https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9219

GOH v Republic (Criminal Appeal E018 of 2026) [2026] KEHC 9219 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9219 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E018 of 2026 DR Kavedza, J June 30, 2026 Between GOH Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. M. Murage (P.M) on 29th January 2026 at Kibera Chief Magistrate’s Court Sexual Offences Case No. E068 of 2024 Republic vs GOH) Judgment 1.The appellant was charged and after a full trial convicted for the offence of incest contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on the diverse dates between 1st and 31st day of January 2024 in Dagoretti Sub-County, within Nairobi County you intentionally and unlawfully caused his penis to penetrate the vagina of MH a child aged 14 years who was to his knowledge his daughter. He was sentenced to life imprisonment. 2.Aggrieved, he filed the present appeal, challenging his conviction and sentence. In his appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3.This being a first appeal, it is the duty of this court as the first appellate court, to reconsider, re-evaluate, and re-analyse the evidence afresh and come to its own conclusion on that evidence. The court should however bear in mind that it did not see witnesses testify and give due consideration to that. (See Okeno v Republic [1972] EA 32). 4.The prosecution called six (6) witnesses in support of their case. The complainant, PW1, gave sworn evidence after a voir dire examination. She testified that the Appellant, her biological father, found her sleeping, woke her up and told her that medicine would protect her from her step-mother’s beatings and mistreatment. He instructed her to remove her clothes, applied oil on her, inserted his penis into her vagina, touched her breasts and warned her not to tell anyone or the medicine would not work. 5.She stated that she was born on 20th June 2010, suffers from sickle cell disease and had never been given any ointment by the Appellant. On 5th June 2024 she was sent home from school due to fees arrears. On cross-examination she stated that she cried during the incident but the Appellant proceeded as her brother was asleep and her step-mother was absent. She was rescued by AW and CW after they found her doing house chores while unwell. 6.PW2, Edith Kerubo, a nurse at Coptic Hospital, testified that the minor was brought by a police officer from Muthangari Police Station. She reported physical and emotional abuse by her step-mother. On examination, there was a healed scar on the chin consistent with a knife cut approximately 18 weeks old. The hymen was not intact and had an old tag. Penetration was established. During cross-examination she confirmed that no ointment is applied for sickle cell disease and that defilement had occurred. 7.PW3, FA, testified that the Appellant asked her to accommodate PW1 while he looked for school fees. On Saturday the child fell sick. She contacted the Appellant who later came with painkillers. When the child’s condition worsened, neighbours assisted and took her to Nairobi Women’s Hospital. The doctor required the Appellant’s presence. The neighbours later found the child doing house chores despite being unwell and took her to the Children’s Office. During cross-examination she stated that she heard the child confess at the Children’s Office that the Appellant had defiled her. 8.PW4, AW, testified that while waiting for her cousin she noticed the child could not jump a trench. The child was taken to Riruta Health Centre where she disclosed that her father, the Appellant, had defiled her. The matter was reported the following day at Muthangari Police Station. During cross-examination she stated that at the Children’s Office the child said the Appellant defiled her so she would be immune to her step-mother’s mistreatment. 9.PW5, CW, testified that she was called by PW3 about the child’s illness. They took her to hospital but she was not treated. She later found the child doing house chores and they reported the matter to the Children’s Office and Muthangari Police Station. The child confessed mistreatment by her step-mother and defilement by the Appellant. During cross-examination she stated the child confessed being defiled twice by the Appellant and was walking with legs apart. 10.PW6, PC Wanjiru of Muthangari Police Station, corroborated the evidence of PW1, PW3, PW4 and PW5. 11.At the close of the prosecution case the Appellant was found to have a case to answer and was placed on his defence. 12.In his sworn testimony the Appellant stated that the child has sickle cell disease and he had been giving her medication. He claimed the child was mistreated by his wife and he did not understand why she was not charged. During cross-examination he admitted knowing his wife was mistreating the child but did not report her. He stated he would pay school fees and did not understand why the child accused him of defilement. 13.After a full trial, the appellant was convicted and sentenced accordingly. 14.The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 15.The thrust of the grounds of appeal is that the prosecution failed to prove its case beyond reasonable doubt. 16.Section 20 (1) of the Sexual Offences Act, provides that:(1)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. 17.The critical ingredients for the offence of incest as defined in section 20 (1) of the Act are that:the victim and the accused fall within the prohibited degrees of consanguinity, the age of the complainant, proof of penetration, and positive identification of the perpetrator. 18.The first issue for consideration is the relationship between the victim and the perpetrator and whether the Appellant was positively identified. PW1 testified that the Appellant is her biological father. The Appellant did not dispute this fact and the birth certificate produced by the investigating officer confirmed that the Appellant is the biological father of the minor complainant. The relationship of father and daughter was therefore clearly established. 19.The second issue is the age of the complainant. The birth certificate produced by PW6 confirmed that the complainant was born on 20th June 2010. At the time of the incident she was fourteen years old and therefore below the age of eighteen years. She was a child within the meaning of the law. 20.The third issue concerns the act of penetration. The complainant testified that the Appellant inserted his penis into her vagina on the pretext that it was medicine that would protect her from her step-mother’s mistreatment. The medical evidence tendered by the clinical officer established that the complainant’s hymen was broken in a manner consistent with penile penetration. Penetration was proved beyond reasonable doubt. 21.The fourth issue is the identity and presence of the Appellant at the time of the offence. The complainant testified that the Appellant was the person who committed the act. The Appellant was in the complainant’s company when the offence occurred and no plausible explanation was offered to counter or disprove the allegation that he was the perpetrator. 22.The fifth issue relates to the chain of evidence. The complainant’s clear and consistent testimony, together with the medical findings confirming penetration, forms a coherent chain of evidence. The Appellant’s defence did not provide any credible alternative explanation capable of raising reasonable doubt. 23.Having considered all the above elements, the prosecution proved its case against the Appellant beyond reasonable doubt. The Appellant was positively identified as the biological father of the complainant, the age of the complainant was established, penetration was proved, and the Appellant was the perpetrator of the offence. The trial court’s conviction is accordingly affirmed and upheld. 24.On sentence, the Appellant was sentenced to life imprisonment, being the maximum sentence prescribed for the offence of incest. While the offence is undoubtedly grave and attracts severe punishment, sentencing must remain proportionate to both the circumstances of the offence and the offender. 25.Having considered the record, the mitigation tendered, and the applicable sentencing principles, I find that the maximum sentence was excessive in the circumstances of this case. In the interests of justice, the sentence of life imprisonment is set aside and substituted with a sentence of thirty (30) years' imprisonment, to run from 14th June 2024, the date of the Appellant's arrest, pursuant to section 333(2) of the Criminal Procedure Code, Cap 75 Laws of Kenya. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026________________D. KAVEDZAJUDGEIn the presence of:Mr. Musili for the AppellantMs. Otiya for the RespondentKarimi Court Assistant.