https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8439

EMK v Republic (Criminal Appeal E038 of 2025) [2026] KEHC 8439 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8439 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Appeal E038 of 2025 PK Rotich, J June 11, 2026 Between EMK Appellant and Republic Respondent (Being an appeal from the Judgement and Sentence of the Chief Magistrate Court at Shanzu (Omido Joe Mkutu SPM) delivered on 13th March 2024 in Criminal Case No. SO E053 of 2022) Judgment 1.The appellant EMK was charged with the offence of incest contrary to section 20(1) of the Sexual Offences Act No.3 0f 2006. The particulars of offence are that on 21st day of April,2022 at [Particulars Withheld] in [Particulars Withheld] Township within Kilifi County of the Coast region, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of BM, a female juvenile aged 10 years with his hand and penis. 2.The trial magistrate considered the evidence of 5 prosecution witnesses and 4 defence witnesses and found the appellant guilty of incent contrary to section 20(1) of the Sexual Offences Act No.3 of 2006.Upon conviction, the appellant was sentenced to serve thirty (30) years imprisonment. 3.Being aggrieved by the conviction and sentence by the trial court, the appellant preferred an appeal against the entire Judgement of the Court based on the following grounds flied concurrently with his submissions:1.That the learned trial magistrate erred in law and fact by convicting and sentencing the appellant without considering medical evidence did not prove the cases beyond reasonable doubt2.That the learned trial magistrate erred in law and fact by convicting and sentencing him without considering the prosecution’s case was governed by massive contradictions and discrepancies.3.That the learned magistrate erred in law and fact by not finding that his case was poorly investigated leading to miscarriage of justice4.That the learned magistrate erred in law and fact by failing to comply with section 329 of the CPC as mitigation is part of the trial process. 4.PW1, the complainant’s mother, recalled that on 21.4.2022 at about 6.00pm she returned from work and proceeded to prepare dinner. The appellant, who is the victim’s father also returned home seemingly in a bad mood and scolded the witness or others.PW1 then took water to the toilet that they also use as a bathroom for the appellant to take a bath. When the appellant had completed taking a bath, PW1 followed suit.While she was having a bath PW12 stated she had had a knock on the bathroom door and heard her first born son BMM shouting “mama toka daddy” 5.PW1 hurriedly wrapped herself in a leso and rushed out and run into their house, where she found the appellant on his cellphone. She then sought to know from her son why he had called he and he discreetly told her he was doing “bad manners” to the complainant. 6.At that instance, PW1 stated, she went to check the complainant who she found on bed with her tights were on. On examining her genital area, PW1 stated, she found that the same was unusually wet. The complainant also started crying, PW1 stated and complained she was having sore and was in pain. The Appellant requested that they settle the matter at home, PW1, stated but she reported the case at the Police Station and took the victim to hospital for examination and treatment.PW1 also stated that she took the Complainant to hospital before she took a bath 7.BWW (PW2) the complainant who testified on oath after being subjected to voire daire examination stated she aged 10 years and a class four (4) pupil at [Particulars Withheld] Primary School and resident of [Particulars Withheld]. In her testimony, PW2 stated that on 21.4.2022 after she had dinner her father and mother took bath in succession. The complainant also stated that when her mother went to have a bath, her father told her to lie down and touched her private parts and she became wet. 8.PW1, further, stated she was woken up by her mother and she heard a lot of pain in her private parts, which had a watery substance. On cross examination PW2 stated that she was asleep and does not know what happened. 9.BMM (PW1) who testified on oath after being subjected to voire daire examination stated that she was `12 years old and a grade five (5) pupil at [Particulars Withheld] Primary School and a resident of [Particulars Withheld]. He, further stated that on 21st April, 2022 he was at home with his parents and siblings. His father the appellant, PW1 stated, proceeded to take a bath as she conversed with his mother while his siblings slept the witness also stated when his father returned from having a bath, his mother left also to bath and the accused went to check if the children were asleep. Though still awake, BMM stated he closed his eyes and pretended he was asleep.PW3, further, stated he saw the accused who proceeded to where the victim was sleeping and uncovered her by pulling away her leso with which she had covered herself and took off her tights. He then pulled his “dudu” and put it into the victim’s private parts In describing what “dudu” was the witness pointed at his privates 10.BMM also stated that he ran to tell his mother that he had seen his father doing to the complainant. 11.PW1 rushed out of the bathroom and PW3 told her that the Appellant was doing “bad manners” to the complainant. By the time the accused, PW stated had gone to bed and was looking at his phone. On being cross-examination by the accused, PW3 stated that though lights had been switched off, the accused person used the light from his cell phone to check if the witness and her siblings were asleep. 12.John Musau (PW4), a registered Clinical Officer stationed at Mutwapa Health Centre stated that he examined and treated the survivor on 22/4/2022 and completed a post rape care (PRC) form for her. Upon examination he found that the survivor had a hyper pigmented labia majora and minora and had redness on the vaginal walls. Her hymen was also missing. A general swap, PW4 stated, showed that were epithelial cells. The PRC form was used to fil the survivor’s P3 form and the complainant’s PRC and P3 form were marked exbibit 1 and 2 respectively On cross-examination, PW4 stated that there was redness on the complainant’s private parts but no seminal fluid or sperms were noted. 13.The accused in his evidence stated that BMM framed him because he was quarrelling and fighting with his wife and BMM was very close to his mother. DW3, one of the accused person’s witnesses, however, stated the appellant had a very good relationship with his wife and children particularly his son BMM. 14.The appellant in his submissions through Counsel pointed out that the victim’s mother, PW1, during cross-examination testified that she saw sperms in the complainant’s private parts and that she did not bath the child after the incident. There is, however, no medical proof to support this assertion. Though the child was taken to the hospital the following day, the appellant further pointed out, Mr. John Musau (PW) who is a Clinical Officer, testified that a general swap was done on the complainant’s vagina and there was no seminal fluid or sperm. 15.The appellant also pointed out that the complainant testified that father touched her. She did not state, the appellant pointed out that the appellant penetrated into her vagina. Her brother PW3 on the other hand, the appellant pointed out testified that her father went to where her sister was sleeping, opened her leso removed the tights she wore and proceeded to penetrate into her private parts with his genitals 16.There were massive inconsistencies and contradictions, the appellant submitted depict insincerity and cast doubt on the credibility of the witnesses hearing. 17.Section 20 of the Sexual Offence Act No.3 of 2006 provides:“Any male person who commits an indecent act or act which causes penetration which causes penetration with a female person who to his knowledge is his daughter, granddaughter, sister, niece, aunt or grandmother is guilt of an offence termed incest and is liable to imprisonment not less than 10 yearsProvided that, if it is alleged in the information or charge and proved that the female person is under the age of 18 years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which caused the penetration or indecent act was obtained with the consent of the female person.” 18.The issues for determination by the Court in this matter:1.Whether the Appellant is the complainant’s father2.What is the age of the Complainant?3.Whether it has been proved beyond reasonable doubt that the Appellant caused his penis to penetrate the complainant’s vagina. 19.It is not in dispute, that the appellant is the complainant father and that the complainant was aged 10 years. In his defence, the appellant acknowledged he is the father of the Complainant. 20.In her evidence, the complainant, PW1 stated the appellant touched her in her private parts when she was asleep and she became wet. She also stated that when she was woken up by her mother, she felt pain in felt pain and some watery substance in her private parts. On cross-examination she stated she did not what happened 21.Her brother, PW3, however stated that his father went to where her Sister Brenda slept, opened the leso that she covered herself and removed the tights she wore.PW 3 also stated that the appellant removed his “dudu” (meaning penis) and put into her sister’s private parts. This contradicts the evidence who stated that the appellant touched her. The complainant did not state that the appellant penetrated into her private parts using his penis. 22.PW1, the complainant’s mother, testified while she taking a bath in their toilet cum bathroom outside their house after the appellant had completed taking his, she had had a knock on the bathroom door their first-born son BMM(PW2) who was also shouting “mama toka daddy” 23.PW1 stated that she hurriedly wrapped herself in a leso and rushed out and run into their house, but found the appellant on his cellphone. She then sought to know from her son why he had called he and he discreetly told her he was doing “bad manners” to the complainant. 24.Thereafter, PW1 stated, she checked on the complainant who she was on bed with her tights were on. On examining her genital area, PW1 stated, she found that the same was unusually wet. The complainant also started crying PW1 stated and complained of sores and pain.PW1, further, stated that she took the Complainant to hospital before she took a bath. John Musau (PW4), a clinical officer based at Mutwapa Heath Centre who examined the complainant, however, stated though there was redness on the complainant’s private parts and her hymen was missing no seminal fluid or sperms were spotted on them. 25.The court concurs with the appellant that the prosecution evidence was herein if full of contradictions and inconsistencies which cast doubt on the credibility and veracity of the evidence tendered by the prosecution. It is not clear from the evidence of the complainant herself whether the appellant penetrated her yet he was found guilty of incest and sentenced to serve 30 years imprisonment. The clouds of doubt hanging over the prosecution evidence herein benefit appellant. It is this Court’s finding the trial Court erred finding prosecution proved beyond its case against the respondent beyond reasonable doubt in light of the discrepancies in their shown above. This appeal, therefore succeeds. 26.In arriving at above position the Court relies on the case of Remmy Wanyonyi Wanjoki Vs. Republic HCC Appeal No. 53 of 2019 Bungoma (2020) eKLR cited by the appellant’s Counsel, In the case the High Court (Hon. Riech, J) rendered itself thus:From the evidence on the record of the Clinical Officer the complainant upon examination did not have bruises in her genetalia. No discharge. The urine had epithelial cells and hymen was missing. Her conclusion was that there was defilement. If there were no bruises, hymen is not shown to be freshly broken but was missing, there was no discharge. 27.What was the basis of the conclusion of defilement? It is probably the history of the patient. It is instructive to note the examination was done the same day of the incident as the complainant was taken to hospital the same day. Even the discharge PW3 testified that she saw when examining the complainant genitalia what showed like sperm substance was not seen by the Doctor” 28.The upshot of my findings above is this appeal is allowed Accordingly, the conviction and sentence of the appellant are set aside and the appellant is set at liberty forthwith unless otherwise lawfully held.Right of Appeal with 14 days DATED SIGNED AND DELIVERED VIRTUALLY VIA MS TEAMS THIS 11TH JUNE,2026P.K.ROTICHJUDGEIn the presence of:The appellant in personMs.Wanjiku for the AppellantMr.Sirima for DPP