, I have summarized the following as the main issues for the determination of this court as follows; a. Whether the contradictions in the witnesses at the trial court negates the entirety of the prosecution case b. Whether there were procedural issues that prejudiced the appellant and his rights to a fair trial c. Whether the offence of incest was proved beyond reasonable doubt d. Whether the sentence meted is commensurate to the offence a. Whether the contradictions in the witnesses at the trial court negates the entirety of the prosecution case 19. The element of contradictions, inconsistencies and fabricated evidence has been adduced by the appellant in his appeal and must be addressed. I have analysed this against my evaluation of the record at the trial court. In doing so, this court is balancing the intricacies of this case involving a vulnerable witness with the accused being his father, the best interests of the child as well as the appellant’s rights under Article 50 of the Constitution of a fair hearing. 20. A thorough reading of the record at the trial court indicates a pattern of intimidation and fear. PW1 indicated that when the complainant was brought home, blood soiled, she was instructed by her fatherin-law to wash her and upon her objection, he abused her and picked up a panga. I further note the records of proceedings at the trial court indicate that the complainant was visibly shaking and traumatized upon seeing the appellant and was unable to take the witness stand thrice in a row. Indeed, the prosecutor indicated to the court that the complainant was traumatized and had extreme phobia of the appellant. From the judgement of the trial magistrate, it is indicated that the mother ran away from her home. 21. Further, the trial court itself noted that the child witness had severally gone mute in the course of proceedings. The complainant in her testimony stated that the appellant told her he will kill her if she told anyone what had happened. The testimony from PW4, the investigating officer, also states that when she went to interview the complainant on the 6th of April 2021- four days later, she confessed to being defiled by her father but he had warned her not to say what had happened and to instead state that a nail had pierced her. 22. Taking note of the above pattern, the nature of the offence and the age of the complainant, my analysis of the credibility of the prosecution’s case, is in totality of the whole record at the trial court and not in isolation of one testimony or evidence. My conclusion therefore is that the contradictions noted do not negate the entirety of the credibility of the prosecution’s case when weighed against other forms of evidence adduced at the trial court that corroborated the offence. 23. With this background, I now proceed to analyse and evaluate the other issues for determination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7488/eng@2026-05-29 4

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b. Whether there were procedural issues that prejudiced the appellant and his rights to a fair trial 24. The appellant is his memorandum of appeal raises several issues that he alleges compromises his rights of a fair hearing under Article 50 and which I will evaluate against the law and evidence on record. First, the appellant states that that the Trial Learned Magistrate erred in both law and fact as the recording of the proceedings of the trial court caused anxiety in the following days of the hearing of the coram. He proceeds to give the illustrations of the coram recording on 30th May 2024. Having looked at the coram as recorded in the proceedings on that particular day of 30th May 2024, I see no glaring defects that would cause anxiety or prejudice to the appellant. 25. The appellant further raises the question of whether the defendant was put on oath, what language was the oath and evidence given in, the effect of evidence not given on oath, and that it amounts to a mere statement of no probative value to the case. 26. My analysis of the trial court recordings of proceedings indicate that the testimony of the appellant was under oath. The language used was however not indicated. The question then would be was this prejudicial to the appellant’s case and to answer that would be to look at the following aspects; Was the appellant able to have a coherent interaction with the court and was there any complaint raised about interpretation. From my reading of the appellant’s testimony on record, the only issue was that he referred to the minor as a boy but the rest of the information was coherent and in tandem with what the other witnesses had testified. 27. Similarly, the appellant questions the language and oath used on PW4. My analysis of the recordings on 11th of July 2024 when PW4 gave evidence indicates the interpretation was in English/ Swahili. 28. Section 382 of the Criminal Procedure Code provides that “ Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial………… unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings." ( emphasis added) 29. Although there were omissions in the trial recording on the language used during the defence testimony, I am not persuaded that this omission occasioned any prejudice to the appellant. In addition, the accused was represented by defence counsel who never raised any objection. 30. The appellant further states in his petition that the Learned Trial Magistrate erred in law and fact on account that PW2 confessed to PW4 that she had been defiled by her father and the very confession was not made available to the court. My reading of the trial record indicate that this aspect was indeed tendered openly during the trial at the testimony of PW4 and the appellant who was represented by counsel had full opportunity to object, cross examine or challenge the evidentiary value and admissibility. 31. The appellant in his written submissions raised the issue of the failure of the prosecution calling in key witnesses namely Doris and an eye witness. In evaluating this against the entirety of the evidence adduced at the trial court, I am guided by the fact that it is trite law that the prosecution is under no obligation to call a multiplicity of witnesses where the evidence tendered sufficiently proves the charge https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7488/eng@2026-05-29 5

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beyond reasonable doubt. In the case of Julius Kalewa Mutunga v. Republic (2006) eKLR the court stated that: “ The fact that some witnesses were not called does not necessarily mean that the prosecution case was weak. What is important is whether the evidence on record was sufficient to prove the case” (See Keter v. Republic (2007) 1 EA 135 and Bukenya & Others v. Uganda (1972) EA 549) 32. This is further buttressed by Section 143 of the Evidence Act, Cap 80. Which provides that; “ No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact” 33. The appellant further claims that the Learned Trial Magistrate did not properly analyse and evaluate the evidence and disregarded the appellant’s sworn statement. This court has independently revaluated the trial record in its entirety as guided by the case of Mark Oiruri Mose V. Republic (2013) eKLR where it was stated that; “ …the role of this appellate court of first instance is well settled…. this court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it, and come to its own conclusions but always bearing in mind that the trial court had the advantage of observing the demeanor of the witness…. 34. I therefore find no merit in these arguments under this section. c. Did the prosecution prove beyond the standard of reasonable doubt? 35. Section 2 of the Sexual Offences Act interprets penetration to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” Such can be deduced either by the direct testimony of a witness describing the insertion, genital injuries consistent with sexual assault, treatment notes or where there is no other plausible explanation. 36. My analysis of the trial court record indicates the complainant in her testimony describing the ordeal as follows; my father took me to the bushes, removed my clothes, then removed his halfway then did to me tabia mbaya…. he lay me on the ground then lay on top of me, he then told me not to tell anyone that if I told anyone he will kill me…. after he finished, he left me in the bushes, then went home. He left me crying because I was in pain. 37. The injuries and condition of the complainant after the incident were not in contention and were corroborated by all the witnesses. What was in dispute is how she sustained those injuries with PW2, PW3 and PW4 stating it was defilement while PW1 (partly PW2) and DW1 stating injury by a nail. I note that the trial court did visit the site and came to the conclusion that it is highly unlikely that the incident could be attributed to an injury by a nail as was being described by the minor. 38. This court has undertaken a comprehensive analysis of the medical records and treatment notes adduced as evidence. The P3 form indicates a swollen external genitalia and labia majora and vulva, a vaginal tear noted at 6 o’clock, actively bleeding from the genitalia in blood-stained clothes, the probable weapon causing the injury to be an erect penis and that the history and physical findings are consistent to the alleged offence. The Post Rape care form (PRC) indicates that the complainant was bleeding profusely, was crying in pain, could clearly remember her ordeal and narrated it in detail. There is no mention about another probable cause being a nail. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7488/eng@2026-05-29 6

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39. In the case of Kamau v. Republic (2025) KEHC 42 (KLR) the courts held that “it is trite law that defilement can be proved not only by medical evidence but also by way of oral and circumstantial evidence.” The testimony in chief of PW2, PW3 and PW4 corroborated by the medical records therefore leaves no doubt in my mind that penetration did occur. 40. The appellant raised the issue of age that was not ascertained. My perusal of the record indicates that an age assessment conducted by a medical doctor placed the complainant at 10 years which is satisfactory to this court. The issue of identity tied with the offence of incest as having not been proved beyond reasonable doubt was also raised by the appellant. An analysis of the trial court record shows no contention on the identity and relationship of the appellant to the complainant as father and daughter and this was corroborated by all the witnesses from the prosecution to the defence. 41. Section 20 (1) of the Sexual Offences Act states 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 is guilty of an offence termed incest.” It therefore fiows that with the identity and relationship not being in question, once the offence of penetration has been proved, then it subsequently validates the offence of incest. I am therefore satisfied that the prosecution at the trial court proved this element beyond reasonable doubt. d. Whether the sentence meted is commensurate to the offence 42. Section 20 (1) of the Sexual Offences Act gives the sentence for the offence of incest as 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... 43. This case has aggravating factors particularly the derogation of the role of a father as a protector. From my analysis on the face of the trial court record, it is clear that there were elements of intimidation and fear. At the time of the offence, the child was assessed to be 10 years old which increases her vulnerability and the long-term effects that this ordeal will have. The mitigating reasons given by the appellant at the trial court is not sufficient to persuade this court to interfere with the sentence meted. This court is therefore satisfied that the sentence of life imprisonment is commensurate to the offence and aggravating circumstances. Best Interest of the Child 44. Having analyzed all the issues raised in the appeal, it would behoove me to address the best interest of the complainant in this case who is a vulnerable child. From the trial court record, there is clearly evidence of physical and emotional trauma with long lasting psychological effect on the child. The injuries sustained in this ordeal are cited in the P3 form as grievous. This being an intimate family issue, then the societal stigma and isolation are bound to occur. It was stated severally in the trial court proceedings that whenever the child saw the parents she shut off and froze- an indication of deep fear and phobia particularly of the appellant. 45. It would be critical to ensure that as this criminal justice process continues, then there are deliberate efforts from the relevant duty bearers to ensure that the best interest of the child is upheld as per Article 53 of the Constitution, the Children’s Act, Cap. 141 and the Judiciary’s Child Justice Strategy 2023-2030. From the trial court proceedings, it is indicated that the child was taken to a children center. Indeed, the Learned Trial Magistrate in her judgement highlighted the risk and safety of the child noting that the mother is said to have run away from home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7488/eng@2026-05-29 7

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46. This court is therefore not merely concerned with determination of criminal liability but equally with safeguarding the constitutional rights, welfare, health, education and security of the complainant in this case who is a vulnerable minor pursuant to Articles 21(3), 23, 53(2) and 165 of the Constitution. (see case of 160 Girls-High Court Petition-CK (a child) & 11 others v. Commissioner of Police (2013) eKLR) 47. I therefore extend the trial court’s order of the victim to continue receiving protection, counselling and health services as well as education at a safe registered children’s rescue home until she is 18 years old. The relevant duty bearers including the State Department for Children Services to undertake periodic visits to ascertain the security and welfare of the complainant and facilitate her education and health rights. The National Gender and Equality Commission to monitor the compliance of this order. Determination And Disposition 48. There is no doubt that a serious ‘injury’’ did occur to the complainant on the 3rd of April 2021. It is also not in contention that the appellant was with the complainant when this injury occurred which places him at the scene of the incident. 49. As to the nature of this injury, though there are contradictions among the witnesses, there is no doubt from the medical records coupled with corroborating evidence from PW2, PW3 and PW4 that the same were of sexual nature. The medical records indeed do not give any other alternative to the probable cause of the diagnosed injuries other that of an erect penis. The trial court itself undertook a site visit to explore the second narrative that the injuries were caused by a nail and ruled out such possibility. 50. There is further, no contention on the relationship between the appellant and the complainant which is that of father and daughter. With regards to the age, whereas the testimonies indicated the complainant to be six years, the age assessment carried out by the consultant radiologist affirmed her to be 10 years which qualified her as a child of tender age. 51. I am therefore convinced that the prosecution proved beyond reasonable doubt the ingredients of the offence of incest contrary to Section 20 (1) of the Sexual Offences Act, Cap. 63A and that the conviction was safe. On the sentence, the trial court exercised proper discretion and I find no basis to interfere. 52. In view of the prevailing, I find that the conviction and sentence of the trial court is well founded in law and fact and as such dismiss the appeal in its entirety. I accordingly uphold the conviction and sentence by the trial court. Orders accordingly. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF MAY 2026 A.M. OKUTOYI JUDGE In the presence of:Mr. Ochoki for the Appellant Mr. Koima for the Respondent Appellant present from Kisii GK Prison Ruth Mokeira-court assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7488/eng@2026-05-29 8

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