https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1190

FSW v Republic (Criminal Appeal 3 of 2020) [2026] KECA 1190 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1190 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 3 of 2020 PM Gachoka, JM Ngugi & MB Kairaria, JJA June 26, 2026 Between FSW Appellant and Republic Respondent (An appeal arising from the judgment of the High Court of Kenya at Nakuru (J. Mativo, J.) and delivered by (T. Matheka, J.) on 13th December 2019 in HCCRA No. 122 of 2015) Judgment 1.While the Supreme Court has finally settled the question on mandatory minimum sentences under the Sexual Offences Act in its recent decisions in Republic vs. Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) and Republic vs. Manyeso [2025] KESC 16 (KLR), other interpretive questions in the Act remain unresolved as will become clearer later in this judgment. 2.The appellant, FSW, was charged with the offence of committing incest by a male person contrary to section 20 (1) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 1st January 2014 and 18th March 2015, at Roda Estate, Nakuru District, within Nakuru County, the appellant intentionally and unlawfully committed an act that caused penetration, by inserting his penis into the vagina of M.A., a girl aged 14 years, who to his knowledge was his daughter. 3.In the alternative, the appellant was charged with the offence committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on the same dates and in the same place, the appellant intentionally and unlawfully committed an indecent act with M.A., a girl aged 14 years, by touching her vagina with his penis. 4.The appellant was arraigned before the trial court on 23rd March 2015 in the Nakuru Chief Magistrate’s Court in Criminal Case No. 75 of 2015 (P&C No. 128/2015) to answer to the charges preferred against him. He entered a plea of ‘not guilty’ to all counts. After a full trial, the appellant was convicted of the offence of incest and sentenced to life imprisonment. 5.Aggrieved by those findings, the appellant appealed in the Nakuru High Court, Criminal Appeal No. 122 of 2015. Mativo, J. (as he then was), in his judgment delivered on 13th December 2019, dismissed his appeal on conviction and sentence. 6.Dissatisfied with the dismissal, the appellant is now before us. He filed his notice of appeal dated 30th December 2019. He also filed his memorandum and grounds of appeal, dated 30th December 2019, raising 7 grounds disputing the findings of the High Court. In summary, the appellant complained that the prosecution failed to prove the ingredients to the offence of incest to the required standard of proof, rendering the conviction unsafe. He alleged that the first appellate court failed to appreciate that the charge sheet was defective. Further, his rights enshrined in Article 50 of the Constitution were violated. He contended that he raised a strong defence that was not rebutted by the prosecution. Lastly, the appellant stated that the learned judge erred in failing to note that mandatory sentences were declared unconstitutional by the Supreme Court. For those reasons, the appellant prayed that his appeal be allowed, his conviction be quashed and his sentence be set aside so that he is set at liberty. 7.The appeal was canvassed by way of written submissions on 17th March 2026. The appellant represented himself while Senior Assistant Director of Prosecution Counsel, Mr. Omutelema, acted for the respondent. 8.In his undated written submissions, the appellant submitted that the first appellate court ought to have faulted the findings of the trial court since the medical evidence was wholly insufficient to prove the ingredient of penetration. This, he argued, violated his right to a fair trial set out in Article 50 (2) (a) of the Constitution. 9.He submitted that the evidence of the complainant did not fall within the parameters of section 124 of the Evidence Act, as the complainant was not truthful, hence unreliable. Further, he argued that since the prosecution did not produce the complainant’s birth certificate or baptism card, her age was not proved to the required standard of proof. For those reasons, he prayed that his appeal be allowed. 10.The respondent opposed the appeal. Mr. Omutelema filed written submissions and a list of authorities, both dated 10th March 2026. He submitted that the prosecution discharged its burden of proof, being beyond reasonable doubt, to establish that the appellant committed the offence of incest. Secondly, he argued that the appellant’s defence was considered and properly rejected. Thirdly, he emphasized that the charge sheet was not defective. In any event, that ground was not raised before the first appellate court. Lastly, he submitted that the sentence was proportionate and legal. For those reasons, Mr. Omutelema prayed that the appeal be dismissed. 11.As a second appellate court, our duty has been set out in several decisions of this Court and the principles are well settled. In Kilwake vs. Republic [2019] KECA 5 (KLR) this Court held:“In a second appeal like this, by dint of section 361(1)(a) of the Criminal Procedure Code, this Court concerns itself only with matters of law, the issues of fact having been settled in the two courts below. The Court explained its approach in a second appeal as follows, in Dzombo Mataza v Republic [2014] eKLR“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court...By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 12.The appellant was convicted after the trial court found that the ingredients of the offence of incest had been established to the required standard. These findings were upheld by the High Court. The memorandum of appeal by the appellant has primarily raised issues of fact. In that regard, we are called to establish whether the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that, looking at the evidence, they were plainly wrong. 13.The ingredients to the offence of incest are well settled. In order for the prosecution to secure a conviction, the following ingredients must be established: the relationship between the accused and the victim falls within the prohibited range of kinship; the age of the complainant; penetration or an indecent act; and the identity of the culprit. 14.On whether the appellant and the complainant were within the prohibited range of kinship, both courts concurred that the appellant was the complainant’s father. The complainant, PW1, in her evidence stated that the appellant was her father, which was also confirmed by the mother, PW3. This was not denied by the appellant, who further acknowledged that the complainant’s mother was one of his two wives and that the complainant was his child. Indeed, this ingredient of the offence is not denied by the appellant, and his only contestation is that he did not commit the offence. 15.On the complainant’s age, it was confirmed by the two courts below that the complainant’s mother testified that her child was born on 25th December 2000. This was corroborated by the P3 form, PRC form and age assessment report. PW3, Dr. Emily Cheruiyot, testified that she conducted the age assessment and formed the opinion that the complainant was aged between 14-18 years. Contrary to the appellant’s allegations, the failure by the prosecution to adduce a birth certificate or baptism card was not fatal to the case as age can be proved by other means. Therefore, just like the two courts below, we are satisfied that the ingredient of age was proved to the required standard of proof, being beyond reasonable doubt. 16.On the aspect of penetration or an indecent act and the identity of the culprit, both courts found that the complainant narrated several instances she was defiled by the appellant. PW1 explained how the appellant sexually assaulted her between January 2014 and March 2015. He threatened to kill her if she told anyone. She only disclosed that she had been sexually assaulted on several occasions when the headteacher questioned why she was always sickly. PW1 was consistent and firm during her testimony. When she was cross examined by the appellant, she was recorded as saying: " You told me you will kill me if I tell anyone…you impregnated me and you gave me medicine and I aborted”… Her evidence was corroborated by the doctor, PW6, who produced the medical report on behalf of her colleague Dr. Dida. The doctor, on examination, confirmed that PW1 had an old broken hymen with a foul-smelling discharge. Both courts were satisfied that both ingredients were proved beyond reasonable doubt as the complainant was truthful, qualifying her evidence under section 124 of the Evidence Act. 17.The appellant further raised two grounds of appeal, stating, first, that his charge sheet was defective and secondly, that rights under Article 50 of the Constitution were violated. Not only were these grounds not canvassed before the High Court, but also, the appellant failed to elaborate on the reasons supporting those grounds. For those reasons, the appeal on those grounds fails. 18.Lastly, on whether the appellant’s defence was considered, we confirm from the record that both courts extensively analyzed the appellant’s defence and rightly rejected it as it did not cast doubt on the evidence of the prosecution. The trial court considered the appellant’s defence that he had been framed by his wife, who allegedly colluded with other witnesses after his first wife returned home. This defence was considered, and, like the two courts below, we are satisfied that it did not dislodge or cast doubt on the evidence by the prosecution. Ultimately, we come to the inescapable finding that the conviction was safe. The appeal against it is therefore dismissed. 19.On sentence, the appellant was condemned to serve life imprisonment; a finding upheld by the High Court. During his mitigation, the trial court found that the appellant not only defiled his own daughter but also secured an abortion for her. The court noted that instead of protecting his child, he became a danger to her; a beastly act that ought not to be committed by anyone in the human race. 20.Applying a deterrent sentence, the trial court sentenced the appellant to imprisonment for life, considering that the victim was less than eighteen (18) years old. The first appellate court found that the sentence of life imprisonment is provided in the proviso to section 20 (1) of the Sexual Offences Act which provides as follows:“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.” 21.From the evidence established at the trial court, the victim was 14 years old, falling below the eighteen-year age cap. This Court, differently constituted, in M K vs. Republic [2015] KECA 468 (KLR), has had the advantage of interpreting the effect of the sentence provided, in the following terms, and we see no reason to depart from that finding:“18.The first observation to note is that the phrase “not less than” has not been used in the proviso to Section 20 (1) of the Sexual Offences Act. The inference is that the proviso does not create a minimum sentence. The phraseology and wording in the proviso is that the accused shall be liable to imprisonment for life.19.What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya - v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment. The Court cited with approval the dicta in James -v- Young 27 Ch. D. at p.655 where North J. said:“But when the words are not ‘shall be forfeited’ but ‘shall be liable to be forfeited’ it seems to me that what was intended was not that there should be an absolute forfeiture, but a liability to forfeiture, which might or might not be enforced”.We consider such to be the correct approach to the construction of the words “shall be liable on conviction to suffer death: especially when contrasted with the words of s.184 which are “shall be sentenced to death”. 20.On our part, we contrast the wordings in Section 8 (2) of the Sexual Offences Act with the proviso in Section 20 (1) of the said Act. The contrast will shed light as to whether the sentence in the proviso to Section 20 (1) is minimum and mandatory or otherwise. Section 8 (2) provides that a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. The proviso in Section 20 (1) provides that the accused shall be liable to imprisonment for life. 21.Guided by the decision in Opoya -v- Uganda (1967) EA 752 and the persuasive dicta of North J. in James -v- Young 27 Ch. D. at p.655; we are satisfied that the sentence stipulated in the proviso to Section 20 (1) of the Sexual Offences Act is not a minimum mandatory sentence of life imprisonment. The proviso simply states that the trial court has discretion to mete out a maximum term of life imprisonment. Read in conjunction with the general provision in Section 20 (1) we hereby state that the correct interpretation of the proviso in Section 20 (1) is that a person convicted of incest when the female victim is under the age of eighteen years is liable to a term of imprisonment between 10 years and life imprisonment.” 22.In sentencing the appellant to life imprisonment, the trial court said as follows:“I have considered the mitigation of the accused person and the nature of offence committed herein. The accused person not only defiled his own daughter, but went ahead and secured an abortion for her. The accused person has two wives, and there is no reason why he again saw it fit to sleep with his own biological daughter. The accused person, instead of being a protector to his family, turned out to be the one who exposed them to danger. This was a beastly act which ought not to be committed by any human race. A deterrent sentence is therefore applicable in the circumstances.” 23.Looking at the above, it is our finding that the trial magistrate properly meted out a sentence after taking into account the aggravating factors and the appellant’s mitigation, leading to the decision condemning the appellant to the sentence of life imprisonment. This sentence was upheld by the first appellate court. The two courts below noted that the appellant sexually assaulted his own daughter on several occasions and forced her to have an abortion. We find that the sentence was appropriate given the circumstances surrounding the offence. The trial magistrate and the learned judge both properly applied the law. Accordingly, we will not interfere with those findings and affirm the said sentence. 24.Before we pen off, we shall revisit the question that we posed at the beginning of the judgment. A reading of section 8(2) and the proviso to section 20(1) of the Sexual Offences Act on sentence is disturbing. We say so because if one is charged with the offence of defiling a child under 11 years, the mandatory sentence is life imprisonment. However, if one is charged with the offence of incest involving a child below 18 years, the proviso in section 20(1) states that he shall be liable to imprisonment for life, thus giving the court discretion to impose any other sentence, including life. So, if in the case of incest, the child is 11 years and below, why should there be discretion which is not in section 8(2)? This is not an issue for determination in this appeal, and we leave it for determination when it arises. 25.In conclusion, we find that this appeal has no merit and it is dismissed in its entirety. It is so ordered. DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JUNE, 2026.M. GACHOKA C.Arb, FCIArb......................................JUDGE OF APPEALJOEL NGUGI.....................................JUDGE OF APPEALMURUNGI B. KAIRARIA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar