https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9275

EGE v Republic (Criminal Appeal E082 of 2025) [2026] KEHC 9275 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9275 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E082 of 2025 WN Molonko, J June 25, 2026 Between EGE Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. S.N. Mutava in Rongo Law Courts Cr. S.O No. E32 of 2024) Judgment 1.The Appellant was charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. He equally faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2.The particulars of the offence were that on diverse dates between the month of January 2023 and 20th October 2024, at [Particulas withheld] area,[Particulas withheld] Location in Rongo Sub-County within Migori County, intentionally and unlawfully caused his genital organ to penetrate into the genital organ of J.M a female aged 17 years who was in his knowledge, his daughter. 3.The Appellant was found guilty as charged, convicted and sentenced to 60 years imprisonment. He was aggrieved with both conviction and the sentence after which he instituted the present appeal. 4.The appeal is based on the following grounds:-i.That the trial court erred in law and fact by failing to comply with the provisions of Article 50(2)(g)(h) of the Kenyan Constitution, 2010.ii.That the trial court erred in law and facts as it failed to observe that the witness evidence was inconsistent and uncorroborated.iii.That the trial court erred in both law and fact by relying on a defective charge sheet.iv.That the trial court erred both in law and fact by meting a harsh and excessive sentence in the circumstance. 5.This being the first appellate court, this Court will re-evaluate and analyse the evidence adduced in the trial court for this court to come up with an independent conclusion. In doing so, I must bear in mind that, unlike the trial court, I did not have the opportunity of observing the demeanour of the witnesses as they testified. See Okeno vs. Republic [1972] E.A 32. 6.At the trial Court, the prosecution called 5 witnesses in support of their case. 7.PW 1 the complainant, testified on oath that she was 17 years born on 5th February, 2007 and was a student at [Particulas withheld] Secondary School in Rongo. She confirmed that the Appellant was her father whom she began living with in 2019.Prior to that, she was living with her maternal grandmother. She stated that on diverse dates between January 2023 and October 2024, her father subjected her to sexual intercourse against her will. It is in her evidence that the first incident occurred at the family home when she had been left at the home alone with her father because she was unwell and had not attended school. Her two siblings had gone to school while her mother her gone to work. 8.She testified that she was asleep in her bedroom when the father entered her room, took her by force and penetrated her vagina with his penis. She stated that he threatened to kill her if she disclosed the incident to anyone. She described the second incident which occurred when she went to visit the accused at his rented residence at [Particulas withheld] where he was working as a watchman manning a mine. She stated that the accused had sexual intercourse with her and promised to provide her with whatever she needed. She could get gifts from him before engaging in the sexual acts. She said she returned home but never disclosed the incident to the mother. 9.The incident came to light when a Children’s officer visited the family home to inquire about her pregnancy. She had given birth and disclosed that the father of her child was her biological father. The accused was arrested and taken to Kamagambo Police Station and the complainant was taken to Rongo Sub County Hospital for medical examination. She confirmed the accused person was in court and identified him as her father. 10.PW2, the mother of the complainant, testified that she was the wife of the accused, and the mother of the complainant. She confirmed that the complainant was born on 5th February, 2007 and that the family had begun living together in the home of the accused in 2019, prior to which they had resided at her mother's home. 11.It is in her evidence that she had no knowledge of the accused engaging in sexual intercourse with his daughter. She described Jane as a very obedient child who consistently returned home by 6:00 p.m. and had no known associations with boys or men. She confirmed that in 2023, Jane had been unwell and was left at home with her father on the occasion when the first incident allegedly occurred. Sometime in mid-2023, the family discovered that the complainant was pregnant. She noted that the accused was not willing to pursue or investigate the matter of who had impregnated his daughter, consistently dismissing the concern. 12.She further testified that on the 20th October 2024, the truth came to light during a conversation involving visitors at the home. The complainant, who had already given birth, and the sister, who was also pregnant, were present. The visitors, including members of a community child welfare organization, subsequently arrested the accused. She stated that she reported the matter to the village elder, who had already called the Children's Officer after learning that the complainant had given birth without the father being identified. The family then proceeded to the police station, where the complainant recorded a formal statement confessing that her father had defiled her. 13.She further stated that the complainant and her sister had confided in each other, and informed her that the accused had defiled and impregnated her. She confirmed that she was absent from the home daily from as early as 6:00 a.m. to as late as 7:00 p.m. 14.PW3 Dorcas Adongo a clinical officer at Rongo Sub CountyHospital testified and stated that the complainant had gone to the hospital in the company of her mother and police officers and she carried out medical examination on her. She found her clinically stable. The hymen was found to be broken, and all other anatomical parts were normal with no tenderness or bruising observed. Urinalysis and all other relevant tests returned normal results. The complainant informed the clinical officer that she had been defiled over a period of more than a year by her father. 15.She further stated that at the time of examination, the complainant had already given birth explaining the absence of the hymen. She produced the Treatment Notes as Exhibit 2, the P3 Form as Exhibit 3, and the PRC Form as Exhibit 4 before the court. 16.PW 4, George Omondi Manyala a resident and a member of Lwala Community Alliance an organization dealing with matters involving children testified that on 20th October 2024, he received a telephone call from George Odingo, the village elder, informing him that there was a pregnant child in his area. He proceeded to the home of Appellant accompanied by two others, where they found the accused together with his wife and three children. Both daughters were present one was pregnant and the other had already given birth. When the matter of paternity was raised, the second daughter, who is the complainant stated that the father of her child was the Appellant. The first daughter, stated that her child had been sired by her boyfriend. Thereafter, PW4 took the complainant to Kamagambo Police Station, where the complainant formally stated that her father, Elijah, was responsible. 17.He stated that it was his second visit to the home. On the first occasion, the Appellant had refused to allow the team to speak with the children. He denied any financial dealings with the Appellant and any allegation of personal enmity between himself and the Appellant’s associate, George. He also confirmed that the minor was not subjected to any form of physical coercion. 18.PW5, PC (W) Maryane Nyachera attached to Kamagambo Police Station testified on behalf of PC Olivia Aluoch who had investigated the case but had been transferred. She testified that three individuals arrived to report a case of incest. These included George Omondi Manyala (PW4), who had escorted the accused in the company of the minor, PW1. She stated that the minor disclosed that her father had lured her into sexual intercourse by promising to take care of her and her unborn child. She confirmed that the defilement had commenced in January 2023. The accused was formally arrested and arraigned before court. 19.She further testified that she escorted the accused, the complainant and the child to Kisumu Government Chemist for DNA analysis. The resulting Government Analyst Report, admitted as Exhibit 5b, confirmed that the accused/now appellant is the biological father of the child born to PW1, the complainant. 20.She also produced the Exhibit Memo Form dated 5th February 2025 as Exhibit 5a, Government Analyst Report as Exhibit 5(b) and the statement of the original investigating officer, PC Olivia Aluoch, as Exhibit 6. 21.She also clarified in the course of proceedings that the accused is not the biological father of the minor, but rather her stepfather. This distinction was confirmed during cross-examination. 22.From the above prosecution evidence, the trial court concluded that the prosecution established a prima facie case and proceeded to put the Appellant on his defence. 23.The accused gave sworn testimony and stated that he did not commit the offence. He testified that the victim was not his child and that the victim’s mother is not his wife but rather a member of his church. He challenged the DNA results relied upon by the prosecution, asserting that although the DNA samples were allegedly taken, he never gave any sample at the facility and no samples were taken from him. He stated that he did not believe the DNA results. He maintained that he was not guilty of the offence before the court. 24.He maintained that the three prosecution witnesses who testified against him were lying. He alleged that the victim’s mother, together with other church members, had been fighting him with the intention of removing him from the church. He however conceded that he had no witness to corroborate that allegation. He further acknowledged that the DNA results indicated that he was the biological father of the victim but maintained that he was not the father. Findings And Determination 25.In determining this appeal, this court shall satisfy itself that the ingredients of the offence of incest were proved as required in law; beyond reasonable doubt. I have carefully perused through the proceedings and the judgement of the trial court as well as the evidence on record before this court. The issues for determination in this appeal are:i.Whether the absence of legal representation guaranteed under Article 50(2)(h) of the Constitution prejudiced the appellant;ii.Whether the Prosecution proved its case beyond reasonable doubt considering the ingredients of incest; andiii.Whether or not the sentence of 60 years was excessive. 26.This Court proceeds to address the framed issues as follows- I. Whether the absence of legal representation guaranteed under Article 50(2)(h) of the Constitution prejudiced the Appellant’s trial. 27.The Appellant in his grounds of appeal averred that the trial court did not meet the requirements of Article 50(2)(g) and (h) of the Constitution. The Article provides that-“Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly”. 28.As stated, the Appellant was charged with the offence of incest with a 17-year-old child knowing that the child was his daughter. A perusal of the proceedings show that the Appellant was informed by the trial court of his right to legal representation of his choice. He was also informed that he was entitled to apply to the Legal Aid Board for assistance. 29.The Appellant chose to represent himself. He did not demonstrate that he requested the trial court to be provided with legal representation and that his request was declined and/or demonstrate that he was likely to suffer substantial injustice if the trial proceeded without legal representation. As this issue was not raised during trial when the trial court was expected to have pronounced itself on the same, it cannot be raised and considered on appeal. This Court also notes from the record that the Appellant understood the trial process and he was able to effectively cross- examine the witnesses. 30.For the reasons stated above, this court comes to the conclusion that the Appellant’s constitutional and fundamental right to legal representation under Article 50(2)(g) and (h) of the Constitution was not violated. II. Whether the Prosecution proved its case beyond reasonable doubt considering the ingredients of the offence of incest. 31.The appellant was charged with and convicted for the offence of incest contrary to section 20(1) of the Sexual Offences Act.Section 20 (1) of the Act which provides-“Any male person who commits an indecent act or an act which caused 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”.Section 22 provides the test of relationship. It provides-“ 22 (1)in cases of the offence 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 wedlock or not.” 32.In his submissions, the Appellant denied being the biological father of the complainant and denied having committed the offence. He contended that the mother of the complainant was not his wife. He stated that he started living with the complainant and the mother in 2019 after the death of his wife. he contended that the complainant could not be his daughter as she was born in 2007, 12years before he started living with the mother. He also disputed the birth certificate indicating he was the biological father of the complainant. He averred that it was a forged document. He stated that the birth certificate was registered on 05.02.2015, 3 years before the complainant and the mother started living with him. From evidence on record and which the Appellant did not deny, is that the complainant lived with the Appellant since 2019. He did not raise the issue of forgery of the birth certificate at the trial court. I am satisfied that the Appellant is related to the complainant. 33.A major ingredient of the offence of defilement/incest is that there must have been penetration. Penetration is defined in section 2 of the Sexual Offences Act as-“Penetration means the partial or complete insertion of the genital organ of a person in the genital organ of another person.” 34.The penetration or act of sexual intercourse therefore has to be established to sustain a charge of defilement. In Bassita Hussein – VS – Uganda, Supreme Court criminal appeal No. 35 of 1995, the court stated-“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 35.In her evidence, the complainant explained what happened and the same was corroborated by the Clinical Officer who conducted examination on the complainant that the hymen had been broken as she had given birth. The DNA test on the complainant’s child confirmed that the Appellant is the biological father. This confirmed that indeed the complainant was defiled by the Appellant.I have re-evaluated the evidence before the trial court and in my own analysis of the same, I am satisfied that the trial magistrate properly considered the evidence adduced and correctly arrived at the conclusion that the appellant being a father of the complainant defiled and impregnated her and therefore committed an offence of incest contrary to section 20 (1) of the Sexual Offences Act. To this end, the appeal on conviction fails. III. Whether or not the sentence was excessive 36.Section 20 (1) of the Sexual Offences Act has created two sentences. One, the general sentence which applies when the complainant is an adult; and a second one where the complainant is a minor. It provides –“20(1) where 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 the offence termed incest and is liable to imprisonment for a term not less than 10 years.Provided that if it is alleged on information or charge and proved that the female person is under the age of eighteen years, the accused shall be liable to imprisonment for life and it shall be immaterial that the act which caused penetration was obtained with the consent of the female person.” 37.The age of the complainant in sexual offences at the time of the offence is significant. The evidence adduced in the present case is that the complainant was 17 years. This was evidenced by the Birth Certificate produced in court. This confirms that the complainant was still below the age of majority. 38.The provision to section 20 (1) provides that accused person who has been convicted of an offence of incest where the victim is under 18 years; “Shall be liable to imprisonment for life”. The provision in my considered opinion does not give a mandatory sentence but rather gives a maximum sentence. This is so because the words “shall be liable” do not, in their ordinary sense require the imposition of the stated penalty but merely expresses stated penalty which may be imposed at the discretion of the court. 39.In the “Muruatetu Case”, the Supreme Court outlined the following guidelines as being applicable when the Court was giving consideration to sentencing;“ (a)age of the offender; (b)being a first offender; (c)whether the offender pleaded guilty; (d)character and record of the offender; (e)commission of the offence in response to gender-based violence; (f)remorsefulness of the offender; (g)the possibility of reform and social re-adaption of the offender; and (h)any other factor that the Court considers relevant.” 40.The objectives of sentencing should be considered in totality. In this regard, section 10 of the Sexual Offences Act gives room for the exercise of judicial discretion. 41.In the instant case, the Appellant in his submissions contends that the sentence is not reasonable as per the tenets of Article 24(1) and 50(2)(p) of the Constitution putting into consideration that the appellant was 60 years old at the time of sentencing. He argues that a sentence which goes beyond the life expectancy of a person in Kenya which is 64.4 years for males can be manifestly said to be excessive. He relied on the Court of appeal decision in Ali Abdalla Mwanza v Republic (2018) eKLR and Charo Karisa Pembe vs Republic Mombasa CRA No. 22 of 1988 where the court on account of the age of the accessed at the date of sentencing reduced the period of 18 years imprisonment for manslaughter to 4 years. 42.The Respondent on the other hand submitted that the life imprisonment sentence under section 20(1) of the Sexual Offences Act is discretional and the court may impose any a sentence between 10years to life imprisonment when the victim is below 18years. 43.The Respondent further submitted that the sentence of 60 years in this case was proper considering the circumstances of the case where the Appellant was expected to protect his child as a father. 44.In addition, it should also be pointed out that incest overlaps with defilement, where minors are involved. The perpetrator would essentially have committed two offences. He would have had sexual connection within forbidden relationships, and he would have defiled a minor. The penalty, where a minor is involved, would be stiffer, to punish the offender of the incest, and of the defilement. 45.The trial court while sentencing the appellant considered the appellant’s mitigation where he prayed for forgiveness. I believe that mitigation ought to count in sentencing. Judicial officers have the discretion to sentence an accused person based on the circumstances of a case. Therefore, in considering the objectives of sentencing in their totality and the circumstances surrounding the incident, the age of the appellant and the aggravating factors in this case, I am inclined to interfere with the 60 years imprisonment and substitute it with 40 years’ imprisonment. 46.The appeal partially succeeds on sentence whereas the order on conviction is affirmed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE, 2026………………………W.N. MOLONKOJUDGEJudgment delivered virtually in the presence of:Elijah Etiang – AppellantNo appearance for the Respondent.Susan Nzioka – Court Assistant