https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8885

AA v Rpublic (Criminal Appeal E092 of 2023) [2026] KEHC 8885 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8885 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E092 of 2023 JN Njagi, J June 19, 2026 Between AA Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon.Onalo J.K.Olga, Senior Resident Magistrate, in Malindi Chief Magistrate’s Court Sexual Offence Case No. E015 of 2023 delivered on 23/8/2024) Judgment 1.The Appellant herein was convicted of the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between the year 2020 and January 2023 at (name withheld) in Malindi location in Malindi sub-county within Kilifi county he intentionally and unlawfully caused his penis to penetrate the vagina and anus of TA (herein referred to as the complainant), a child aged 14 years who was to his knowledge his daughter. 2.The Appellant was sentenced to serve life imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are in summary that:1.The learned trial magistrate erred in fact in admitting medical evidence in the case without the maker of the documents being made available in court to produce the same.2.The learned trial magistrate erred in law and in fact in convicting the Appellant when there was no medical evidence to link him with defilement on the complainant.3.The trial magistrate erred in fact in relying on the conflicted and unreliable evidence of the complainant and her mother.4.The learned trial magistrate convicted the Appellant without considering his defence.5.The trial magistrate erred in law and in fact in relying on the evidence of a police officer who did not investigate the case.6.That the trial magistrate erred in law in sentencing the Appellant without considering his mitigation. 3.The Appellant consequently urged the court to allow the appeal and set aside the judgment of the trial magistrate. Case for prosecution 4.The case for the prosecution was that the complainant was in the year 2023, a class 5 primary school pupil. She was at the time aged 14 years. She was living in the same house with her mother, PW2 in the case and her step-father, the Appellant. The complainant and her siblings were sleeping in the sitting room and kitchen of the house while her parents had a bedroom in the house. 5.It was the evidence of the complainant that on a certain day in the year 2020 she was asleep at the sitting room when she felt somebody inserting a finger into her vagina. She woke up suddenly. The bedroom light was on and she identified the person who had done so to be the Appellant. The Appellant hurriedly entered into the bedroom where her mother was. 6.That sometimes in 2021 her mother had travelled to Nairobi. That on one of the nights she was sleeping at the same place when she felt like she was dreaming and somebody was having sex with her. She woke up and saw a shadow entering the bedroom. 7.The complainant further said that in the year 2022 her mother got a job at a local hotel. That on either Saturdays or Sundays she would go for a night shift. That whenever her mother was away for night shift she would feel like she is being penetrated at night around 1am. That on waking up she would feel pain. That after two weeks it would happen again. That every time after the incident she would see the person either going to the toilet or bedroom with a towel tied around him. She did not tell anybody about it. 8.That in January 2023, she told herself that she must know what the matter was as she had prayed and it was not stopping. That on one night she slept and she felt somebody turning her over and the person engaged in sex with her. She then woke up fully and she saw with aid of light coming from the toilet that the perpetrator was the Appellant. That after he finished, he went to the toilet as usual as if nothing had happened. She did not tell anybody about it. 9.That on 14/2/2023, her mother called her to her bedroom and asked her whether she had ever been inappropriately touched by anybody. She first denied but she opened up and disclosed to her what the Appellant had been doing to her. Her mother made arrangements for her to go and spend the night at the house of her teacher and on the following day they reported the matter to the police. She was taken to hospital. 10.It was the evidence of the complainant that she was at first seeing it as a dream until when she confirmed it in 2023. 11.The mother to the complainant PW2 testified that on 13/2/2023 she and the Appellant were in bed sleeping when she woke up and found the Appellant lying on a towel on the bed. He rose up and she thought that he was going to the toilet but he went to the sitting room. After a short while she saw him peeping into the bedroom through the curtain. He saw that she had not slept and he entered into the bedroom. She asked him what the problem was and he said that he had seen somebody walking outside the house. PW2 slept. 12.It was the evidence of PW2 that on the following day she went to work but she was disturbed by the conduct of the Appellant on the previous night. In the evening after work she called the complainant to her bedroom and asked her whether there is anybody who has ever touched her on her private parts. That she disclosed what the Appellant had been doing to her since 2021. She made arrangements for the complainant to go and sleep with a friend teacher. On the following day they went to hospital. 13.The complainant was examined at Malindi sub county hospital by Dr. Rimba PW4 who found her with a broken hymn, old scars on the anal orifice and loose anal muscles. The doctor completed her P3 form. 14.The case was investigated by PC Saumu who was on maternity leave when the case came up for hearing in court. PC Selina Wafula PW3 testified on her behalf. She said that the case was reported at their police station on 17/2/2023. PC Saumu investigated the case and charged the Appellant with the offence of incest. 15.During the hearing of the case in court the doctor PW4 produced the P3 form, the Post Rape Care form, the lab test and results as Exh. PXh. 1 – 4 respectively. Defence case 16.When put to his defence the Appellant stated in a sworn statement that he is a plumber. That he got married to the complainant`s mother in 2002. They got 2 children one of whom died. He separated with the victim`s mother in 2006. He married another wife and he had one child with her. The complainant`s mother got married in Nairobi and got 2 children but later separated from her husband. His second wife died and he reconnected with the first wife. She went back to him in 2017 and they started living together as husband and wife together with their children. She however brought issues about staying with his daughter born to his wife who passed on. 17.That the complainant`s mother got a job at a local hotel. He later found that she was in an affair with a workmate. He found the man with her at their house. He later saw a photograph of the said man holding her from behind. In the evening of that day, he went home and found her having parked the complainant`s belongings. She said that she was taking her to the house of her teacher. She left with her on a motor cycle. That at 7pm she told him that she had dreamt that he had raped the complainant and that the complainant had said that she would dream of a man having sex with her while asleep. That when he went to work, he was called to the police station. He went there. The investigating officer told him that he had defiled his child. 18.It was the evidence of the Appellant that the complainant`s mother was a violent woman. That she had threatened him that if she did not take him six feet under, she will have him locked up. He said that he was taking care of the children without discrimination, paying their school fees, buying food and paying rent. He denied that he engaged in sex with the complainant. 19.The accused called 3 witnesses – his first-born daughter with the mother to the complainant, DW2, his daughter with his wife who passed on, DW3 and his sister DW4. The first-born daughter DW2 testified that she was at the material time in boarding school. That during the school holidays she was living with her parents. She was sleeping at the sitting room while the complainant and DW3 were sleeping in the kitchen. That her mother was bad tempered and used to fight with her father all the time as she was saying that she did not want her sister DW3 to come to their house. That at one time her mother parked her things and threatened her father that she will leave him dead or imprisoned. That at another time she threatened her father with a knife and he was injured by the knife as they struggled over it. 20.It was further evidence of DW2 that the kitchen was a meter away from where she was sleeping in the sitting room. That it was not possible for the defilement to have taken place in the kitchen and she would fail to hear anything. It was her evidence that the complainant never told her that she was being defiled by their father. 21.DW3 on her part testified that she was at the material time living with her father, her step mother and siblings. That the house where they were staying was small with a bedroom, a kitchen, sitting room and a bathroom. She was sleeping in the kitchen with the complainant. That her brother was sleeping in the sitting room and DW2 who was in boarding school would sleep at the sitting room when she was around. 22.It was the evidence of DW3 that her parents used to fight a lot and that her step mother PW2 had the habit of going for the knife whenever they fought. That at one time she injured him with a knife. They started to hind the knives. That when she passed her KCPE and was admitted to boarding school her step-mother was refusing for her to join the school as she has never liked her. It was her evidence that the complainant never told her that their father was defiling her. 23.The sister to the Appellant DW4 testified that the Appellant was married to PW2. They separated and later come back together. That the problems between them begun as PW2 did not want their step daughter DW3 to stay with them. That DW3 got a sponsorship for her schooling. That PW2 wanted her kids to be taken to boarding school too but the Appellant was not able to do so. That there was one time the appellant called her and told her that PW2 had held out a knife at him and he had been cut by the knife. That the appellant and his children were telling her that PW2 was threatening to do unforgettable thing to the appellant. It was her evidence that she did not believe that the appellant did the things he was accused of. 24.The appeal was canvassed by way of written submissions Submissions 25.The Appellant submitted through his counsel that no medical evidence was adduced that connected the Appellant with the defilement. That medical examination revealed that the complainant had old scars on the opening of the anus and had a broken hymen. That there was no evidence pointing to fresh injuries. It was submitted that a broken hymen is by itself not proof of defilement as was stated by the Court of Appeal in the case of P.K.W v Republic (2012) eKLR. 26.It was submitted that the investigating officer did not testify in the case on the ground that he was transferred from the station while the clinical officer who examined the victim did not testify on ground that she was on maternity leave. It was submitted that these were not sufficient grounds for the unavailability of the witnesses. 27.The appellant submitted that the case for the prosecution was based on dreams and visions which did not prove the case beyond reasonable doubt. 28.It was submitted that the evidence of the complainant and her mother was inconsistent and uncorroborated. That though the trial court found that there were disputes between the Appellant and the complainant`s mother, the court failed to find that the mother to the complainant may have influenced the complainant to fabricate trumped up charges against the Appellant. That the court failed to consider the evidence of the Appellant and that of the siblings to the complainant. 29.It was submitted that the Appellant was wrongly convicted of the offence and that this court should acquit him of the charges. 30.The Respondent on the other hand submitted through their counsel that the ingredients of the offence charged of were proved beyond reasonable doubt. That the age of the victim was proved by the birth certificate produced as Exhibit 3 which was not controverted by the defence. That the evidence of the victim that the Appellant had sexual intercourse with her was corroborated by medical evidence adduced by the doctor, PW4. It was submitted that the victim identified the Appellant in court as the person who defiled her. 31.Notwithstanding the foregoing, the respondent submitted that it is not until 2023 that she identified the Appellant as she thought that she was having a dream all along. That the trial court acknowledged that the evidence of the victim sounded unreal but the court went ahead to believe her testimony. It was submitted that the trial court erred in applying the provisions of section 124 of the Evidence Act. 32.It was submitted the complainant never disclosed that the appellant was defiling her and only did so to her mother PW2 after she, PW2, had dream of it. That it would seem that the victim reported the matter to her teacher who never recorded a statement. That it is curious that the siblings of the victim never heard anything throughout the years that the victim was defiled yet they slept with her in the sitting room area. That the siblings were called as defence witnesses but the trial court did not properly weigh their evidence. That the evidence of the prosecution witnesses created doubt in the case. Analysis and determination 33.This being a first appeal, this court is mandated to analyze and re-evaluate afresh the evidence adduced before the trial court 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”. 34.I have considered the grounds of appeal, the record of the trial court and the submissions filed herein. The issue for determination is whether the trial court erred in convicting the Appellant of the offence of incest. 35.The offence of incest is established 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: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 the indecent act was obtained with the consent of the female person”. 36.In NRO v Republic [2021] KEHC 2975 (KLR), the court set the ingredients of the offence as follows: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; ande)There must be penetration. 37.In the case against the Appellant, it was alleged in the charge that the complainant was under the age of 18 years. It was therefore imperative to prove the age of the complainant. 38.The complaint testified that the appellant started to defile her in 2021 and did so upto January 2023. The complainant`s birth certificate was produced in the case that showed that she was born on 11/8/2008. This places her age at the material time at between 13 and 14 years. It was therefore proved that the complainant was at the material time under the age of 18 years. 39.The next issue is on the relationship between the complainant and the Appellant. It was not disputed that the Appellant was a step-father to the complainant, the Appellant having married the complainant`s mother. The question is whether this brought their relationship within the prohibited relations stated in section 20(1) of the Sexual Offences Act. 40.Section 22 of the Act provides as follows:“22(1) In cases of the offences of Incest, brother and sister includes half brother, half sister 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 …” 41.The trial court held that the appellant was a half father to the complainant as set out in section 22 of the Act 42.In B.N.M v Republic [2011] KEHC 1662 (KLR), Justice M. Odero held the following on the meaning of the term half-father as set out in section 22:“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 ‘loguo parenthis’ can legally be charged and indeed convicted of the crime of incest with her.” 43.This definition got the approval of the Court of Appeal in DKG v Republic [2022] KECA 918 (KLR). The Appellant being a step-father to the complainant herein brought his relationship with her within the forbidden degrees of consanguinity pursuant to section 22(1) of the Sexual Offences Act. The Appellant was aware of the relationship and therefore the issue was proved. 44.On penetration, the complainant testified that the Appellant penetrated her many times between 2021 and January 2023. The Appellant alleged that the allegations were a fabrication. 45.It was the evidence of the complainant that in 2021 her mother had gone to Nairobi with her brother and she was left in the house with the appellant and her other two siblings. That she was sleeping at the sitting room. One of her siblings was sleeping in the kitchen and the other in the bedroom. That as she slept, she felt like she was dreaming of someone putting his penis into her vagina and that upon waking up she saw a shadow entering her parents` bedroom and the door closed forcefully. That in 2022 when her mother would be on night shift, she would feel being penetrated at night at 3am and on waking up she went on with her business but would feel pain. That the incident would repeat itself again after 2 weeks when her mother was on night shift. That at the end of the act she would see the appellant walking to the bathroom or to the bedroom with a towel wrapped around himself. That in January 2023, her mother had gone to work and her brother had left for Nairobi. That it was a Sunday and her siblings were asleep. She was sleeping on the couch when she felt someone turn her over and had sex with her. That she woke up fully and saw the Appellant penetrating her into her vagina but she remained transfixed until he finished and he went to the toilet and then to the bedroom. She reported the incidents to her mother when she questioned her on 14/2/2023. It was her evidence that the Appellant had threatened to throw her out of the house together with her siblings if she disclosed the incidents to her mother. 46.It was further evidence of the complainant that her mother said that she had dreamt that the Appellant was having sex with her (complainant) so it was like she was confirming it. She said that she did not tell her elder sister as they are not very close and she feared she may not believe her as the appellant is her biological father. 47.The trial magistrate in convicting the Appellant of the offence stated that though the incidents about dreams in 2021 and 2022 appeared unreal and could be determined in favour of the Appellant, the complainant clearly saw the Appellant defiling her in the incident of January 2023. That penetration in the case was corroborated by medical evidence produced by PW4. The court thereby found that the complainant was truthful. That the complainant identified the Appellant by the light from her parents` bedroom. That hers was identification by recognition and not that of a stranger. That the defence that the case was fabricated due to the appellant`s differences with his wife PW2 was discounted by the fact that the complainant had injuries in her anus and in her vagina. 48.I have on my part re-evaluated the evidence adduced before the lower court and the reasons given by the trial court for convicting the appellant of the offence. The issue was whether the Appellant penetrated the complainant. 49.Penetration is defined in section 2 of the Sexual Offences Act as:“..the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 50.Defilement can be proved by oral evidence or by way of circumstantial evidence. Such evidence may be corroborated by medical evidence where the same is available. 51.The trial magistrate in the matter stated that penetration on the complainant was corroborated by medical evidence in that she had a broken hymen and had injuries on the anal orifice and loose anal muscles. It is trite that mere absence of hymen is not in itself proof of defilement, see P.K.W v Republic [2012] KECA 103 (KLR). There was no medical evidence in this case connecting the Appellant with the injuries observed on the complainant. 52.In view of lack of medical evidence in support of the charge, the case for the prosecution entirely depended on the credibility of the complainant who made the allegations that the Appellant defiled her. Section 124 of the Evidence Act allows the court in defilement cases involving children to convict on the sole evidence of the child victim where the court is satisfied that the child is telling the truth and gives reasons for such a finding. 53.It is in the first place important to note that the charge against the appellant indicated that the Appellant penetrated both the anus and the vagina of the complainant. I have gone through the evidence of the complainant. Nowhere did she state in her well detailed evidence that the Appellant penetrated her into her anus. All that she said all through is that the appellant inserted his penis into her vagina. It is the mother to the complainant who brought up the issue in court when she said that her daughter told her that from the year 2021 the appellant was penetrating her into her anus but that in 2023, he turned her over and she managed to see him. If then this is what the complainant told her mother, the question is why she did not state so in court. Was it possible for her to forget to tell the court that the appellant was penetrating her into her anus for the last 2 years and it is only in January 2023 when he turned her over and he penetrated her vagina? 54.The complainant stated that in the incident of 2021 she felt like somebody was inserting a penis into her vagina. If then in 2021 she was being penetrated into her vagina, why did she tell her mother that it is only in 2023 that the Appellant penetrated her into her vagina? 55.The complainant said that in the year 2022, the appellant would defile her every 2 weeks when her mother was on night shift. There was no indication that the penetration was through any other place except though the vagina. The complainant therefore never adduced evidence that the appellant penetrated her anus. The police officer who testified in court PW3 never mentioned the issue. It is most likely that the complainant lied to her mother that the appellant penetrated her into her anus. 56.The evidence of the complainant was that she was dreaming that the appellant was penetrating her into her vagina with his penis. Her mother PW2 similarly said that she had a dream about it. The trial court did not believe the evidence about dreams. It is curious that both the complainant and her mother had similar dream. It is curious that the complainant dreamt for 2 years that her father was defiling her and never confirmed whether it was true or not. It is curious that it is her mother who first raised the issue and according to the complainant her mother was confirming with her whether it was true or not. I am baffled by the coincidence. 57.It was the evidence of the complainant that when her father defiled her for the first time in 2021, her mother and her brother had travelled to Nairobi but her other siblings were in the house. These were DW2 and DW3. Though the complainant said that she was at the time sleeping at the sitting room, her sisters DW2 and DW3 said that the complainant used to sleep in the kitchen together with DW3 and that it is DW2 who used to sleep at the sitting room. 58.The complainant further said that when the appellant defiled her in January 2023, her mother was at work and her brother was away at school but the others were asleep in the house. Evidence was adduced that the kitchen was a few meters away from the sitting room. The complainant said that there was light from the bedroom when the Appellant was defiling her at the sitting room. Assuming that she was defiled at the sitting room, I fail to understand how the appellant would defile her without fear of being seen by the other siblings, DW2 and DW3 with the light from the bedroom. I fail to understand how he would defile the complainant close to where the eldest daughter, DW2 was sleeping and who was by then a big girl in secondary school. If in fact DW2 was present at that time, was the complainant sleeping in the sitting room or in the kitchen? Was she defiled in the sitting room or in the kitchen? It is most likely as stated by DW2 that it is her, DW2, who was sleeping in the sitting room when she was around and the complainant was sleeping in the kitchen. This creates doubt whether there was any defilement that took place in the sitting room when DW2 was around. I am thereby not convinced that the complainant was telling the truth on the matter. 59.It is to be noted that the trial court did not seem to fully believe the evidence of the complainant. The prosecution in their submissions similarly were not convinced by the story that the appellant defiled the complainant. Though the doctor PW4 found the complainant with old scars on the anal orifice, loose anal muscles and broken hymen, there was no sufficient evidence that the Appellant was the perpetrator. 60.It is clear that the Appellant and his wife PW2 were not in good terms. They were fighting and quarrelling all the time. The complainant may have been caught up in the cross-fire and was used by her mother to settle scores against the Appellant. The Appellant was entitled to the benefit of doubt. 61.In view of the foregoing, it is my finding that the case against the Appellant was not proved beyond reasonable doubt. Consequently, the conviction entered by the trial court on the appellant is quashed, the sentence thereof set aside and the Appellant set at liberty forthwith. DELIVERED, DATED AND SIGNED AT GARSEN THIS 19TH DAY OF JUNE 2026J. N. NJAGIIn the presence of:Mr. Owino for AppellantMr. Oluoch for RespondentAppellant - present on bondCourt Assistant - Rahma