Ahs v Republic

5. Upon trial the appellant was convicted for the offence of incest and sentenced to serve a prison term of 10 years thus the instant appeal. 6. The appellant vide a Petition of appeal dated 16th November 2023 raised the following grounds of appeal: i. That The Learned Magistrate erred in law and fact by failing to consider that essential ingredients and or elements of the offences that the accused was charged with were not proved by the Prosecution. ii. That the Learned Magistrate erred in law and fact in convicting the Appellant without taking into consideration that the charge sheet was defective and was at variance with the evidence. iii. That the Learned Magistrate erred in law and fact by relying only on the evidence produced by the prosecution to implicate the Appellant in the offence despite the glaring contradictions of the said evidence. iv. That the Learned Magistrate erred in law and fact by failing to consider the Appellant's defence, oral testimony and written submissions. v. That the Learned Magistrate erred in law and fact in holding that the medical evidence tendered was truthful and free from the error and doubt without critically observing that the same was not credible in light of the ages of the complainant. Issues 7. The grounds raised by the appellant bring to the fore the following issues for determination: a. Whether the ingredients of the offence of Incest were proved beyond a reasonable doubt. b. Whether the charge sheet was defective and at variance with the evidence tendered. c. Whether there were material contradictions in the evidence tendered d. Whether the defense tendered by the appellant was considered e. Whether the medical evidence tendered was reliable f. Whether the age of the complainant was adequately proved Analysis And Determination 8. The duty of the first appellate court is well settled in Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court 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 vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 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 finding and conclusion; 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11567/eng@2026-01-14 2

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trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.” 9. In line with the duty as stated by the Court of appeal, this court shall proceed to examine each of the issues raised by the appellant in order to determine whether the conviction of the appellant was safe in the circumstances. a. Whether the ingredients of the offence of Incest were proved beyond a reasonable doubt 10. The offence of incest is defined in Section 20(1) of the Sexual Offences Act as: -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 and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person. 11. The courts have applied the definition by the statute in various cases and made useful pronouncements that this court agrees with regarding the ingredients of the offence of incest. In FOD V. Republic (2014) eKLR, Majanja J 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.” 12. Further, in MG v Republic (Criminal Appeal E051 of 2021) [2022] KEHC 14454 (KLR) (27 October 2022) (Judgment), Mativo J (as he then was) held:-“Thus the ingredients for the offence of incest are: 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.” 10. The complainant testified as PW1. She gave evidence that the appellant was her father with whom she lived with in Fino and Eastleigh Nairobi. She gave the name of the father as ALI who is the appellant. According to her, while at Fino he would at times sent her to her aunt’s room to pick something for him in her room, follow her and touch her breasts. 11. The complainant stated that she didn’t know where her mother was at the time. She maintained that in the years 2014 and 2015 the appellant did nothing wrong to her. In 2016 he gave her some medicine which she took and felt dizzy and he had sex with her. She testified further that she bled a lot and she was in pain. 15. She went further and testified that the appellant did not have sex with her once. According to her, he would ask her to take medicine and whenever she refused, he would threaten to kill her. Her evidence was that whenever she took the medicine, she would feel dizzy the appellant would come to her bed and have sex with her. The complainant went further to state that the appellant told her that he had high blood pressure and diabetes and if he slept with her that would help him. 16. She went further to testify that the appellant told her that other women would give him diseases. The complainant later revealed the happenings to Mama Rehema their landlady who in turn informed her brother Athmalek. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11567/eng@2026-01-14 3

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17. According to PW1 when the appellant learned that she had disclosed the matter to Mama Rehema, he beat her up thoroughly and stabbed her on the right hand thumb. On the date the complainant was stabbed she testified that the appellant wanted to have sex with her again. 18. The victim went on to state that the appellant used to chew Miraa. When he cut her and she demanded to be taken to the hospital. The appellant at first declined only for the aunty to send some Kshs. 2,000 which he used to take her to the hospital. 19. PW1 testified that while at the hospital, she narrated to the doctor what had happened while the appellant had stepped out to go and withdraw money. She fled to her aunt’s place and returned to see the doctor after three days when she again told him what had been happening and that is when she was taken to Shauri Moyo Police station where she made a report. The victim was later examined and the necessary medical documents filled. 20. The victim maintained that what she told the court was true and that she did not lie against the father. 21. The appellant in his submissions asserted that the prosecution had failed to prove that the victim PW1 was his relative. This court has carefully analyzed the evidence of the victim and is not persuaded by the appellant’s contention. The paternity of the victim was not denied and at page 106 of the record of appeal (101 in print) the appellant stated “the complainant is my daughter” thus the relationship between the two was admitted. Further, the evidence of PW1 established penetration and identity of the appellant therefore satisfying the ingredients of the offence of Incest. 22. The evidence of PW1 was not shaken even after intensive cross examination and PW4 Corporal Roseline Lobeki stated when she met the victim on 24th June 2017, PW1 narrated to her how the father had defiled her in the year 2016 and threatened her not to reveal to anyone and that on the date when the victim was stabbed the appellant had attempted to defile her. The evidence of PW4 confirms consistency on the part of the victim in her narration of the ordeal she had been subjected to by the appellant. 23. PW4 produced an age assessment report as EXH- 3 showing the victim’s age as between 14 and 16 years. PW4 informed the court that the doctor whom examined the victim had been threatened and was not keen on testifying. 24. It is the view of this court, that the essential ingredients of the offence of incest were adequately proved through the evidence of PW1 and under Section 124 of the Evidence Act the trial court safely convicted the appellant having believed the victim to have been telling the truth. 25. PW5 John Njuguna a Clinical Officer from Nairobi Women’s Hospital testified on behalf of his colleague Winnie Mutungi and in his evidence he indicated that the victim’s hymen had healed tears thereby confirming the evidence of penetration. 26. According to PW5 Exhibit 5 did not bear the exact date and month of birth but indicated the year as 2004 which according to him was okay as they took apparent age as opposed to exact age. 27. It is important to state that regarding the offence of incest, once the relationship is proved and penetration or indecent act, the offence is adequately proved. The apparent age of the victim would also be sufficient to act on and a court can convict on the basis of evidence of the victim, guardian, and by observation or common sense. See Francis Omuroni Vs Uganda Court of Appeal Criminal Appeal No. 2 of 2000. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11567/eng@2026-01-14 4

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b. Whether the charge sheet was defective or at variance with the evidence tendered. 28. The appellant contended that the charge sheet was defective and was not supported by the evidence tendered by the prosecution. The charge sheet as framed indicates the statement of offence and particulars of the offence in line with Section 134 of the Criminal Procedure Code which states : ‘’Offence to be specified in charge or information with necessary particulars Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.’’ 29. The charge sheet as framed therefore meets the requirements of the law and the issue of its defectiveness or otherwise, in any event, was never raised during the trial by the appellant thus the belated attempt by the appellant to challenge the propriety of the same is clearly an afterthought. This ground must therefore fail. The appellant has also not highlighted the defect that he wishes the court to consider and allow the appeal. 30. The appellant having failed to raise the issue earlier on during the trial, cannot do so now unless he is able to demonstrate the error or defect and the failure of justice it has occasioned to him. The appellant has not demonstrated any defect and or error thus the provisions of Section 382 of the Criminal Procedure Code come into play. 31. Section 382 of the Criminal Procedure Code provides:Finding or sentence when reversible by reason of error or omission in charge or other proceedings ‘’ 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 or in any inquiry or other proceedings under this Code, 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.” The duty to establish that there was a defect and the effect of the defect identified lies with the appellant. For the appellant to succeed he must be able to demonstrate the failure of justice occasioned by the defect. The appellant in this case did not do so thus the submission has no legs to stand on. c. Whether there were material contradictions in the evidence tendered 32. It is trite law that not every contradiction in evidence can result in the quashing of a conviction. An appellant anchoring his appeal on contradictory evidence must be demonstrate that there exist material contradictions that would render a conviction unsafe. 33. The appellant has not demonstrated throughout the submissions that there were material contradictions in evidence to warrant the quashing of the conviction. The only thing that the appellant emphasizes throughout the appeal is that there was no adequate proof of paternity thus in his view the conviction was unsafe. It is this court’s view that, the issue was adequately dealt with by the trial https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11567/eng@2026-01-14 5

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magistrate who observed, just like this court has done, that the appellant admitted that the victim was his daughter. The claim therefore is baseless. 34. On contradictions, in the case of Joshua Mutua Musyoki vs R [2017] KECA 376 KLR, the court stated ;“ How about inconsistencies and contradictions? There were quite a number though the respondent dismissed them as inconsequential. In cases where the court has to prefer the evidence of one person against the other, for instance between the accused and the complainant and that is the only evidence, the court must approach such evidence with a degree of circumspection, particularly in sexual offences that are normally committed in secrecy with hardly any eye witness. Contradictions and inconsistencies therefore matter in deciding who to believe. The contradictions have to be considered and weighed carefully. In this case there were a number of such contradictions and inconsistencies that have been alluded to by the appellant in his written submissions.…Clearly the High Court failed to evaluate the veracity of all these contradictions and discrepancies. To our mind these contradictions and inconsistencies are not minor as submitted by the respondent. They were critical and go to the root of the prosecution case and whether the complainant was a credible and truthful witness. If the complainant could lie about what led her to report to school late, what else did she lie about?” 35. It is clear form this decision that the appellant must not only allege contradictions but also highlight them in order for the court to weigh them carefully. The appellant did not do so in his written submissions. The court similarly did not identify any material contradictions in the prosecutions evidence to warrant interference with the decision of the learned Honorable Magistrate. 36. It is the finding of this court that the prosecution evidence was clear, consistent, logical and that it established the guilt of the appellant beyond any reasonable doubt. The ground on contradictions therefore fails. d. Whether the defence tendered by the appellant was considered 37. The appellant further contended that his defense was not considered by the trial court. 38. At page 134 of the record of appeal the learned Honorable magistrate stated “there is no doubt that the accused is the father of the complainant. He even admitted during the defense hearing”. This statement by the trial court clearly demonstrates that the learned trial Magistrate reviewed the defense of the appellant and considered it otherwise how would she have come to the conclusion that the appellant had admitted paternity? 39. This court has independently evaluated the defense of the appellant in line with the duty of the court as a first appellate court. It does appear from the defense tendered by the appellant at page 93 of the record that the appellant admitted that the victim PW1 was his daughter from the third wife. He went on to state “she is my biological daughter, I have her notification of birth dated 29th June 2000…my name is listed as the father and her mother is Mariam Mohammed”. The appellant went on to deny the commission of the offence and in this court’s view, having weighed the defense against the prosecution evidence tendered by PW1, the defense amounted to a mere denial. 40. The evidence adduced by the appellant placed the victim at the age of 16 years thus the issue of proof of age was adequately established. 41. It is therefore the finding of this court that the same was properly rejected. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11567/eng@2026-01-14 6

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e. Whether the medical evidence tendered was reliable 42. The appellant in his written submissions submitted that there was no DNA to establish whether indeed the appellant ever had carnal knowledge of the victim. 43. In the case of Laban Mutua v Republic [2016] eKLR, the Court of Appeal held that whereas DNA testing pursuant to Section 36 of the Sexual Offences Act was not a mandatory requirement, where a person had been charged with committing a sexual offence, the court could (emphasis court) direct that appropriate sample be taken from the accused for purposes of scientific testing including a DNA test, in order to gather evidence and to ascertain whether or not the accused committed the sexual offence he had been accused of. This is a discretionary power of the appellate court. 44. It does not follow therefore that in all sexual offenses DNA evidence must be led. The victim in this matter was defiled over a period of about 1 year. The arrest was triggered by an attempted defilement and the assault on the victim. It was rather obvious to the trial court that even if the taking of DNA samples was ordered, it probably would not have yielded anything given the lapse of time. In any event the evidence of indecent assault like touching the victims breasts would have sufficed to support a conviction for the offense of incest. 45. The oral evidence tendered by the victim taken together with evidence of PW5 was sufficient to establish the offence of incest. 42. In conclusion this court finds that the essential ingredients of Incest were proved beyond reasonable doubt thus the conviction of the appellant was safe. The appeal on conviction and sentence therefore fails in its entirety. The sentence as imposed was lawful. 43. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JANUARY, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Jumba for the Appellant Ms Ogega for the Respondent Appellant present https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11567/eng@2026-01-14 7

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