https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8965

DMN v Republic (Criminal Appeal E053 of 2023) [2026] KEHC 8965 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 8965 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E053 of 2023 KL Kandet, J June 26, 2026 Between DMN Appellant and Republic Respondent (Appeal from the Judgment dated 23rd September, 2023 and sentence delivered in Makindu SPM Court Criminal Case No. E064 of 2021 by Hon. J.D. Karani) Judgment 1.This Appeal arises from the conviction and sentence of the Appellant in Sexual Offences Case No. E064 of 2021, in which the Appellant was charged with the offence of incest contrary to section 20(1) of the Sexual offences Act. 2.The particulars were that on different dates between 1st March, 2020 and 8th July, 2021, at [Particulars Withheld], Kibwezi sub-county, within Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of KK, a child aged 12 years who was to his knowledge his niece. 3.In the alternative, he was charged with Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars being that on the said dates and place, he intentionally and unlawfully touched the vagina of KK., a child aged 12 years who was to his knowledge his niece, with his penis 4.The Appellant pleaded not guilty to both counts and the matter proceeded to full trial wherein the prosecution called five witnesses. At the close of the Prosecution case the trial Court found the Appellant had a case to answer. He gave a sworn testimony and at the close of the hearing the trial Court convicted the Appellant on the main charge and sentenced him to serve 15 years imprisonment. 5.Aggrieved by both the conviction and sentence, the Appellant preferred the Appeal herein. The grounds are that:a.That, he pleaded not guilty to the charges during trial.b.That, the prosecution case is replete with monumental inconsistencies and contradictions which would have attracted an acquittal verdict.c.That, the trial court erred both in law and fact by failing to conduct holistic scrutiny of the whole evidence on record to base its conviction and sentence.d.That, he couldn't recall all that transpired during trial hence plead to this Hon. Court to furnish him with the lower court proceedings and judgment transcripts.e.That, upon receipt of the transcripts do hereby pray that, if need be, I would be accorded leave to file additional, supplementary, substituted or either amended grounds of appeal pursuant to section 350(v) of the C.P.C. 6.Briefly, the facts of the case were that sometime in January 2020, KK, the complainant, went to live with the Appellant, her maternal uncle, since he had a sick son and wanted her to assist them in cooking and cleaning the house. When the Complainant came home from school, the accused, in the evening, would defile her. She stated that the same was repeated severally. The matter was noted by a teacher who took her to hospital for examination and the matter was reported to the police who recorded statements and caused the Appellant to be arrested. 7.Upon being placed on his defence, the Appellant gave a sworn statement but did not call any witness. The trial court considered evidence on record and reached the finding to convict and sentence the Appellant. Analysis and Determination 8.This being a first appeal, this Court is duty bound to subject evidence adduced before the trial court to a fresh evaluation and analysis bearing in mind the fact of not having had the opportunity of hearing the witnesses and observing their demeanor. This was stated in Okeno v Republic [1972] EA 32 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 v. Republic (1957) E.A. (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 v. R. (1957) E.A. 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 trial court has had the advantage of hearing and seeing the witnesses, See Peters V. Sunday Post, (1958) E.A. 434).” 9.The Appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act . The Section provides:“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.” 10.To sustain a conviction under this provision, the prosecution was required to prove beyond reasonable doubt that:a)there was penetration,b)the complainant was related to the Appellant within the prohibited degree of consanguinity prescribed under the Act, andc)for purposes of sentence, the age of the complainant. 11.On the question of age, the charge sheet indicates the victim was twelve (12) years old. A birth certificate produced in evidence confirmed that she was born on 29th April, 2009. The evidence regarding age was not challenged. Accordingly, this Court is satisfied that the prosecution proved beyond reasonable doubt that the Complainant was a child aged twelve years at the material time. 12.As regards the relationship between the Complainant and the Appellant, the evidence on record established that the Complainant was the Appellant’s niece. The Complainant’s testimony on the issue was not disputed and the Appellant himself did not contest the existence of that relationship. The prosecution therefore proved the degree of relationship contemplated under section 20(1) of the Sexual Offences Act. 13.The next issue for determination is whether penetration was proved. Penetration is defined by Section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of one person into the genital organs of another. 14.The Complainant gave a detailed account of the acts complained of and identified the Appellant as the perpetrator. Specifically, she testified that in January 2020 after leaving school, the Appellant would ask her to enter his room. If she refused, the Appellate would threaten to beat her. He would remove her inner-wear and all her clothing leaving her naked while he also stripped himself. The Appellant would instruct her to lie on the bed then position himself on top of her and engage in inappropriate acts. He would touch her breasts and vagina with his penis ultimately inserting his penis inside her vagina. The Appellant repeated the abuse severally after every 2 days. 15.Approximately a month later, the Complainant reported the matter to her teacher, Madam Mutuku, who took her to Kambu Sub-County Hospital for examination. PW3, Muoki Masili Samuel, the doctor at Kambu Sub-County Hospital, presented a medical report (P3) and a PRC form as evidence. The physical examination revealed the complainant had an inflamed labia minora and majora with old healed scars linear around the vulva, a pink vulva and a broken hymen consistent with an old scar. The injuries sustained by the complainant indicated a pattern over time. The Complainant identified the Appellant and his son as the individuals who defiled her. Based on the testimonies of the Complainant and PW3, it is clear that penetration occurred. Her testimony was clear, consistent and unwavering. The medical evidence further established injuries consistent with previous sexual penetration and lent credence to the Complainant’s testimony. 16.The Appellant denied the allegations and contended that the complaint was fabricated. However, no evidence was tendered to support the alleged fabrication or demonstrate any ill motive on the part of the Complainant to falsely implicate him. The Appellant claimed that the allegations were maliciously fabricated by the complainant’s teacher, Madam Mutuku, who was also the employer of the Appellant’s son, following his son’s alleged unexplained departure from his job. He argued that, as a result, the complaint was false. Additionally, the appellant asserted that the injuries observed on the complainant were merely old scars. He denied committing the offense and suggested that the injuries could have been sustained elsewhere. 17.The trial Court considered that defence and rejected it. The Court has independently re evaluated the evidence and finds no basis for interfering with that finding. The Complainant’s testimony was coherent and remain unshaken during cross examination. Furthermore, the medical evidence provided corroboration of her account. 18.The Appellant also alleged that the prosecution case was riddled with contradictions and inconsistencies. However, he neither identified nor demonstrated any material contradiction capable of affecting the substance of the prosecution case. The Court has relied on the principles set out in Twehangane Alfred v Uganda (Criminal Appeal No. 139 of 2001) [2003] UGCA 6. It is settled that minor discrepancies which do not go to the root of the case do not render otherwise credible evidence unreliable. Only material contradictions that create doubt as to the guilt of an accused person warrant interference by the appellate Court. Upon review of the record, this Court finds no material inconsistency capable of weakening the prosecution case. 19.The Court is also mindful of the provisions of Section 124 of the Evidence Act, which permit conviction in a sexual offense case on the sole testimony of the victim where the Court records reasons for believing that witness. The complainant gave a coherent account of the repeated acts of sexual abuse and her evidence remained unshaken during cross-examination. 20.In NLZ v Republic [2025] KEHC 10236 (KLR) the court stated that;“ 16.The only evidence of the alleged offence is that of the Complainant. The proviso to Section 124 of the Evidence Act allows the court to receive evidence of an alleged victim of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. (emphasis) 17.For a court to convict an accused person of a sexual offence only on the basis of the evidence of the victim, such court must be satisfied that the victim is telling the truth. In its judgment, the trial court was persuaded by the Complainant’s testimony and found no reason why the Complainant, a small child, would fabricate charges against the Appellant with whom she had lived well. She found that the Appellant’s defence did not shake the prosecution case. 18.I have carefully considered the evidence of the Complainant. She clearly stated how the Appellant defiled her on a number of occasions during the absence of her mother and when her mother was asleep. Her evidence was consistent and without any contradictions and the same is believable.” 21.In the present case, the Complainant’s evidence was not only credible but was also supported by medical evidence. The trial court found the complainant to be a credible witness and observed that her testimony was consistent and corroborated by the medical evidence. Upon re-evaluating the record, this Court finds no reason to depart from that assessment. 22.Having re considered the entire record, this Court is satisfied that the prosecution proved beyond reasonable doubt that the complainant was a child aged twelve years, that she was the Appellant’s niece and the Appellant committed acts amounting to penetration. The essential ingredients of the offence of incest were therefore established. 23.On sentencing, the Court of Appeal in Bernard Kimani Gacheru –Vs- Republic (2002) eKLR, stated that: -“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist”. 24.The Appellant in this case was sentenced to fifteen (15) years imprisonment. The principles upon which an Appellate Court may interfere with sentence are now settled as illustrated in the above case. An Appellate Court will not ordinarily interfere with the discretion of a trial court unless it is shown that the court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor, imposed an illegal sentence, or that the sentence is manifestly excessive in the circumstances of the case. 25.Having considered the record and the circumstances under which the offence was committed, this Court finds no basis for interfering with the sentence imposed by the trial court. The Appellant abused a position of trust as the complainant's uncle and guardian. The offence was not an isolated incident but occurred over a period of time. The sentence imposed cannot therefore be said to be excessive or founded on any error of principle warranting appellate intervention. 26.Consequently, this Court finds that the conviction entered by the trial court was safe and supported by the evidence on record. The appeal against conviction and sentence is devoid of merit. 27.In the result, the appeal is hereby dismissed. The conviction and sentence imposed by the trial court are upheld. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE,2026 VIRTUALLY THROUGH THE MICROSOFT PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Appellant Present From Makueni Gk PrisonMs Otulo For The StateCourt Assistant: Aggrey Ochieng