https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10546

JKK v Republic (Criminal Appeal E001 of 2024) [2026] KEHC 10546 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10546 (KLR) Republic of Kenya In the High Court at Bomet Criminal Appeal E001 of 2024 JK Ng'arng'ar, J July 16, 2026 Between JKK Appellant and Republic Respondent (From the Conviction and Sentence in Sexual Offence Case Number E007 of 2023 by Hon. Boke E. in the Magistrate’s Court in Bomet) Judgment 1.The Appellant was charged with the offence of Incest contrary to Section 20(1) the Sexual Offences Act. The particulars of the offence were that on diverse dates between 27th September 2022 and 27th January 2023 in [Particulars Withheld] within Bomet County, he intentionally touched the vagina of P.C with his penis who was to his knowledge his daughter. 2.The Appellant faced an alternative charge of 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 diverse dates between 27th September 2022 and 27th January 2023 in [Particulars Withheld] within Bomet County, he intentionally touched the vagina of P.C, a child aged 3 years with his penis. 3.The Appellant pleaded not guilty to the charges before the trial Court and a full hearing was conducted. The prosecution called seven (7) witnesses in support of its case. The Appellant on the other hand gave sworn testimony and called one witness in aid of his defence. 4.In its Judgment dated 22nd February 2024, the trial Court convicted the Appellant of the charge of incest and sentenced him to serve 20 years imprisonment. 5.Being aggrieved with the Judgment of the trial Court, the Appellant, Josphat Kipkoech Kirui filed an Appeal dated 6th March 2024 appealing against his conviction and sentence. 6.This being the first appellate Court, I have a duty to re-evaluate the evidence on record afresh and come to my own independent conclusion. 7.I proceed to briefly summarize the case that was before the trial Court in the succeeding paragraphs and the submissions in the present Appeal. The Prosecution’s/Respondent’s case. 8.It was the Prosecution’s case that the Appellant defiled his daughter, P.C. The victim’s mother (PW1) testified that she got a report that the Accused had removed their daughter P.C from school without her permission. PW1 further stated that when she got P.C, she appeared sickly and when she was presented for treatment, it was discovered that she had been defiled. 9.Julius Magut (PW7), a clinical officer at Longisa Hospital testified that he examined P.C on 21st January 2023 and found that she had a broken vulva, bruises on her labia minora and numerous epithelial cells. PW7 formed the opinion that P.C had been defiled. 10.Through its written submissions dated 6th May 2026, the Respondent submitted that the lack of the word ‘penetration” did not make the Charge Sheet defective. That the same was curable under Section 382 of the Criminal Procedure Code. The Respondent further submitted that at the plea taking stage, the Accused failed to raise an objection as to his understanding of the charges. 11.It was the Respondent’s submission that it proved its case beyond reasonable doubt. That the complainant reported the Appellant to be her assailant and further that the Appellant had the sole custody of the complainant at the time of the incident. It was the Respondent’s further submission that the trial Court came to the right conclusion that the Appellant was the perpetrator of the offence. 12.The Respondent submitted that the offence attracted the maximum sentence of life imprisonment and that this Court ought to enhance the Appellant’s sentence. The Appellant’s defence. 13.The Appellant (DW1) denied committing the offence. He testified that he had disagreed with his wife (PW1) and that PW1 was framing him. DW1 further testified that P.C was his child but was living with his mother and further that he did not bath or dress her (P.C). 14.Racheal Langat (DW2) testified that she was the Accused’s mother and stated that she was the one living with P.C. DW2 denied that the Accused defiled P.C. DW2 further testified that the Accused and PW1 had marital issues and the same were escalated to the Children’s Office then later the Chief’s Office. 15.At the time of writing this Judgment, the Appellant had not filed his written submissions despite being directed to so by this Court on 11th May 2026. 16.I have gone through and considered the trial Court’s proceedings; the Petition of Appeal dated 6th March 2024 and the Appellant’s written submissions dated 6th May 2026. The following issues arise for my determination: -i.Whether the Charge Sheet was defective.ii.Whether the Prosecution proved its case beyond reasonable doubt.iii.Whether the Appellant’s defence cast any doubt on the Prosecution’s caseiv.Whether the sentence preferred against the Appellant was just and fair. Whether the Charge Sheet was defective 17.Other than raising the above as his ground of Appeal, the Appellant failed to indicate how the Charge Sheet was defective. The Respondent submitted that the defectiveness of the Charge Sheet was that the word ‘penetration’ was missing in the Charge Sheet. The Respondent further submitted that the same was not fatal but curable under Section 382 of the Criminal Procedure Code. 18.The substantive law on defective Charge Sheets is Section 134 of the Criminal Procedure Code which provides as follows: -Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. 19.The Court of Appeal in the case of Isaac Omambia v Republic [1995] KECA 156 (KLR) stated as follows: -“In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.” 20.From the trial court record, the Appellant was charged with the offence of incest contrary to Section 20(1) of the Sexual Offences Act. The Appellant took plea on 30th January 2023 and the trial commenced and proceeded with seven prosecution witnesses who were all cross examined by the Appellant and later by his Advocate. When the Appellant was placed in his defence, he testified, called one witness and closed his case. The Appellant was fully aware of the charge he faced from the beginning and actively participated in the trial and the trial culminated with his defence. 21.The key issue in determining whether a charge sheet is defective or not is the prejudice it would cause the Appellant. The Court of Appeal in Benard Ombuna v Republic [2019] KECA 994 (KLR) held as follows: -“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 22.Having considered the trial court record, I am satisfied that the Appellant faced no prejudice as he had the opportunity to present his defence, which he did. In essence, the charge sheet was not defective and I therefore dismiss this ground of appeal. Whether the Prosecution proved its case beyond reasonable doubt. 23.The offence of incest is defined in Section 20(1) of the Sexual Offences Act as: -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 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. 24.In F O D v Republic [2014] KEHC 8847 (KLR), Majanja J. (as he then was) held: -“While in the case of incest, the prosecution was only required to prove either penetration or an indecent act, in defilement the prosecution was required to prove penetration. The additional element of the relationship between the accused and the child is what makes the offence incest.” 25.Further, in MG vs Republic (Criminal Appeal E051 of 2021) [2022] KEHC 14454 (KLR) (27 October 2022) (Judgment), Mativo J. (as he then was) held: -“Thus, the ingredients for 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.” 26.I agree with the above persuasive authorities which aptly explain the ingredients of the offence of incest. 27.Regarding the age of the victim, Caroline Chepkirui (PW1) who was the victim’s mother testified that the victim was born in September 2019. No. 106165 PC Susan Kanini (PW5) who was the Investigating Officer produced a Birth Certificate as P. Exh 1. I have looked at the Birth Certificate and it indicated that the victim was born on 19th September 2019. It is my finding that the victim was aged 3 years at the time of the commission of the offence. 28.With regard to the issue of identification, the victim’s mother (PW1) testified that when she rescued the victim from her father (Appellant), she discovered that she was emaciated and when she took her for medical treatment, PW2 discovered that the victim had been defiled. PW2 further testified that when she asked the victim who had defiled her, the victim stated that the Appellant defiled her by inserting a sharp object in her private parts. PW1’s testimony on identification was uncontroverted upon cross examination. 29.No. 106165 PC Susan Kanini (PW5) who was the investigating officer testified that when she interrogated the victim, the victim stated that the Appellant used to touch her in her private parts and caress her. PW5 recorded the victim’s statement and produced it as P. Exh 5. I have looked at the victim’s statement and it corroborated PW5’s testimony on identification of the Appellant. PW5’s testimony was uncontroverted upon cross examination. 30.No. 245616 PC Davin Nyaboke (PW3), No. 119556 PC Victor Abuya (PW4) and No. 106165 PC Susan Kanini (PW5) all testified as arresting officers. They testified that they arrested the Appellant on 27th January 2023 and the Appellant was in possession of the victim. 31.I do note that the trial court declared the victim as a vulnerable witness as the victim had difficulty in testifying. As rightly put by the trial court, Section 2 of the Sexual Offences Act applied in this case as the complaint was lodged by the mother (PW1) and this prevented a sexual offence matter from collapsing simply by want of the victim’s testimony. Section 2 of the Sexual Offences Act described a complainant as: -“complainant" means the Republic or the alleged victim of a sexual offence and in the case of a child or a person with mental disabilities, includes a person who lodges a complaint on behalf of the alleged victim where the victim is unable or inhibited from lodging and following up a complaint of sexual abuse 32.The Appellant in his defence acknowledged the PW1 to be his wife and the victim to be his daughter. In my view, this was evidence of recognition and there could be no mistaken identity. 33.Flowing from the above, it is clear to me that the issue of positive identification of the Appellant by the victim was beyond doubt. The absence of the victim’s testimony was not damning and could not dislodge the damning and overwhelming evidence on identification as shown above. Further, the Appellant’s relationship with the victim was in consonance with the provisions of Section 20(1) of the Sexual Offences Act. 34.With regard to penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. 35.Medical evidence was presented by Julis Magut (PW7), a clinical officer at Longisa County Referral Hospital. PW7 testified that he examined the victim and found that she had a broken vulva, bruises on her labia minora, freshly torn hymen and numerous epithelial and pus cells. It was PW7’s conclusion that there had been vaginal penetration. PW7’s testimony was uncontroverted upon cross examination. 36.PW7 produced treatment notes, P3 Form and PRC Form as P. Exh 4, P. Exh 5 and P. Exh 6 respectively. I have looked at the exhibits and the findings on the treatment notes, P3 and PRC Forms mirrored the testimony of PW7. I accept the medical evidence and PW7’s conclusion that the victim had been penetrated. It is therefore my finding that the Prosecution proved the element of penetration to the required legal standard. 37.The sum total of the above is that the Prosecution provided sufficient evidence to sustain the charge of incest. Whether the Appellant’s defence cast any doubt on the Prosecution’s case 38.The Appellant denied committing the offence. He stated that he was being framed by his wife (PW1) as a result of a marital disagreement. The Appellant further testified that the victim lived with his mother (DW2) and that he never bathed or dressed her. 39.It was DW1’s testimony that when he was arrested, he was compelled to take a urine test but could not produce urine as his bladder failed him. It was DW1’s further testimony that the victim’s statement produced by the Investigating Officer was a lie because the victim could not speak owing to her age. When DW1 was cross examined, he testified that he was with the victim when the police arrested him. 40.Racheal Langat (DW2) who was DW1’s mother testified that she lived with the victim and the Appellant could not have defiled her. DW2 further testified that PW1 was away at Sigor and could not have known what transpired back home and further that the Appellant and PW1 had marital issues. When DW2 was cross examined, she testified that she was not with the victim when the Appellant was arrested. 41.I have looked at the defence in its entirety and it is my finding that it is insufficient. I say so because when the Appellant cross examined PW1 on the issue of being framed, PW1 testified that she had no personal vendetta against him. Further, the Appellant was placed at the scene in the company of the minor by the arresting officers (PW2, PW3 and PW4), a fact that was confirmed by the Appellant’s testimony. There was absolutely no way the victim could have defiled herself and the only suspect was the Appellant who was last found with the victim. 42.It is my finding that the Appellant’s defence was weak, insufficient an afterthought and did not cast any doubt on the Prosecution case which I have found proven. Whether the sentence preferred against the Appellant was just and fair. 43.Having found that the Prosecution had proved the offence of incest, the penal section is found in section 20(1) of the Sexual Offences Act which provides: -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 44.It was a ground of the Appellant that the sentence was illegal. The Court of Appeal in Manyeso vs Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment) and Ayako v Republic [2023] KECA 1563 (KLR) held that a life sentence was indeterminate in nature and the same was declared unconstitutional. However, this position was overturned by the Supreme Court when it pronounced itself on the matter and held that the Court of Appeal had no jurisdiction to substitute a life sentence with a 30-year sentence. The Supreme Court in Petition Number E002 of 2024, Republic vs Evans Nyamari Ayako held: -“In the circumstances, we agree with the Appellant that the Court of Appeal assumed original jurisdiction over the interpretation and application of the Constitution, a mandate of the High Court under Article 165(3)(d) of the Constitution. In stating so, we reiterated In the Matter of the Interim Independent Electoral Commission (Applicant) (Constitutional Application No. 2 of 2011) [2011] KESC 1 (KLR), that the High Court has the mandate to interpret the Constitution, while the Court of Appeal and the Supreme Court have appellate jurisdiction over the same matters having been resolved by the High Court at first instance. Equally, in the Republic vs Mwangi Case (supra) we held that before courts can consider the constitutionality or legality of minimum sentences and mandatory sentences, the issue must first have been canvassed and escalated through the proper channels……..……………….In the Republic vs Mwangi Case, this Court held that, whilst sentencing is an exercise of judicial discretion, Parliament sets the parameters for sentencing for each crime in statute. We stated as follows:“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed”………………….In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers.” 45.The take home from the above is that the life sentence as provided for in section 20(1) of the Sexual Offences Act is a lawful and valid sentence. 46.Having considered the circumstances of this case, I am of the view that the 20-year sentence passed by the trial court was insufficient. The victim being of tender years was violated by her father and contracted fistula. The Appellant deserves a harsher sentence. In line with this, the Respondent filed a Notice of Enhancement of Sentence dated 5th May 2026 in which they prayed for a life sentence for the Appellant. I agree. 47.In the end, I uphold the Appellant’s conviction. Further, the Appellant’s 20-year sentence is vacated and substituted with a life sentence. 48.14 days Right of Appeal. JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 16TH DAY OF JULY, 2026............................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgment Delivered in the presence of;Susan/Zachary – Court AssistantMs Koech for the StateAppellant – present