https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1622

BNS v Republic (Criminal Appeal E146 of 2023) [2026] KECA 1622 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1622 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E146 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between BNS Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisumu (Ochieng, J.) dated 28th February 2023 in HCCRA No. E031 of 2021) Judgment 1.In the architecture of criminal adjudication, every brick of testimony, every beam of documentary proof, and every nail of statutory interpretation must withstand scrutiny; for the edifice of justice cannot be permitted to collapse upon the frailty of those most vulnerable. The law demands that when the voices are tender in age, impressionable in memory, and susceptible to exploitation, they be shielded with particular care. The innocence of youth, too often targeted by predation and left to endure unspeakable suffering, must not be allowed to distort the balance of truth but rather to summon the Court’s vigilance, ensuring that their testimony is received with solemn protection and weighed with the gravity it deserves; but all the same, the Court must balance this protective vigilance with the immutable requirements of the law of proof, for justice cannot be sustained by sympathy alone. The evidentiary threshold remains the lodestar: allegations, however grave, must be tested against the standards of admissibility, credibility, and sufficiency, lest compassion eclipse the constitutional demand that guilt be established beyond reasonable doubt. 2.That said, the genesis of this appeal lies in the judgment of the Principal Magistrate’s Court at Tamu, (the trial court), in which the appellant, BNS, was charged, tried and convicted of the offence of incest contrary to section 20(1) of the Sexual Offences Act and sentenced to life imprisonment. In the trial court, the appellant faced two counts of incest involving her two daughters namely, SC and JO (their real names redacted). As a result of those escapades, the said daughters all became pregnant. The appellant was then arrested and charged. 3.At the conclusion of his trial, the appellant was acquitted of count 1 which involved SC as the complainant whereas he was convicted on count 2 in which JO was the complainant. The particulars of the charge for which the appellant was convicted and sentenced were that between 1st June and 30th September 2020, at [Particulars Withheld] village in Muhoroni sub-county, Kisumu County, the appellant unlawfully caused his genital organ namely the penis to penetrate the female genital organ of J.O. who was to his knowledge his biological daughter. He was further faced with an alternative charge of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act. He denied the allegations and his trial thereafter ensued. 4.During the trial, PW1 recounted how she had visited her father, the appellant, who had by then separated from her mother. Whilst thereat, the appellant isolated her by sending away the other children and whilst alone defiled her. When done, he threatened her into silence until pregnancy exposed the abuse. PW3, G.A.N, (real name again redacted), the mother of the PW1, confirmed her pregnancy and the disclosure to her by PW1 that the appellant was responsible, adding that even the appellant’s own mother admitted to her that the appellant was of a bad character and was capable having incestoius relationships with his daughters. 5.PW4, Jared Olala, the clinical officer, produced medical evidence corroborating the pregnancy of PW1. PW5, PC Boniface Lugonzo, the investigating officer, testified on the arrest of the appellant, the threats issued to PW1 by the appellant to silence her if she ever spilled the beans, and the proper investigations he conducted. Finally, CW1, Polycarp Lutta Kweyu, the government analyst, tendered DNA report confirming the appellant’s biological link to the foetus of PW1. Taken together, all these accounts formed a vivid res gestae narrative of abuse, corroborated by medical and scientific evidence, and pointing consistently to the appellant as the perpetrator. 6.Placed on his defence the appellant in a sworn statement denied committing the offence. He stated that he was framed by his former wife and mother to PW1 due to domestic disagreements and a loan of Kshs.30,000/= which she had advanced him but which he had failed to repay her. He claimed that PW1 had been coerced to implicate him by PW3 so as destroy his current marriage. His new wife, DW2 MAN, supported this narrative, testifying that PW3 wanted to reconcile with the appellant and, upon his refusal, she framed him. 7.The trial court in its judgment held that the prosecution had discharged its burden of proof by establishing all the essential ingredients of the offence of incest; that PW1 was a minor was addressed through her birth certificate and corroborated by PW3’s testimony. It further held that the appellant was her biological father, a relationship confirmed by documentary evidence and DNA analysis, thereby satisfying the requirement of consanguinity. 8.On penetration, the trial court relied on the direct testimony of PW1 and SC, who gave detailed accounts of the sexual encounters, threats, and circumstances under which they were sexually assaulted by the appellant. Their evidence was consistent, credible, and corroborated by PW3, PW4. PW5, and CW1. It rejected the defence narrative of fabrication, finding that whatever domestic disagreements existed between the appellant and PW3 could not explain away the pregnancy or the forensic findings. It dismissed the suggestion that these two were sexually active with other men as speculative and unsupported, and equally rejected the challenge to the chain of custody of DNA samples, holding that the government analyst’s testimony was credible and the scientific findings reliable. It concluded that the prosecution witnesses were truthful and their accounts carried the immediacy of res gestae, while the defence case was riddled with inconsistencies and lacked probative value. It accordingly convicted the appellant and, noting the aggravating circumstances of incest and the psychological trauma inflicted on PW1 as a result, imposed the ultimate sentence of life imprisonment describing the appellant’s actions as vile and despicable and deserving condemnation in the strongest terms possible. 9.Aggrieved by the conviction and sentence, the appellant lodged an appeal to the High Court of Kenya at Kisumu complaining that: the sentence imposed was manifestly harsh; his constitutional rights were violated as he was not accorded adequate time and facilities to prepare his defence; relied on shoddy investigations; failure to adequately consider his defence; and finally, that the period spent in custody pending trial pursuant to section 333(2) of the Criminal Procedure Code was not factored in the sentence. 10.The first appellate court re-evaluated the evidence as required of it and, in the end, found no merit in the appeal and dismissed it in its entirety. 11.The appellant still dissatisfied with the findings of the two courts below, is now before this Court for his maybe last bite of the same cherry, on two main grounds: that the first appellate court erred in law by upholding a conviction and sentence which emanated from an unfair trial; and in imposing a sentence of life imprisonment. 12.When the appeal came up for hearing, the appellant was present virtually from Kisumu maximum prison while Ms. Busienei, learned prosecution counsel appeared for the respondent. Both parties elected to wholly rely on their respective written submissions that they had filed and exchanged in canvassing the appeal. 13.The appellant, submitted that the trial process was fundamentally flawed, unjustifiable, and harsh, thereby occasioning an unfair trial contrary to Articles 27 and 50 of the Constitution. He emphasized that every accused person is entitled to equal protection of the law, the presumption of innocence, and the right to adduce and challenge evidence. 14.He argued that the trial court erred in declining his request for a fresh DNA test, noting that the issue was not whether the test was conducted at the Government Chemist, but rather which Government Chemist, which analyst, and whether proper DNA protocols were observed. The appellant maintained that he was denied the opportunity to participate in or observe the extraction of samples, thereby undermining the integrity of the DNA evidence. 15.Further, the appellant faulted both courts below for failing to properly evaluate glaring contradictions in the medical evidence. He pointed out that while Muhoroni County Hospital estimated the gestation period at 28 weeks. St. Jairus Hospital’s clinical summary indicated a gestation period of only 20 weeks and 4 days, with no foetal heart. He submitted that this discrepancy impeached the credibility of the prosecution’s case and demonstrated manipulation of medical evidence to align with the alleged offence. 16.He argued that the prosecution’s reliance on DNA evidence alone, in the face of contradictory medical reports, amounted to reliance on corrupted evidence prepared in bad faith. He invoked Article 50(4) of the Constitution, submitting that evidence obtained in violation of rights must be excluded or rejected if its admission renders the trial unfair. 17.He further contended that the conviction was not founded on sound evidence, as PW1’s evidence was riddled with inconsistencies and fabrications. He urged the court to adopt the reasoning in Dickson Ema Nsamba Shapwata & Another v Republic (Criminal Appeal No. 92 of 2007, Tanzania Court of Appeal), where it was held that discrepancies must be evaluated holistically and not in isolation. In the end he prayed that this Court allows the appeal in its entirety. 18.Ms. Busienei, in response, submitted that the appeal was devoid of merit and ought to be dismissed in its entirety. Counsel submitted that the prosecution proved all the ingredients of the offence of incest beyond reasonable doubt. She argued that (PW1) positively identified the appellant as her father, corroborated by SC and PW3, and supported by documentary evidence including the birth certificate. Further, the DNA analysis confirmed that the appellant was the biological father of the foetus that PW1was carrying, thereby establishing the familial relationship and penetration. The age of PW1 was proved through oral testimony and documentary evidence showing she was 15 years old at the time of the offence. 19.On identification, Ms. Busienei submitted that PW1’s testimony was clear and consistent, describing how the appellant lured her into his house, sprayed her with a powder mixed in water, and repeatedly defiled her while threatening her with a knife. She noted that the appellant was well known to PW1 as her father, making the identification proper and eliminating any possibility of mistaken identity. 20.On sentence, she argued that life imprisonment is the statutory ultimate sentence under the Sexual Offences Act, and the Supreme Court in Republic v Mwangi; ISLA & 3 others (Petition E018 of 2023) reaffirmed the legality of mandatory and minimum sentences in the Sexual Offences Act. She emphasized that the appellant’s lack of remorse and the tender age of PW1 were aggravating factors warranting the severe sentence imposed. Lastly, Ms. Busienei urged the Court to uphold the conviction and sentence by dismissing the appeal in its entirety. 21.This being a second appeal, our duty under section 361(1) of the Criminal Procedure Code and as enunciated in many decisions of this Court including but not limited to Njoroge vs Republic [1982] KLR 388, is to consideration of points of law only. Again, in such an appeal, the Court is bound by the concurrent findings of the two courts below, unless those findings are shown not to have been based on evidence at all. 22.On the basis of this framework, the issues of law for determination in this appeal are whether: the two courts below properly admitted and relied upon DNA evidence, contradictions in medical evidence amounted to a misdirection in law, the appellant’s fair trial rights under Article 50 of the Constitution were infringed, and whether the sentence imposed was lawful. 23.On the challenge of DNA Evidence by the appellant, we note that both the courts below correctly admitted and relied on the said evidence. The law is that, expert evidence though treated and appreciated as opinion evidence, is nonetheless admissible and has probative value when properly tendered. section 48(1) of the Evidence Act provides as follows:48(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions.” 24.Further, in Mutonyi v Republic [1982] KLR 203, the Court held that expert evidence is admissible where the expert is qualified and the report is properly tendered. In this case, the DNA analysis was conducted by the Government Chemist, a recognized expert, which confirmed that the appellant was the biological father of the foetus carried by PW1. Though the appellant questioned the mode of extraction and custody of the specimen, he did not lead any evidence suggesting that it was extracted by an unauthorised person or that, the way it was kept led its contamination or being compromised. His further argument that the trial court erred in declining his request for a fresh DNA has no basis at all, as he never laid a firm basis for such demand. 25.The issue as to which Government Chemist, and whether proper procedures were adhered to in undertaking the exercise for the aforesaid reasons falls in the same cesspool. The same goes for the appellant’s demand that he was denied the opportunity to participate in or observe the extraction of samples, thereby undermining the integrity of the DNA evidence. Of interest however is that the appellant never raised all these issues with CW1 when he testified. Besides, all these complaints appear to matters of fact which we are statutorily barred from considering at this stage. 26.As regards contradictions in Medical Evidence, the appellant pointed to contradictions in the reports from Muhoroni County Hospital and St. Jairus Hospital regarding the gestation period of the foetus. The law is that minor discrepancies do not vitiate a conviction if the substance of the evidence proves the offence. The court in the case of Joseph Maina Mwangi versus Republic - Criminal Appeal No.73 of 1993, held inter alia that:“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of Criminal Procedure Code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentence.” 27.From the appellant’s written submissions, the alleged, contradictions and inconsistencies raised are in respect of the testimonies of PW1, PW2 and PW4 largely on how PW4, responded to the reports and medical examinations following the pregnancy of PW1. Save for purposes of consistency, these matters concern events subsequent to the commission of the offence and therefore carry no probative weight in so far as proof of the prosecution’s case against the appellant is concerned. 28.As noted by the Uganda Court of Appeal in Twehangane Alfred vs Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6, it is not every contradiction that warrants rejection of evidence. As the court put it:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 29.It is evident from the record that what the trial court relied upon to convict the appellant, and what the first appellate court affirmed, was the clear, truthful and believable account of the incestuous acts committed by the appellant, corroborated by medical evidence and DNA analysis which confirmed paternity of the foetus. The alleged contradictions and inconsistencies do not impugn the fact that PW1 became pregnant as a result of the incestuous relationship with the appellant. What the appellant has therefore invited this Court to do is to depart from the concurrent findings of fact by the two courts below, findings which were properly grounded in law and evidence. In Daniel Kabiru Thiongo vs Republic - Nyeri Criminal Appeal No.13 of 2002 (UR) the court gave this caution:“An invitation to this court to depart from concurrent findings of fact by the trial and first appellate court should be declined by the second appellate court, unless it is shown that there are compelling reasons for doing so.” 30.We find no compelling reasons in the instant appeal for us to so depart from the said concurrent findings of fact by the two courts below as they were founded on solid evidence on the record. Again and in any event they are all matters of fact. 31.Turning to alleged violation of Fair Trial Rights under Article 50 of the Constitution of Kenya, the record shows that the appellant was present throughout the proceedings, cross-examined witnesses, and was given opportunity to adduce evidence in his defence. We note further, his contention that the DNA sampling process was conducted in violation of the court order and without his participation or representation. Although the order directed that the Investigating Officer to escort the victim, the appellant, and the foetus to the Government Chemist in Kisumu for proper sampling, police officers instead took blood samples of the dead foetus at St. Jairus Hospital in his absence. CW1, confirmed under cross-examination that he advised the police to take blood samples at the hospital for scientific reasons. 32.Article 50(2)(j) of the Constitution of Kenya guarantees every accused person the right to a fair trial, including the entitlement “to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.” This Court has consistently underscored the duty of disclosure by the prosecution, as articulated in R v. Ward and affirmed in Thomas Patrick Gilbert Cholmondeley v. Republic [2008] eKLR, where it was held that to satisfy the constitutional requirements of a fair trial, the prosecution must provide an accused person, in advance of trial, with all relevant material such as witness statements, documentary exhibits, and similar items. However, in the instant case, the appellant’s complaint does not directly relate to this disclosure obligation under Article 50(2)(j), for the record demonstrates that he was duly represented, cross-examined witnesses, and was afforded opportunity to adduce evidence. His grievance was instead directed at the evaluation of medical and DNA evidence. We have already addressed this issue substantively elsewhere in this judgment and we need not repeat. In our view therefore there was no demonstration of prejudice or violation of his constitutional rights by the appellant. 33.On sentence, section 20(1) of the Sexual Offences Act prescribes life imprisonment as maximum sentence for incest with a minor. The Supreme Court in Republic v Mwangi; ISLA & 3 others (supra), reaffirmed the legality of mandatory and minimum sentences under the Sexual Offences Act. Therefore, the sentence imposed was lawful and properly affirmed by the High Court. We have no reason or basis to interfere 34.In the end, we are satisfied that the prosecution proved the case beyond reasonable doubt against the appellant in all material aspects. Accordingly, the appeal is dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIK-MAKHANDIA………………………………………………JUDGE OF APPEALE.C. MWITA………………………………………………JUDGE OF APPEALB. ONGAYA………………………………………………JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR