https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1080

DOK v Republic (Criminal Appeal E027 of 2022) [2026] KECA 1080 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1080 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E027 of 2022 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 29, 2026 Between DOK Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Kakamega (Musyoka, J.) dated 7th May, 2020, in HCCRA. No. 68 of 2019 Criminal Appeal 68 of 2019 ) Judgment 1.The appellant, DOK, was charged before the Senior Principal Magistrate’s Court at Mumias with the offence of incest contrary to Section 20(1) of the Sexual Offences Act. The particulars of the offence were that on 5th April, 2018, in Mumias East Sub- County, within Kakamega County, the appellant intentionally and unlawfully caused his penis to penetrate vagina of MNO, a child aged 14 years who to his knowledge is his daughter. 2.In the alternative, the appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the charge alleged that on the same date and place, the appellant intentionally caused his penis to come into contact with the vagina of MNO, a child aged 14 years. 3.The appellant denied the charge prompting the trial in which the prosecution called a total of five (5) witnesses. The complainant (PW1) told the court that the appellant is her father, and that she lived with him and her step-mother. It was her testimony that on 5th April, 2018, she was at home with her step-mother and her siblings, G and C. At about 1.00 p.m., the appellant returned home and went to the room where the complainant and her siblings ordinarily slept. He then took the complainant’s step-mother to another room within the homestead. Thereafter, he returned and assaulted G and C for allegedly failing their examinations, before taking them to the room where their step-mother was. He subsequently came back to where the complainant was, locked the door, picked a piece of firewood and struck her with it, causing her to fall to the ground, after which he removed her underwear. He then lowered his trousers and inserted his penis in her vagina. 4.The complainant testified that she reported the incident to her uncle who lived within the homestead. Her uncle advised her to inform her grandfather. However, before she could get to her grandfather’s house, the appellant intercepted her and took her back to the house where he defiled her for a second time. He then left and locked her in the room. He later brought back her siblings G and C. They slept. For the next two days the complainant stated that the appellant kept a close eye on her to ensure she did not inform anyone of the ordeal. 5.On the third day her uncles came home and informed the appellant that they needed to take the complainant to hospital for treatment as they had been informed that the appellant had assaulted her. However, her uncles instead took her to her grandmother’s (PW2) home where she found her biological mother. They took her for medical examination at Makunga Hospital, and thereafter reported the incident at Shianda Police Post. 6.PW2, EM, the complainant’s grandmother testified that on 7th April, 2018, one JM, a teacher, came to her home and informed her that the complainant had been assaulted and defiled by the appellant. PW2 sent her sons to go and fetch the complainant from the appellant’s house. She stated that the complainant told her that the appellant beat her together with her siblings, after which he locked her in a room and defiled her. She stated that she reported the incident to her paternal uncle but he feared for his life and instead referred her to her paternal grandfather. PW2 testified that she took the complainant to Makunga Hospital for treatment. They also made a report at Shianda Police Station. 7.PW3, JBK, a neighbour to the appellant and a village elder, testified that on 6th April, 2018, she was informed by the appellant’s step-mother that the complainant’s uncle had reported to them that the appellant had assaulted and defiled his daughter. PW3 went to the appellant’s house that morning but she was not able to locate the complainant. She stated that she went back in the afternoon and saw the complainant outside their house. Her face was swollen. She had covered herself in a scarf. PW3 reported the matter to the area assistant chief. It was her evidence that the appellant was a violent person who used to assault his wives. 8.PW4, Mila Ombuya, a clinical officer based at Makunga Health Centre at the material time, testified that she examined the complainant on 8th April, 2018. The complainant was alleged to have been physically and sexually assaulted by her father. She stated that the complainant’s eyes, neck and legs were swollen. Her vagina was bruised and had a white smelly discharge. Her hymen was torn. PW4 formed the opinion that penetration had occurred. 9.PW5, IP Fredrick Okuta, of Shianda Police Patrol Base investigated the case. He testified that on 9th April, 2018, at 1.00 p.m., he was at the police patrol base when the complainant came accompanied by PW2. The complainant was walking with a gait. They reported that her father had sexually assaulted her. The complainant informed him that the appellant beat her and her siblings for failing their examinations. He then locked her in a room and defiled her. The complainant attempted to go to her paternal grandfather’s house to report the incident but the appellant caught up with her, brought her back to the house, and defiled her again. The appellant then locked her in the house. She was rescued a few days later by her maternal uncles who had been sent to fetch her by PW2. 10.PW5 further testified that they tried to arrest the appellant on several occasions but to no avail. They however finally arrested him on 21st May, 2018. He testified that he could not call the complainant’s siblings as witnesses as they feared for their life. 11.On his part, the appellant gave a sworn statement. It was his evidence that on the material date, he went to work and returned home at 8.00 p.m. His wife informed him that the children, that is the complainant, G and C, had closed school. He reviewed their school report cards and noticed that they had failed their examinations. He went to their room and beat them up. His wife advised him to go back to the main house which he did. He denied the allegation that he had sexually assaulted the complainant. It was his testimony that the complainant’s grandmother (PW2) had always desired to have custody of the complainant and that the charges brought against him were fabricated to achieve that objective. 12.The appellant’s wife, JAO, testified as DW2.She reiterated the events of the material day as narrated by the appellant. She stated that she only witnessed the appellant physically assault the children and not the alleged defilement. 13.DW3, CO, and DW4, GO, testified that on the material date at about 8.00 p.m., they were at home with the complainant when the appellant arrived and caned them for failing their examinations. They stated that DW2 later intervened and asked the appellant to retire to bed, after which they all went to their respective rooms. It was their evidence that nothing happened to the complainant that night. They further stated that they wished their father to be released so that they could return to school. 14.The learned trial magistrate, upon assessing and analyzing the evidence tendered before the court, found the appellant guilty as charged in main charge of incest. The appellant was thereafter sentenced to serve life imprisonment. 15.The appellant, aggrieved by this decision, filed an appeal before the High Court at Kakamega. In his petition of appeal, the appellant challenged his conviction and sentence on grounds that: the evidence against him was fabricated, uncorroborated and inconsistent; the medical evidence did not support the evidence of penetration; the appellant was not subjected to medical examination; the case was poorly investigated; the learned magistrate shifted the burden of proof to the appellant; and finally, that the sentence imposed upon him was excessive in the circumstances. 16.In a judgment dated 7h, May 2020, the first appellate Court dismissed the appellant’s appeal both on conviction and sentence. 17.The appellant is now before this Court, seeking to overturn the decision of the first appellate court. He has proffered six grounds of appeal. The appellant faulted the learned Judge for failing to re-evaluate afresh the evidence on record and come up with an independent decision. He was aggrieved that the learned Judge failed to appreciate that the prosecution amended the charge and failed to avail him the opportunity to recall witnesses in accordance with Section 214 of the Criminal Procedure Code. He contended that his defence was not given due consideration. He was of the view that the case was poorly investigated, and was based on hearsay and fabricated evidence. He faulted the learned Judge for failing to appreciate that the offence disclosed initially was that of assault, and that the charge of defilement was an afterthought intended to settle personal scores. Lastly, he complained that the sentence imposed upon him was harsh and excessive in the circumstances. 18.The appeal was canvassed by way of written submissions duly filed by both parties. The appellant appeared in person. It was his submission that the first appellate court failed to reappraise the evidence on record and come to his own conclusion. He maintained that the Court did not take into account his defence in his judgment. He pointed out that the defence witnesses were categorical that the appellant did not defile the complainant. He was of the view that the trial court improperly relied on Section 124 of the Evidence Act in convicting him, and that the learned magistrate failed to warn herself of the danger of basing a conviction on the uncorroborated testimony of a complainant. 19.It was the appellant’s further submission that the trial court failed to inform him of his right to recall the witnesses, after the prosecution amended the charge sheet, which was contrary to the provisions of Section 214 of the Criminal Procedure Code. He maintained that the charges against him were fabricated due to an existing grudge between himself and PW2. He submitted that the medical evidence failed to support the allegation of penile penetration, and that the introduction of the defilement charge at a later stage of the proceedings spoke to a frame up. On sentence, the appellant submitted that the sentence meted was the maximum sentence provided. The trial court failed to exercise its discretion and impose a lesser sentence. 20.In rebuttal, Assistant Director of Public Prosecutions, Ms.Mwaniki, made submissions to the effect that the case against the appellant was proved beyond any reasonable doubt. She submitted that the fact that the appellant was the complainant’s father was not disputed. She argued that the complainant’s testimony that she was fourteen (14) years of age at the material time was corroborated by her birth certificate produced in evidence. She maintained that the evidence of the complainant established the element of penetration. She explained that the complainant narrated how the appellant went to the children’s room and physically assaulted her and her siblings for failing their examinations. He thereafter took the complainant’s siblings to another room, after which he came back and hit the complainant with a piece of firewood. She fell to the ground. The appellant removed her underwear and then defiled her. The appellant defiled the complainant again after he stopped her from reporting the incident to her paternal grandfather. 21.Counsel maintained that the complainant’s evidence on penetration was corroborated by medical evidence by PW4. She opined that the trial court properly invoked Section 124 of the Evidence Act, and that the appellant’s conviction was safe. On sentence, Ms. Mwaniki submitted that the appellant’s mitigation was considered against the circumstances of the case. The learned Judge found that the sentence of life imprisonment was appropriate in the circumstances. She invited us to dismiss the appeal on both conviction and sentence. 22.This is a second appeal. The mandate of this Court on a second appeal is confined to matters of law only, unless it is shown that the courts below considered matters they should not have considered, or failed to consider matters they should have considered, or looking at the entire decision, it is perverse. In the case of Kaingo vs Republic [1982] KLR 213 this Court stated thus:“A second appeal must be confirmed to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court found as it did (Reuben Karoti S/O Karanja versus Republic [1956 17EACA 146].” 23.We have carefully considered the record, the grounds of appeal, and the rival submissions set out above, in light of this Court’s mandate. In our opinion, the following issues of law arise for our determination:i.Whether the prosecution proved the offence of incest beyond reasonable doubt;ii.Whether the appellant’s rights under Section 214 of the Criminal Procedure Code were violated;iii.Whether the defence was duly considered; andiv.Whether the sentence imposed was excessive. 24.With respect to the first issue, the prosecution was required to establish: the identity of the offender; proof of penetration; and that the complainant was within the prohibited degree of consanguinity relationship to the appellant. In the present case, the relationship between the appellant and the complainant was not disputed, the complainant having testified that the appellant was her biological father. The fact that the complainant was fourteen (14) years of age at the time was also not contested. Her birth certificate which was produced in evidence proved that she was fourteen years old at the time of the sexual assault. 25.The crux of the appeal is that the appellant denied defiling the complainant. He contended that penetration was not proved and that the complainant’s testimony was incredible and uncorroborated. We have carefully reconsidered the evidence on record and are satisfied that the element of penetration was proved beyond reasonable doubt. The complainant was categorical in her testimony that after assaulting her and her siblings, the appellant sent the siblings away, returned to the room where she was, removed her underwear, lowered his trousers and inserted his penis into her vagina. She further testified that when she attempted to report the incident to her paternal grandfather, the appellant intercepted her, returned her to the house and defiled her for a second time. Her narration of events was detailed, consistent and unwavering throughout her testimony. 26.The complainant’s evidence on penetration was corroborated by the medical evidence adduced by PW4, Mila Ombuya, the clinical officer who examined her on 8th April, 2018. PW4 testified that the complainant’s vagina had bruises and fresh lacerations. There was a white smelly discharge. She also observed that the hymen was torn and formed the opinion that penetration had occurred. Although PW4 did not specify the age of the hymenal tear, the presence of fresh lacerations on the complainant’s genitalia was consistent with recent sexual penetration and lent credence to the complainant’s account of the events of that day. 27.Further corroboration emerged from the surrounding circumstances. PW3, the village elder, testified that she learnt from the complainant’s relatives that the complainant had been assaulted and defiled by the appellant. She visited the appellant’s home and later saw the complainant outside the house with a swollen face covered in a scarf. The evidence of PW2 was that upon receiving information from a teacher that the complainant had been assaulted and defiled, she sent her sons to retrieve the complainant from the appellant’s home. PW2 testified that once rescued, the complainant narrated to her how the appellant had defiled her after beating her and her siblings. The evidence of PW3 and PW2 was therefore consistent with the complainant’s account that she had been defiled, confined and later rescued by her maternal uncles. 28.In any event, Section 124 of the Evidence Act permits a court to convict on the sole evidence of a complainant in sexual offences if the court believes the complainant is telling the truth and records the reasons for such belief. In the present case, the trial court expressly found the complainant to be truthful and credible witness. We find no reason to interfere with the concurrent findings of fact by the two courts below. Moreover, the complainant’s testimony was not wholly uncorroborated, as it was supported by medical and circumstantial evidence. 29.The appellant’s defence was that the charges against him were fabricated by PW2, the complainant’s grandmother, who allegedly desired to take custody of the complainant. Both PW1 and PW2 denied the existence of any such fabrication. We find that this was a bare allegation, and that the evidence on record consistently pointed to the appellant as the perpetrator of the offence. The two courts below duly considered the appellant’s defence together with the testimony of DW2, DW3 and DW4, and correctly found that the same did not displace the cogent, credible and corroborative prosecution evidence. 30.Of particular significance is the trial court’s observation regarding the evidence of DW3 and DW4, who were minors. The court noted that their testimonies appeared rehearsed and consistent in structure, particularly in the manner in which they both concluded their evidence by stating that they wished their father to be released so that they could return back to school. The court was entitled to consider this aspect of their demeanour and the uniformity of their responses as part of its assessment of their credibility. In the circumstances, we find no basis to fault the trial and the first appellate court’s conclusion that the defence evidence did not raise any reasonable doubt in the prosecution’s case. We similarly dismiss the allegation of fabrication as unsubstantiated. 31.The appellant further contended that the defilement charge was introduced at a later stage of the proceedings as an afterthought. This assertion is not borne out by the record. The appellant was from the outset charged with incest contrary to Section 20(1) of the Sexual Offences Act, together with a second count of assault causing actual bodily harm. The record shows that the prosecution subsequently opted to withdraw the second count, being of the view that the assaultive conduct was sufficiently encapsulated within the evidence supporting the main count of incest. 32.In our considered view, the amendment did not introduce a new or different charge so far as the incest charge was concerned. The substance of the prosecution case remained unchanged throughout, namely that the appellant sexually assaulted the complainant, who was his daughter. The appellant was fully aware of the nature and particulars of the charge he faced and actively participated in the trial. He cross-examined all prosecution witnesses extensively on the allegations forming the basis of the incest charge, and at no point was he taken by surprise or disadvantaged in the presentation of his defence. We are therefore satisfied that the complaint that the charge for which the appellant was convicted was an afterthought is without merit. 33.We further note that the issue relating to compliance with Section 214 of the Criminal Procedure Code was raised for the first time at this second appellate stage. It was not a ground before the first appellate court, nor was it specifically canvassed and determined in that court. Such a ground cannot be used to vitiate the decision of the first appellate court, which was never invited to pronounce itself on the issue. (See the decision of this Court in Wamalwa v Republic (Criminal Appeal 224 of 2020) [2024] KECA 742 (KLR) (21 June 2024) (Judgment)). 34.In any event, even if we were to consider the issue on its merits, we are satisfied that no prejudice was suffered by the appellant. He was called upon to plead afresh after the amendment of the charge and fully participated in the trial, including cross- examining all prosecution witnesses on the substance of the incest charge. The amendment did not alter the core of the prosecution case, and the appellant has not demonstrated that any miscarriage of justice arose therefrom. Accordingly, this ground of appeal fails on both procedural and substantive bases. 35.The final issue relates to the appellant’s sentence. The appellant was of the view that the life imprisonment sentence imposed upon him was excessive, and that the penalty of life imprisonment under Section 20(1) of the Sexual Offences Act was discretionary as a maximum sentence, and not mandatory. 36.Section 20 (1) of the Sexual Offences Act provided thus:“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.” (emphasis ours) 37.This Court in GRD v Republic (Criminal Appeal 90 of 2022) [2025] KECA 59 (KLR), guided by the East African Court’s interpretation in Opoya v Uganda [1967] EA 752, held that the words “shall be liable” provide for a discretionary maximum penalty; the trial court retains discretion to impose a sentence between the statutory minimum of ten years and life imprisonment where the victim is under the age of eighteen years. 38.It is therefore clear that the sentence of life imprisonment in this case is discretionary and not mandatory. From the record, the trial court properly appreciated this position and considered that discretion in sentencing the appellant. It weighed the appellant’s mitigation against the circumstances of the offence, including the fact that the complainant was his biological daughter under his parental care, that the offence involved a grave breach of trust, and that the complainant suffered psychological trauma as a result of the incident. The court further took judicial notice of the prevalence of sexual offences within its jurisdiction and the need for deterrence. 39.The first appellate court, upon its own independent evaluation, agreed with the trial court’s reasoning and upheld the sentence. We find no basis upon which to fault the concurrent findings of the two courts below. The appellant has not demonstrated that the two courts misdirected themselves in principle, took into account irrelevant considerations, or failed to consider relevant factors in a manner that would justify interference by this Court. In the circumstances, we are satisfied that the sentence of life imprisonment was neither excessive nor unlawful. In any event, the appellant has not placed any evidence before us that both courts below wrongly exercised their sentencing discretion. 40.In the end, having carefully re-evaluated the entire record of appeal, the grounds raised by the appellant, and the submissions of both parties, we find that the appeal lacks merit. The conviction was safe and properly founded on both the law and the evidence. The sentence imposed was lawful and justified in the circumstances of the case. Accordingly, the appeal against conviction and sentence is hereby dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026.ASIKE-MAKHANDIA....................................JUDGE OF APPEALH.A. OMONDI....................................JUDGE OF APPEALL. KIMARU....................................JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR.