Ckm v Republic

4. The evidence of the complainant was that one day on a Wednesday she was sleeping with her siblings in their house. Her mother was away from home. That the appellant went to the house and removed her clothes. He inserted his penis into her vagina. She bled from her vagina. 5. That on the following day the appellant sent her to buy maize flour. That later in the day she was sent to fetch water when the appellant found her and dropped her down under a tree. He then inserted his penis into her vagina. Her mother called at her. The appellant left her and fled. She later reported to her mother what the appellant had done to her. 6. A brother to the complainant PW3 testified that he was on one night sleeping with his siblings in their room when he went to the kitchen to drink water. He found the appellant engaged in sexual intercourse with the complainant on the floor. When the appellant saw him, he stepped aside and pretended to be asleep. 7. The mother to the complainant PW4 testified that the complainant disclosed to her that the appellant had defiled her. She took her to hospital and they reported to the police. 8. A clinical officer at Mpeketoni sub county hospital PW5 told the court that the complainant was examined at the hospital and found with a missing hymen. She completed her P3 form and Post Rape Care form. 9. The case was investigated by Cpl Sawe PW6. He testified that the report was made at the police station on 20/2/2025. He visited the scene. The complainant showed them where the appellant used to defile her including under a tree. 10. During the hearing of the case in court, the clinical officer PW5 produced the Post Rape Care form and the P3 form as exhibits, P.Exh.2 and 3 respectively. The mother to the complainant produced the complainant`s birth certificate as exhibits, P.Exh.4. Defence case 11. When placed to his defence the appellant stated that he gave land to the complainant`s mother to settle and to build a house. That later on she started to call him an infidel because she is a muslim and he is a Christian. That after some time she stole his Ksh2,500/=. He kicked her out of the land. She left and after some time she fabricated this case of defilement. 12. The appeal was disposed off by way of written submissions. Submissions 13. The appellant submitted that the ingredients of the offence of incest were not proved. That there was no evidence of penetration or identification of the appellant. That the complainant was a not truthful witness. He faulted the trial court for not considering his defence. 14. The respondent on the other hand submitted that the ingredients of the offence of incest were proved. That the age of the complainant was proved by the birth certificate. That the evidence of the complainant that the appellant penetrated her was corroborated by the clinical officer PW5 who found that her vagina had been penetrated. That identification of the appellant was by recognition. The respondent urged the court to dismiss the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12307/eng@2026-07-31 2

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Analysis and determination 15. This being a first appeal, this court is mandated to analyse and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: “ On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.” 16. The Appellant was charged under Section 20 (1) of the Sexual Offences Act that 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: 17. In NRO v Republic [2021] KEHC 2975 (KLR), the court said the following on the section: Flowing from provision of this section, the ingredients for incest under the section are as follows: a) The accused must be a male; b) The victim must be a female; c) She must be his daughter, granddaughter, sister, mother, niece, aunt or grandmother; d) He must have knowledge of the relationship; and e) There must be penetration (or indecent act). Emphasis is mine). 18. There is no doubt that the complainant is a niece to the appellant. The relationship between the two was well established. The charge of incest was properly grounded. 19. The clinical officer who examined the complainant found her with a broken hymen. There was no evidence that it was freshly broken. The mere fact of a broken hymen is not proof of penetration against an accused person. There are other factors that can cause the hymen to break and not necessarily sexual intercourse. There was thus no medical evidence to support penetration. That left the oral evidence of the prosecution witnesses in proof of the charge. 20. The complainant told the court that the appellant defiled her two times. That on the first day the appellant went to the bed where she was sleeping, removed her clothes and penetrated her vagina. That on the following day she was going to fetch water when the appellant grabbed her and penetrated her under a tree. 21. The brother to the complainant PW3 who was a class 4 pupil testified that he and his siblings were sleeping in their room when the complainant woke up and said that she was going to urinate. That after the complainant left, he went to the kitchen to drink water where he found the complainant and the appellant on the floor engaged in sexual intercourse. On seeing him, the appellant stepped off her https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12307/eng@2026-07-31 3

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and pretended to be sleeping. He asked the complainant they go back to their room. He said that he had a light at the time. 22. Whereas the complainant said that the appellant defiled her on in the room where she was sleeping with her other siblings, her younger brother PW3 said that the act took place in the kitchen. Who among them is telling the truth on that issue? 23. Additionally, the complainant said that the act took place on a bed where she was sleeping. Her brother said that it took place on the floor in the kitchen. It was his evidence that previously there was a bed in the kitchen but as of that time it had broken down. Worse still the complainant`s brother said that they used to sleep on the floor and the bed was only in their mother`s room. Which bed then was the complainant talking about if there was no bed in the room they were sleeping? 24. It is then clear that there were contradictions and discrepancies in the prosecution case. The guide to treat contradictions in a criminal case was given by the Court of Appeal in the case of John Nyaga Njuki & 4 Others v. Republic [2002] eKLR where the court stated that: “ ….But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused.” 25. In my view, the contradictions in the evidence of the complainant and PW3 were substantial and fundamental as they went to the core of the case on whether the offence was committed or not. It was not a minor infraction that the court could ignore. The contradictions created doubt on the credibility of the witnesses on whether they were telling the truth. In Ndungu Kimanyi v Republic [1979] KLR 283, the Court of Appeal held the following on credibility of witnesses: The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence. 26. The two witnesses were therefore of doubtful credibility. If the complainant cannot be believed on the first incident, there is no reason to believe her on the second incident. The trial court did not interrogate the discrepancies in the evidence before believing the evidence of the prosecution witnesses. 27. It is clear that there were differences between the complainant`s mother and the appellant. I am not convinced that the case against the appellant was proved beyond reasonable doubt. The appellant was entitled to the benefit of doubt. 29. The upshot is that I find the appeal to be merited. Consequently, the conviction entered by the trial court on the appellant is quashed and the sentence thereof set aside. I order the appellant be set at liberty forthwith unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT GARSEN THIS 31ST DAY OF JULY 2026 J. N. NJAGI JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12307/eng@2026-07-31 4

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Mr. Oluoch for Republic Appellant – present virtually at GK Prison Malindi Court Assistant – Luckson https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12307/eng@2026-07-31 5

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