[2025] KEHC 4530 (KLR)

HOM v Republic (Criminal Appeal E045 of 2023) [2025] KEHC 4530 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KEHC 4530 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Appeal E045 of 2023

WA Okwany, J

March 27, 2025

Between

HOM

Appellant

and

Republic

Respondent

(Being an Appeal from the Judgment and Sentence in the Chief Magistrate’s Court at Nyamira, Criminal (Sexual Offence) Case No.14 of 2018 delivered by Hon. M.C. Nyigei, Principal Magistrate on 3rd September 2020)

Judgment

1. The Appellant herein was convicted, alongside two co-accused persons (EOS and SOS), for the offence of Incest contrary to Section 20 (1) of the Sexual Offences Act No. The particulars of the charge were that on diverse dates between 10th March 2017 and 4th April 2018 at Nyamira North Sub-County within Nyamira County intentionally caused his penis to penetrate the vagina of P.S.M. (particulars withheld) a girl aged 7 years who was, to his knowledge, his niece.

2. The Appellant and his co-accused were, upon conviction, sentenced to serve 30 years’ imprisonment.

3. Aggrieved by the trial court’s said conviction and sentence, the Appellant filed this Appeal. He listed the following grounds of appeal in the amended Petition of Appeal: - 1. That the Learned Trial Magistrate erred in law and facts by convicting and sentencing the Appellant but failed to find that the elements of the offence were not conclusively proved.

2. That the Learned Trial Magistrate erred in law and facts by failing to find that the Appellant’s defence was cogent and believable.

3. That the Learned Trial Magistrate erred in law and facts by failing to find that the trial was unfair contrary to Articles 50 (2) (a), (b), (c), (g), (h), (k), (m) and (p).

4. That the Learned Trial Magistrate erred in law and facts by conducting a trial that contravened the Appellant’s rights under Articles 20 (2), 25 (a), (c), and 27 (1), 8(4).

5. That the Learned Trial Magistrate acted in error both in law and fact by meting a harsh and excessive sentence against the Appellant.

4. The Appeal was canvassed by way of written submissions which I have considered.

5. The duty of the first appellate court was discussed in the case of Njoroge vs. Republic (1987) KLR 19 at P. 22:4 where the Court of Appeal held thus: -“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of the first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya V. R(1957) EA 336, Ruwalla V. R (1957) EA 570)”

6. A summary of the Prosecution’s case, as presented by 8 witnesses, was as follows: -

7. PW1 testified that her mother worked away from home and that she was left under the care and custody of her grandmother (PW2) BN who also lived with her uncles, the Appellant and his co-accused persons herein. She testified that the Appellant and his co-accused persons defiled her, in turns, on numerous occasions and that she reported the defilement incidents to her grandmother who only quarreled her assailants. The victim explained that it was not until her school headteacher learnt of the incident and intervened that the matter was reported to the police after which she was escorted to the hospital for treatment.

8. PW2, the victim’s grandmother, was on 5th April 2018 tilling her land when the area Assistant Chief (PW4) summoned her to his office over a claim that her 2 sons, and her nephew, the Appellant herein, had been defiling PW1 over a long period of time. She stated that she was not aware of the defilement incidents.

9. PW3, SK, a teacher at [particulars withheld] Primary School testified that she was, on the morning of 5th April 2018, on duty at the school when she was requested to take the victim through counselling and interrogation. She stated that the victim informed her that her uncles had been defiling her over a long period of time.

10. PW4, James Onganga Ombati, the area Assistant Chief was present at the victim’s school where the victim narrated her ordeal in the hands of her uncles. He testified that they later apprehended the three accused persons and escorted them to the victim’s school where she identified them as her assailants.

11. PW5, WMN, the victim’s school head teacher, testified that PW4 and village elders informed him that PW1 was a victim of defilement. The victim was interrogated and she confirmed that she had been defiled severally by the three accused persons.

12. PW6, Nancy Nyaundi, a Clinical Officer, examined the victim and noted that she had a torn hymen, inflamed genitalia and a bruise on the head. High vaginal swab on the victim revealed that she had puss and epithelial cells; urinalysis showed presence of puss cells indicating an infection. She stated that the 3 accused were also examined and found to have puss and epithelial cells. She confirmed that the victim’s vagina had been penetrated. She produced the victim’s P3 form (P.Exh1a), PRC Form (P.Exh1b), Clinic Attendance Card (P.Exh1e) and Examination Card (P.Exh1c). She also produced the Accused persons’ Examination reports (P.Exh1d).

13. PW7, No. 62729 Senior Sergeant Felix Oluoch, the investigating officer, narrated the role that the police played in the investigations, arrest and the arraignment of the accused persons in court.

14. PW8, No. 105714 P.C. Esther Owuor, escorted the victim to the hospital for age assessment and produced the Age Assessment Report (P.Exh. 3) which revealed that the victim was 7 years old.

The Appellant’s Case 15. When placed on his defence, the Appellant (DW1) gave a sworn statement in which he denied the offence and attributed his woes to a land dispute that he had with his father and the area Assistant Chief. He explained the circumstances surrounding his arrest and claimed that he was asked to accompany the Assistant Chief to the victim’s school where he was informed that his father wanted to resell land that he had already sold.

16. The Appellant stated that while he was at the school, the Assistant Chief called the police to arrest them and added that it was at that point that he was surprised to learn of the defilement allegations. He further stated that the chief altered the victim’s statement and bribed the hospital to doctor the P3 Form so as to ensure that they would be convicted. He stated that the case was a fabrication based on falsehoods fueled by the land dispute that he had with his father. He claimed that the Chief had at one time approached them with a buyer for the disputed land and that following his arrest, his father had sold off the land, demolished his house and chased away his family.

Analysis and Determination 17. I have carefully considered the record of appeal and the parties’ respective submissions. I find that the main issues for my determination are: -i.Whether the offence of incest was proved to the required standard.ii.Whether the sentence was appropriate and legal.

Analysis and Determination i. Proof of the offence to the required standard. 18. Section 20 (1) of the Sexual Offences Act (the Act) stipulates as follows: -20(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 cases penetration or the indecent act was obtained with the consent of a female persons.

19. The above Section creates the offence and ingredients of incest and also prescribes punishment generally, in the event that it is proven that the complainant is a minor. The ingredients of the offence of incest are: -(i)Proof that the offender is a relative of the victim.(ii)Proof of penetration or indecent Act.(iii)Identification of the perpetrator.(iv)Proof of the age of the victim.

20. It was not disputed that the victim herein is related to the Appellant by virtue of the fact that she is his niece. PW2, the victim’s grandmother confirmed that the Appellant is her brother’s son and hence her nephew. I am satisfied that the degree of consanguinity between the Appellant and the victim was proved to the required standard.

21. Turning to proof of minority age of the victim, I find that it was also not disputed that she was aged 7 years at the time of the trial. Indeed, PW8 produced the victim’s age assessment report (Pexh.3) which revealed that she was aged 7 years. I find that the ingredient of age was proved to the required standard.

22. The importance of proving the age of a victim in a sexual offence offences was discussed in the case of Kaingu Kasomo vs. Republic Criminal Appeal No. 504 of 2010 where the Court of Appeal held thus: -“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.

23. It is trite that the age of a victim in sexual offences can be proved through several means as was stated in the case of Francis Omuroni vs. Uganda, Criminal Appeal No. 2 of 2000 where the Ugandan Court of Appeal held thus: -“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”

24. As regards penetration, Section 2 of the Sexual Offences Act defines penetration as follows: -“the partial or complete insertion of the genital organs of a person into the genital organs of another person”.

25. Under Section 124 of the Evidence Act, penetration can be proved through the sole evidence of the victim or through the victim’s evidence corroborated by medical evidence.

26. The Respondent submitted that penetration was proved through the victim’s testimony and the medical evidence adduced by the clinical officer as recorded on the P3 Form and laboratory test results.

27. On his part, the Appellant submitted that no evidence was tendered to corroborate the victim’s evidence on penetration. He argued that PW6, the Clinical Officer, was not qualified to give evidence or examine the victim so as to confirm if she was defiled and that the trial court erred when it concluded that there was penetration based on the presence of epithelial cells on the vaginal victim’s wall. The Appellant contended that there was no evidence to show that the epithelial cells found on the victim were from him and that the absence of a hymen was not proof of penetration.

28. Section 124 of the Evidence Act stipulates as follows: -124. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.

29. In Chila vs. Republic (1976) E.A, it was held thus: -“The law of East Africa on corroboration in sexual cases is as follows: The Judge should warn the assessors and himself of the danger of acting on the uncorroborated testimony of the complainant, but having done so, he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless the appellate court is satisfied that there has been no failure of justice.”

30. The victim testified as follows on penetration: -“O and O used to do bad things to me on my private parts. My mum was away. I cannot remember all the dates that the accused persons were doing bad things to me. On the first day that bad things were done to me, I was outside playing……O(points at Accused 3) took me to where he normally sleeps at the kitchen…. We found O (points at Accused 1) and O (points as Accused 2). I was wearing a black skirt and a blouse. I also had my inner wear. O (points at Accused 1) removed my inner wear. There was one mattress in the kitchen. O started doing bad things to me. On first removed his long trouser. He then put saliva on his penis and placed it on my private parts (points at her vagina). O pushed his private parts inside my private parts. I felt painful. After O finished, Oyeyo also removed his trouser and put saliva on his penis. He then started doing bad things on my private parts. After O finished, O (points at Accused 1), also removed his trouser, put saliva on his penis and proceeded to insert his penis inside my private parts. After they finished, I went outside the kitchen and after, I put on my inner wear…..”

31. The trial court considered the victim’s testimony and the medical evidence and rendered itself as follows on penetration: -“From the above documents, it is safe to conclude that penetration, as an ingredient of the offence herein, has been proved.”

32. I have considered the systematic manner in which the victim narrated her ordeal at the hands of her own uncles. I find that her testimony was vivid, graphic, consistent and compelling. Her testimony remained unshaken on cross-examination. She explained, in great detail, the sequence of the events that took place at the time she was first defiled by the Appellant and his co-accused. I do not find any reason to doubt the victim’s testimony. I also note, from the voire dire examination of the victim, that the trial court observed that she was sufficiently intelligent to testify. I find that the victim was fully aware of what transpired on the date she was defiled and that she ably narrated her ordeal.

33. PW6, the Clinical Officer, corroborated the victim’s testimony and produced medical evidence which confirmed that she victim had been defiled. I am satisfied that the ingredient of penetration was proved beyond reasonable doubt.

34. On the identification of the Appellant as the victim’s assailant, I find that the Appellant and his co-accused were not only well-known to the victim as her uncles and blood relatives but that they also lived together in the same home. I also note that the offence was committed on several occasions thereby making the evidence of identification more credible. I therefore find that the Appellant’s identification was safe and without any possibility of error.

35. I have considered the Appellant’s defence and the claim that the offence was fabricated and precipitated by a land dispute that he had with his father. He further claimed that the Clinical Officer (PW6) was bribed to prepare incriminating documents so as to secure their conviction.

36. I note that the Appellant’s allegations of bribery and land dispute did not arise during his cross examination of the Prosecution witnesses. No material was presented to prove the bribery or land dispute claims. I therefore find that the Appellant’s defence amounted to an afterthought that did not displace the otherwise watertight evidence presented by the prosecution. This court finds it hard to believe that the Appellant’s own father could have been behind the alleged scheme to implicate him in the heinous crime of incest.

37. On the issue of alleged violation of the Appellant’s right to a fair hearing based on the claim that he was not supplied with witness statements during the trial, I find that the said claim is not true or factual. I say so because the record shows that upon taking plea on 9th April 2018 the trial court directed the Prosecution to supply the accused persons with the said witness statements. I also note that at no time during the proceedings before the trial court did the Appellant complain that he had not been supplied with the said statements. The record shows that the Appellant was accorded ample time to cross-examine the Prosecution witnesses. I find that the claim of violation of right to fair trial was not proved.

38. Based on the foregoing, it is my firm finding that the Prosecution proved all the ingredients of incest beyond reasonable doubt. I therefore uphold the conviction by the trial court.

ii. Whether the sentence was legal and appropriate 39. As I have already noted elsewhere in this judgment, the offence of incest attracts the sentence of imprisonment for life where the victim is below the age of 18 years. I note that the victim in this case was a child of 7 years.

40. The question which arises is whether the said section provides for a mandatory life sentence. I find guidance in case of M K vs. Republic [2015] eKLR where the Court of Appeal court cited the case of Opoya vs. Uganda and held thus: -“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…..

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.”

41. Taking a cue from the above decision, I find that the trial court was free to depart from passing the life imprisonment sentence provided by the proviso under Section 20 (2) of the Act. When passing the sentence of 30 years’ imprisonment, the trial court considered the Appellant’s mitigation and noted that he was related to the victim. The trial court also noted that the Appellant, who should have been the victim’s protector, turned out to be her assailant which was an aggravating factor that far outweighed the mitigating factors.

42. I have considered the principles that govern the appellate court when dealing with circumstances when it may interfere with the trial court’s exercise of discretion during sentencing. I find guidance in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where the Court of Appeal held thus: -“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

43. This Court is also alive to the objectives of sentencing under the Judiciary Sentencing Guidelines (2016) and the factors that must be considered during sentencing. In R vs. Scott (2005) NS WCCA 152, Howie J. Grove and Barn JJ stated:-“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed…… one of the purposes of punishment is to ensure that an offender is adequately punished…. a further purpose of punishment is to denounce the conduct of the offender

44. Having regard to the findings and observations that I have made on sentencing, I find that in the circumstances of this case, the trial court was lenient when it passed the sentence of 30 years imprisonment. I must point out that the gravity of the offence in this case cannot be downplayed. This case involved a heinous and barbaric crime committed by three adults who elected to gang defile their own flesh and blood on numerous occasions thereby snatching away her innocence and subjecting her to untold severe trauma and suffering.

45. It is evident that the Appellant and his co-accused are a great danger to young and vulnerable children like the victim herein. It is for these reasons that I hold the view that the sentence in this case was not only legal but also appropriate. I therefore uphold the sentence passed by the trial court but hasten to add that the trial court did not consider the period that the Appellant spent in custody, while awaiting his trial, during sentencing as required by Section 333(2) of the Criminal Procedure Code (CPC).

46. In the final analysis, while I dismiss the appeal on conviction, I allow the appeal on sentence and hereby find that the 30 years sentence should be computed to factor in the period, if any, that the Appellant spent in custody while awaiting his trial.

47. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 27THDAY OF MARCH 2025. W. A. OKWANYJUDGE