Kkm Alias K v Republic

1. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that the ofience of incest contrary to Section 20(1) of the Sexual Offences Act whilst the appellant was charged with the ofience of defilement; 2. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that the ofience of incest which is not a cognate ofience to that of defilement; 3. That the learned trial magistrate erred in law and facts by upholding conviction failing to consider that to analyze the ingredients of the ofience of incest as required under Section 169 of the Criminal Procedure Code; 4. That the learned trial magistrate erred in law and facts by upholding conviction failing to consider that the charge sheet was incurably defective contrary to Section 137(f) of the Criminal Procedure Code; 5. That the learned trial magistrate erred in law and facts by upholding the conviction failing to consider that voire dire examination was not done contrary to Section 19(1) 0f the Oaths and Statutory Declaration Act; and 6. That the learned trial magistrate erred in law and facts by upholding conviction failing to consider that age of the victim was not proved according to the law. 4. The prosecution case was that PW1 the complainant aged 17 years testified that the appellant was his stepfather having married her mother when she was already born. Her evidence was that sometimes in June, 2020 the appellant went to her room where she was sleeping with her siblings and had sex with her telling her that since she came with her mother there was nothing wrong having sex with her. After a week the appellant came again and had sex with her. This was despite informing her grandmother that the appellant was preying on her. She testified that when her grandmother questioned the appellant he told her that she could leave if she did not want to have sex with her. She threatened to commit suicide. She later informed her grandfather SM who advised her top leave. Later she recorded statement with the police and taken to hospital for medical examination. A P3 Form was filled. She identified the appellant in court. In cross-examination she said she had not slept with anyone before. She said she agreed to sleep with the appellant because she was scared. 5. PW2 produced the P3 Form and treatment notes on behalf of Dr. Ibrahim whom he had worked with for nine years. He testified that the complainant was brought to the hospital on 9th January, 2021 with a complaint that her stepfather was sleeping with her. On examination her hymen was found to be broken. She was counselled and allowed to go home. A P3 Form was later filled which he produced in court together with treatment notes. 6. PW3 testified that on 3rd March, 2021 a report was made that the complainant was being defiled by her stepfather. He interrogated the complainant who told him that the appellant had been sleeping with her. The complainant told him that her mother had left five years ago and they were staying with their grandmother. He said the complainant told him that when the appellant repeatedly had sex with her she informed her grandmother. PW3 said he interrogated the area chief who is brother to the appellant. He later went to the appellant home and the appellant denied the accusations saying that he was being framed because he found the complainant with a boy on the road. 7. PW4 a Child Protection volunteer said she was informed by the children officer Naomi Kazungu that there was a child who had been defiled and requested her to go rescue her. She reported the matter to the area Assistant Chief and to the police. She rescued the child and took her to Pope Francis Rescue Centre. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11760/eng@2026-07-29 2

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8. The appellant in his defence said that sometimes in September, 2020 he was coming from work when he found the complainant with another person. When she enquired whom she was with she refused to answer prompting him to slap her and left for home. On reaching home he was told by the complainant’s siblings that the complainant had left home long time. He requested her grandmother to talk to her else they will not be in good terms. He said he informed the area chief who went with the complainant. She stayed with the Assistant Chief up to April, 2021 when officers came with his wife and told him that they had come for the children. He was told if he wanted the children he reports at Langombaya police station. He said he let the children go with his wife. 9. The appeal was heard by way of written submissions which I have carefully perused and considered. This being the first appeal, the duty of the court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own decision without overlooking that it did not have the advantage of hearing and seeing witnesses testify. This principle need not be overemphasized as the same is settled in plethora of authorities including the case of Okeno vs Republic (1972) E.A 32. 10. Further to the foregoing it is settled principle of criminal law that the burden of proof lies with the prosecution to prove a charge against an accused person beyond reasonable doubt (See Miller vs Minister of Pension (1947)2 All Er 372.) 11. The appellant argued grounds 1, 2 and 3 together. He argued that the trial court in its analysis of the evidence was for the ofience of defilement which is cognate ofience to that of incest. Having done so and found that the ofience was not proved proceeded and convicted him with the ofience of incest. He relied on Section 179 of the Criminal Procedure Code which provides: When a person is charged with ofience consisting of several particulars a combination of some only of which constituted a complete minor ofience and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor ofience although he was not he not charged with it.” 12. The appellant cited several decisions of the High Court among them the case of Robert Mutungi Muumbi vs Republic (2015) e KLR and argued that an accused charged with a major ofience may be convicted of a minor ofience if the main ofience and the minor ofience are cognate. In other words, the argument by the appellant is that he was charged with defilement but convicted of the ofience of incest. 13. The respondent did not submit on this issue presumably because it is being raised in the submissions. Nevertheless, I will consider this ground raised by the appellant. 14. In considering this ground, the question to grapple with is whether defilement is a minor and cognate ofience to incest as argued by the appellant. In answering this question, it is important to cite the case of L.L vs Republic (2019) e KLR where the Court of Appeal in holding that incest is a distinct ofience and not cognate ofience to defilement stated: It was legally impossible for the trial court to do so, because incest is not a minor and cognate ofience to the ofience of defilement. A court is only permitted to convict an accused person for a minor and cognate ofience. A court is permitted to convict an accused person for a minor and cognate ofience to the minor ofience charged, which is not the case in the instant appeal. See Section 179 of the Criminal Procedure Code Cap 75 Laws of Kenya. The ofience of defilement is a distinct ofience from that of incest. It is not a minor and cognate ofience.” 15. Guided by the foregoing decision, I have perused the record before the trial court and it is abundantly clear that the appellant was charged with the ofience of incest contrary to Section 20(1) of the Sexual https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11760/eng@2026-07-29 3

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Offences Act. Similarly, from the judgment of the trial court, it is clear that the ofience which was under consideration is that of incest and not defilement. I find the argument by the appellant misplaced in the circumstances of this case. In any case the trial court did not invoke the provision of Section 179 of the Criminal Procedure Code. The appellant was convicted for the ofience of incest and not defilement as alleged by him. It is also not correct as argued by the appellant that he answered to the charge of defilement as the record is clear that he pleaded to the charge of incest which he defended himself. 16. The appellant further argued that the charge sheet was incurably defective. He relied on Section 134 and 137(f) of the Criminal Procedure Code which provides: 134. 17. Every charge or information shall contain and shall be sufficient if it contains, a statement of the specific ofience or ofiences 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 ofience charged.” Section 137(f) provides: Subject to any other provisions of this Section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.” 18. The appellant argued that both the main and the alternative charge were too general in terms of the date and time of the alleged ofience and that he was prejudiced for want of specificity. The basis of the appellant submissions is that the particulars of the charge sheet talked of diverse dates on when the ofience was committed. 19. Again, the respondent did not submit on the issue of the defect of the charge sheet because the same was raised in the amended grounds of the appeal contained in the appellant submissions. 20. I have considered the argument by the appellant in respect of the defect of the charge sheet. As provided for under Section 134 and 137(f) 0f the Criminal Procedure Code, so long as the charge contains the essential elements of the ofience with sufficient details to enable the accused to know the exact nature of the ofience for which he is charged to enable him to prepare his defence it cannot be said to be defective. In my opinion the mere fact that the charge states ‘diverse dates’ in the particulars does not automatically make the same fatal. The charge sheet contained sufficient narrative and the appellant cannot say he was prejudiced. He defended himself in respect of the charge of incest and I find the ground that the charge was defective merely because it stated diverse dates to be unmerited. 21. The appellant also argued that the trial court did not conduct voire dire examination to the required standard contrary to Section 19(1) of the Oaths and Statutory Declaration Act. The appellant argued that voire dire examination is necessary for child of tender years under the age of 18 years to determine whether the minor is intelligent enough and understands the meaning of giving evidence in court. 22. The respondent did not submit on this issue. Again, presumably because it was raised in the submissions and not in the grounds initially filed by the appellant. 23. Section 19(1) of the Oaths and Statutory Declaration Act provides: 19(1) Where, in any proceedings before any court or person having by law or consent of the parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11760/eng@2026-07-29 4

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possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any ofience, though not given on oath, but otherwise taken and reduced into writing in accordance with Section 233 of the Criminal Procedure Code (Cap 75), shall be deemed to be a deposition within the meaning of that section. 24. The aforesaid provision talks of a child of tender years who has been called to as a witness. Section 2 of the Children Act defines a child of tender years as a child under the age of 10 years. In the case of Kibageny Arap Korir vs Republic (1959) E.A 92 the court held that a child of tender years is a child under the age of 14 years. In this case the complainant is stated to be aged 17 years. It follows that voire dire examination was not necessary hence the ground raised by the appellant in respect of failure by the trial court to conduct voire dire examination is not merited. 25. Having dealt with the foregoing grounds raised by the appellant, the next issue for determination is whether the prosecution proved the charge of incest as required. The appellant apart from raising the grounds I have dealt with, he did not submit on whether the charge of incest was proved as required. On the other hand, the respondent submitted that all the ingredients of the ofience of incest were proved. 26. Section 20(1) of the Sexual Offences Act under which the appellant was charged provides: 20(1) Any male person who commits an indecent act or an act which causes penetration with a female person who to is knowledge is his daughter, granddaughter, sister, mother, niece, 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 indecent act was obtained by consent of the female person.” 27. From the foregoing Section, the essential elements which the prosecution must establish to prove the charge of incest are; Firstly, proof of the prohibited relationship in the sense that the accused and the victim share a recognized familial tie which pursuant to Section 22 of the Act includes half-relations and adoptive relations; Secondly, it must be proved that the accused must have known about the familial relationship with the female victim at the time of the act; Thirdly, it must be proved that an indecent act or sexual penetration occurred; Fourthly, there must be proof of positive identification of the perpetrator; and finally the age of the victim as the sentencing framework depends heavily on whether the victim was an adult or under the age of eighteen years. These ingredients were emphasized in the case of M.G vs Republic Criminal Appeal No. E051 of 2021 (2022) KEHC 14454 (KLR). 28. In the instant case, the complainant led evidence that the appellant was stepfather in the sense that he married her mother when she was already born. The question is whether the appellant had familial ties with the complainant in the circumstances. In considering this question it is important to reproduce the provision of Section 22(1) of the Sexual Offences Act: 22(1) In case of the ofience of incest, brother or sister includes half-brother, half-sister and adoptive sister and a father includes a half-father, and an uncle of the first degree and mother includes a half-mother and an aunt of the first degree whether through lawful wedlock or not.” 29. Section 22(3) provides: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11760/eng@2026-07-29 5

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22(3) An accused person shall be presumed, unless the contrary is proved, to have had knowledge at the time of the alleged ofience of the relationship existing between him or her and the other party to incest.” 30. The court in the case of D.N.N vs Republic (2011) e KLR stated: Does this fact that no biological or blood ties exist between the two negate a charge of Incest? The answer is to be found in section 22 of the Sexual Offences Act which deals with ‘Test of relationship’. S. 22(1) provides as follows: “22(1) In cases of the ofiences of Incest, brother and sister includes half-brother, halfsister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not …” 31. My own understanding is that ‘half father’ is a term which means exactly the same as ‘step-father’ – it means one who is not a biological father of the child. Therefore, by dint of this S 22(1) of the Act the appellant being a step-father of the complainant and one who stood in ‘loquo parentis’ can legally be charged and indeed convicted of the crime of Incest with her. 32. In her evidence the complainant made a brief statement in which she said that her ‘daddy’ whom she positively identified in court put his finger into her vagina.” 33. In this case the complainant was clear that the appellant was her stepfather. This fact was never disputed by the appellant. It was also the evidence of the complainant that the appellant had sex with her on several occasion telling her that she was not her child. Further it was clear from the evidence that the appellant was well known to the complainant. Indeed, the complainant informed her grandmother who warned the appellant but the appellant was adamant that if the complainant did not want to have sex with her should leave the home. The trial court found that all the necessary ingredients were proved. 34. The trial court went further and found that the appellant defence did not displace the prosecution case as the same was mere diversion of the attention from what the appellant was doing to the complainant. The trial court found that the appellant even opted to give unsworn testimony which was of no probative value. 35. Having considered the evidence adduced before the trial court in its entirety, I have no reason to fault the trial court and I am satisfied that the charge of incest was proved as required. Consequently, I find that the appeal on conviction is unmerited. 36. Regarding the sentence the proviso to Section 20(1) of the Sexual Ofience Act provide for life imprisonment where the victim is under the age of eighteen years. In this case the complainant was aged 17 years. The trial court sentenced the appellant to 30 years. I have no reason to disturb the sentence as the same was within the discretion of the trial court. The same is not manifestly excessive for this court to interfere with. 37. The upshot is that the appeal is dismissed in its entirety and the finding of the trial court both on conviction and sentence is upheld. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY, 2026. F.N KYAMBIA JUDGE OF THE HIGH COURT OF KENYA. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11760/eng@2026-07-29 6

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