https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7287

FMM v Republic (Criminal Appeal E002 of 2025) [2026] KEHC 7287 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7287 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Appeal E002 of 2025 S Mbungi, J May 26, 2026 Between FMM Appellant and Republic Respondent (Being an appeal from the decision and judgment by Hon. Amboko delivered on 3rd December 2024) Judgment 1.The Appellant herein had been charged with the offence of incest contrary to section 20 (1) of the Sexual Offences Act No. 6 of 2006. The particulars are that FMM Alias W, on the 12th day of June 2021 at [particulars withheld] village, [particulars withheld] sub-location, Nambacha location in Navakholo sub- county within Kakamega county, intentionally and unlawfully caused his genital organ, namely penis, to penetrate the genital organ, namely vagina, of BNM, a girl aged 5 years, who was his granddaughter. 2.The Appellant pleaded not guilty, and the matter proceeded for a hearing. The prosecutor called 4 witnesses in support of its case. The defence called two witnesses and, at the close of its case, found the accused guilty and sentenced him to life imprisonment for the offence of incest. 3.The Appellant filed supplementary grounds of appeal on the following grounds;a.That the trial court erred in law and in fact in not informing the appellant his rights to legal representation and not according the appellant his rights to legal representation and not according the appellant an advocate on the state's expense, occasioning a substantial injustice.b.That the trial court in law and in not considering the circumstances under which the offence was alleged to have been committed, entails dishonesty to evenly impeach the credibility and reliability of the witness pursuant to section 33 of the SOA No. 3 of 2006.c.that the trial court erred in law and in fact in not making a finding that the present case presents exceptional circumstances to compel a court to order an unconstitutional and absolute discharge as contemplated under section 35 of the penal code or suspended sentence as contemplated under paragraph 3.2 to 3.3.5 of the sentencing policy guidelines (SPGs) Revised 1 2023. 4.They prayed that the conviction be quashed and the sentence be set aside, and the appellant be freed. Written submission 5.On the first grounds, on the right to legal representation, they quoted the case of Thomas Alugha Ndegwa vs the Republic C. A No. 2 of 2004, which held that the right to legal representation was at the state's expense and a fundamental ingredient to the right to a fair trial. 6.They quoted the case of Leonard Maina Mwangi & 2 others (2017) eKLR and Joseph Ndungu Kagiri vs. Republic (2016(Eklr) eKLR 7.The appellant claimed that he is a poor old man with weak health and in need of legal representation, and denying him the legal right denied him the right to substantial justice. 8.On the second issue of the trial court's failure to consider the circumstances under which the offence was committed. The appellant questioned the victim's testimony that she remained in the house with her grandfather while the other children went out to play, and further that his witness, who was his wife, was in the compound, never saw the complainant. He further claimed that the doctor verified that he had erectile dysfunction and that he was seriously sick. 9.He quoted the case of Absalom Amboko Okila vs. Republic (2020) Eklr and OKK vs. Republic (2020) Eklr. He claims that the court should have made its own finding if the appellant indeed was unable to perform sexually since he had erectile dysfunction, and claimed that PW1's evidence was coached and PW3 was biased towards him. 10.On the third issue that the case presented exceptional circumstances to compel an order of unconditional and absolute discharge, the appellant states that he is an old man aged 72 years and of weak health, suffering from high blood pressure, Arthritis, Erectile dysfunction, lower back aches and unable to survive the harsh jail conditions and that the court should consider the circumstances. They relied on the case of criminal appeal No. 110 of 2022, Makumbui Subui Wanyeso vs. Republic, and prays that the court be pleased to consider an unconditional absolute discharge of the appellant, a non- custodial or suspended sentence pursuant to section 35 of the Penal code paragraph 3.2 to 3.3.5 sentence policy guidelines revised 2023. Evidence in brief. 11.PW1 was the complainant who gave unsworn evidence. She testified that she had gone to MV and G’s house when MV’s father asked her to sit in the chair while G and MV were outside. She testified that MV’s father did bad manners to her by inserting the thing he used to urinate inside her and told her that if she was asked by her mother to claim that she was pocked with a stick. 12.She stated that she went and informed her mother what happened, and she was taken to the hospital. 13.During cross-examination, she stated that she did not know the date the incident occurred and was able to identify him since it was in the morning and that she did not see S, MV or JM and denied the allegation that she had been defiled by a different person. 14.PW2 was SW the complainant’s mother who testified that she learnt of the incident on 13/06/2021 the next day when she saw blood on her daughter’s panty and dress and when asked, she informed her mother that MV’s father had done a bad thing to her. she took her to the hospital and later given the P3 form at Navakholo police station. 15.She claimed that the accused person was later arrested. She identified the accused as her father-in-law’s brother and denied having any indifference toward him. 16.At cross-examination, she claimed that the incident occurred between 10.00 -11.00 a.m. on 12/06/2021 when his wife was away. She stated that their house was near theirs and that he had sent his wife, who confirmed that the minor had been defied. 17.Pw4 was Raphael Otoiyo, a clinical officer who produced the report on behalf of Dr. Tobias, who had gone for further studies. He produced the P3 and the PRC form filed on 16/06/2021, which stated that the minor aged 5 years had been defiled. The examination indicated that there was a bruise on the labia minora and that there was blood and injuries on the cervix. The doctor concluded that the minor had been defiled. 18.She produced the treatment notes, a P exhibit 1, P3 form as exhibit 2 and PRC form exhibit 3. 19.When cross-examined, he stated that the examination was done by his colleague, and he could not tell why the minor took a day before seeking medical attention. 20.PW4 was the investigating officer Esther Wefafa who testified that on 15/06/2021, she received a report that the minor had been defiled by baba Melvin the complainant who defiled her in his house and asked her not to tell anyone but she informed her mother who blood stained and produced as exhibit 5a. as well as the brown petticoat that was blood stained produced as exhibit 5 b 21.She stated that they filed the P3 form and escorted them to Navakholo sub-county hospital, where the P3, PRC form were filled together with the age assessment, which indicated that the victim was 5 years old at the time. She testified that she searched for the accused on 20/6/2021 and did not find him until he came to the station on 21/6/2021 in the company of his wife and son. 22.During cross-examination, she stated that the incident occurred on 12/6/2021 and that he led the minor to his house. 23.The trial court found that the prosecution had proved their case beyond a reasonable doubt and placed the accused on his defence. 24.DW 1 was FMM, who testified that on 11/6/2021, he came from his house in [particulars withheld] and went to the [particulars withheld] dispensary, and was given some medication and was ferried to [particulars withheld] on a motorcycle. He slept through the night and only left to go to [particulars withheld] to buy the medication. On 13/6/2021, he stayed at home until 6.00 p.m. when his wife informed him that there were rumours he had raped a child, and on 21/06/2021, he went to Navakholo police station, where he was later arrested. 25.At cross-examination, he confirmed that the victim was his granddaughter and denied seeing her in any of his home claiming that the child had lied to the court. He denied the allegation that the report he had presented to the court about his sexual inability being false and denied raping the minor, who was his brother’s granddaughter. 26.DW2 was Esther W, who stated that she was at home on Saturday and on Sunday, she never left her homestead and only heard the rumors of the defilement on Sunday. She claimed that her husband’s body had not functioned since 2018, when he had a spinal cord injury at work. 27.During cross-examination, she testified that she was the accused's first wife and that on 22/06/2021, she was at home and that the accused was at home and was unwell, as he was suffering from ulcers, arthritis and typhoid. She denied seeing the complainant or the fact that she was with MV, who is 16 years old, and denied that she played with the complainant. 28.The defence closed its case. The court found that the prosecution had proved its case against the accused beyond a reasonable doubt. 29.The trial court, upon considering the accused's mitigation and the fact that he was a first offender, sentenced the accused to life imprisonment for the offence of incest under section 20 (1) of the sexual Offences Act. 30.The appellant, being dissatisfied with the decision and judgment of the trial court, has filed the appeal. Analysis and determination 31.Being the first appellate court, the court should re-evaluate all the evidence on record and draw its own conclusions, whilst bearing in mind the fact that it did not have the benefit of observing the witnesses as they testified. 32.The Court of Appeal’s decision in the case of Okeno vs. Republic (1972) EA 32 has consistently been cited on this issue. In its pertinent part, the decision is to the effect that: -“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrates’ findings can 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.” 33.The appellant submitted that while he was charged under section 20(1) of the Sexual Offences Act (SOA), the evidence did fail to prove that he committed the offence and that the prosecution's case was marred with contradictions and inconsistencies, and further that he was not accorded a fair trial 34.According to the appellant, none of the prosecution witnesses was able to prove that he actually committed the alleged offence, and they based their allegation only on the testimony of PW1. Issues for Determination 35.Based on the grounds of appeal and submissions, the issues for determination are:a.Whether the trial court convicted the Appellant without evidence meeting the standard of proof beyond a reasonable doubt.b.Whether the trial court erred by failure to provide the appellant with legal representationc.Whether the trial court failed to consider the defence and aggravating factors in sentencing. 36.Section 20(1) of the Sexual Offences Act No. 3 of 2006 defines incest as knowingly having sexual intercourse with a person within the prohibited degrees of relationship, such as a parent and child. The penalty for incest with a minor is life imprisonment, subject to judicial discretion for a lesser term. 37.The first issue that this court will consider is whether the trial court established that the offence was proved beyond a reasonable doubt. 38.The appellant was charged under Section 20(1) of the Sexual Offences Act. The essential ingredients requiring proof were:i.Proof of penetration;ii.Proof of the age of the complainant;iii.Proof of the prohibited relationship;iv.Identification of the perpetrator. 39.On penetration, PW1 gave unsworn evidence describing the act in child-appropriate language. She claimed that the appellant placed his thing for urinating inside her private part and defiled her. Her testimony was corroborated by medical evidence produced through PW3, which confirmed bruising on the labia minora and injuries to the cervix consistent with penetration. He further produced the P3 form (Exhibit 2) and PRC form (Exhibit 3), indicating bruises on the labia minora, injuries to the cervix, and blood, concluding defilement. Blood-stained clothing was produced as Exhibits 5a and 5b. PW2 observed blood on the complainant's clothing the next day, leading to the report. This evidence establishes penetration beyond a reasonable doubt. 40.On age, the prosecution produced the birth notification and age assessment, which indicated that the complainant was born on 02/03/2016, which meant that she was 5 years old at the time of the incident. This was uncontroverted by the defence. 41.On the relationship between the victim and the appellant, the appellant himself admitted in cross-examination that the complainant was his granddaughter, who was his brother’s granddaughter. The prohibited degree of relationship was therefore established. 42.On identification, the offence occurred in broad daylight. The complainant knew the appellant as a close relative. This was a case of recognition, which is more reliable than identification of a stranger, as stated in Anjononi & Others v Republic. There was no evidence of mistaken identity. 43.The appellant challenged the credibility of PW1 and alleged coaching. However, Section 124 of the Evidence Act permits a conviction on the evidence of a child victim in sexual offences if the court believes the child and records reasons. The trial magistrate expressly found PW1 truthful and consistent. Given the above analysis, I find no basis for interfering with the decision of the trial court. 44.The appellant claimed that he had suffered a back problem that caused him to have erectile dysfunction. I have had a chance to examine the letter that was dated 27th February 2024, although he claimed the incident occurred in 2019. The production of the letter comes off as an afterthought after the incident. Even assuming that the appellant did have some dysfunction, no expert evidence or doctor was adduced to conclusively establish the impossibility of the appellant performing any sexual activity. The letter that was dated after the fact could not displace the consistent prosecution evidence. 45.Upon independent re-evaluation, I am satisfied that the prosecution proved the charge of incest with a minor beyond a reasonable doubt. 46.The second ground raised by the appellant was failure to be provided with a legal representation at State expense, thereby occasioning substantial injustice. 47.Article 50(2)(g) and (h) of the Constitution guarantees an accused person the right to choose and be represented by an advocate and, where substantial injustice would otherwise result, to have an advocate assigned at State expense. It states that Article 50(2) 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 48.The Legal Aid Act, 2016, at section 43, sets out the duties of the court when interacting with an unrepresented person, and states:a."A The court before which an unrepresented accused person is presented shall: Promptly inform the accused of his or her right to legal representation;b.substantial injustice is likely to result, promptly inform the accused of the right to an advocate assigned to him or her; andc.Inform the service to provide legal aid to the accused person." 49.A cursory look at the proceedings herein clearly shows that the Appellant was not informed of his rights under Article 50(2) (g) of the Constitution. He did not fill in his submissions to further explain his argument. 50.In Pett vs Greyhound Racing Association (1968) 2 All ER 545, on the right to representation, Lord Denning had this to say' It is not every man who can represent himself on his own. He cannot bring out the point in his favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man, ‘You can ask any questions you like,’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him, and who better than a lawyer who has trained for the task?' 51.The Supreme Court In Karisa Chengo & 2 Others vs. R, Cr. Nos. 44, 45 & 76 of 2014, the court also stated: -“It is obvious that the right to legal representation is essential to the realization of a fair trial, more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result, and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death, and such a person is unable to afford legal representation. Under which the trial is compromised in one way or another, only then would the state's obligation to provide legal representation arise.” (Emphasis added) 52.In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant’s case as the record shows that the appellant participated fully in the proceedings, cross-examined witnesses, tendered documentary evidence regarding his alleged medical incapacity, and called a defence witness. There is no indication that he requested legal aid or that the proceedings were of such complexity as to render him incapable of mounting a defence. While the offence carried a severe penalty, severity alone does not automatically establish substantial injustice. 53.It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer any injustice due to a lack of legal representation. 54.I find no material on record demonstrating that the absence of State-funded counsel occasioned prejudice or rendered the trial unfair. 55.The appellant finally, on the sentencing, urges this Court to consider exceptional circumstances and grant an absolute discharge under Section 35 of the Penal Code or impose a non-custodial sentence. However, the gravity of the offence, the tender age of the victim, and the breach of trust inherent in incest militate strongly against leniency. 56.Section 20(1) of the Sexual Offences Act prescribes life imprisonment where the victim is under eighteen years. The complainant was aged 5 years. The sentence imposed was therefore lawful. 57.Sentencing must reflect the objectives of retribution, deterrence, denunciation, and protection of vulnerable victims. The Court of Appeal in Jared Koita Injiri v Republic affirmed the seriousness of sexual offences against minors and upheld stringent sentences in similar circumstances. 58.The appellant’s age and health status were considered in mitigation before the trial court. However, these factors cannot outweigh the profound violation visited upon a 5-year-old child. No exceptional circumstances have been demonstrated to warrant interference. He has not provided any medical evidence of his condition to warrant the court to interfere with the sentence by the trial court. 59.In the result, I find that:a)The appellant’s right to a fair trial was not violated;b)The conviction was founded on credible, cogent and corroborated evidence meeting the threshold of proof beyond a reasonable doubt;c)The sentence of life imprisonment was lawful and appropriate. 60.The appeal against conviction and sentence is hereby dismissed in its entirety. 61.It is so ordered. 62.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 26th DAY OF MAY, 2026.S.N.MBUNGIJUDGEIn the presence ofCA: Velma/ZildaMs Chala for ODPP.