https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9863

JM v Republic (Criminal Appeal E087 of 2023) [2026] KEHC 9863 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEHC 9863 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Appeal E087 of 2023 AK Ndung'u, J July 7, 2026 Between JM Appellant and Republic Respondent (Being an Appeal from the sentence and conviction delivered in Nanyuki CMCCRC (SO) No. E087 of 2023 delivered by Hon. V.M. Masivo (SRM) on 12/06/2023) Judgment 1.The Appellant was charged was charged with the offence of Incest contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the main charge were that on diverse dates between 19th and 20th day of February 2019 at [Particulars Withheld] Sub-County, Meru County within the Republic of Kenya, he caused his penis to penetrate the vagina of L.K who was to his knowledge his sister aged 16 years old. 2.The Appellant pleaded not guilty and the matter then proceeded to full hearing with the prosecution calling three witnesses whereas the defence gave sworn evidence and did not call any witnesses. 3.Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial court convicted the Appellant of the main charge and sentenced him to 9 years imprisonment. 4.Being dissatisfied with the decision of the trial court, the Appellant instituted the present appeal vide an undated Petition of Appeal premised on the following grounds;1.That the learned trial magistrate erred in matters of law and fact by failing to note that the prosecution did not prove their case beyond any reasonable doubt.2.That the learned trial magistrate erred in matters of law and fact by relying on a single witness evidence.3.That the learned trial magistrate erred in matters of law and fact by failing to note that the complainant was the sister to the appellant hence was coerced into giving false allegations;4.That the learned trial magistrate erred in matters of law and fact by failing appreciate that there were no physical injuries, no tears, no bruises according to the medical examination;5.That the learned trial magistrate erred in matters of law and fact by failing to note that the complainant tried to tell the court later after giving her testimony that the allegations were false and the same quashed.6.That the learned trial magistrate erred in matters of law and fact by failing to note that the hymen was old broken, normal external genitalia and no foul smell according to the medical examination.7.That, (I) pray for the complainant to be summoned to testify in this honourable court as she is willing to shed light as to what transpired my lordship.8.That (I) pray to be present at the hearing of this Appeal and to be served with trial court proceedings in order to adduce more grounds.9.That (I) pray may this appeal succeed in its entirety. 5.The Appeal was then prosecuted by way of written submissions. Appellants’ submissions 6.The Appellant opened his submissions by listing an Amended memorandum grounds of Appeal pursuant to section 350(2) (iv) of the Criminal Procedure Code to wit;1.That the learned trial magistrate erred in matters of law and fact by failing to note that the case herein as not proved beyond a reasonable doubt contrary to section 107 of the Evidence Act.2.That the learned trial magistrate erred in matters of law and fact by failing to accept the complainants’ new compelling evidence that the allegations herein were falsified and trumped up contrary to section 146(4) of the Evidence Act.3.That the learned trial magistrate erred in matters of law and fact by failing to note that there was non-disclosure of material evidence contrary to Article 50 of the Constitution.4.That the learned trial magistrate erred in matters of law and fact by quashing the accused’s defence without weighing it vis a vis the prosecutions’ weak case. 7.The Appellant urged that the case was not proved beyond reasonable doubt. He cited Section 20 (1) of the Sexual offences Act and listed the ingredients of the offence. He urged that the age of the complainant was not proved. He stated that there was a contradiction between the age stated in the charge sheet and the testimony of PW1, PW2 and PW3, urging that no original birth certificate was ever tendered to prove the same. 8.On knowledge that she was his sister, the Appellant urged that the court relied on hearsay evidence and that there was no documentary evidence tendered to prove the same. That the investigating officer never conducted any investigations on the same and further, that the trial magistrate depended on said information to convict the accused. He maintained that the trial court erred in convicting him when the element of sanguinity was not proved. 9.The Appellant urged that penetration was also not proved. He cited section 124 of the Evidence Act and urged that the complainant was untruthful and her evidence was disjointed, inconsistent and lacked credibility. He stated that there were contradictions in her evidence as to her age and the number of times she had been defiled, labelling her a hostile witness whose evidence was doubtful. He cited David Odhiambo Koyo vs Republic – Court of Appeal at Nairobi – (Criminal Appeal No. 86 of 1994) in this regard and urged that the oral evidence of the Complainant could not sustain a conviction. 10.The Appellant urged that the complainant, of her own volition, decided to tell the truth that the appellant never offended her and that the charge was falsified. That she even wrote a letter which the prosecution admits. That it was imperative for the trial court to take note of the same which it failed to. 11.The Appellant submitted that there was non-disclosure of material evidence as he was not given the witness statements of the witnesses in contravention to his right to a fair trial under Article 50 of the Constitution. Reliance was placed on Arnold Odhiambo Ogolla & Another vs Rep (2013) eKLR. 12.The Appellant maintained that the trial court failed to give weight to his evidence despite there being no rebuttal of the same from the prosecution. He cited the case of Republic vs Sharif Mohammed Hija (2016) eKLR and urged the court to allow the Appeal. Respondents’ Submissions 13.Counsel for the state submitted that the offence is found at Section 20 (1) of the Act which provisions he reproduced. He urged that to sustain a conviction in an Incest charge, the prosecution ought to prove among other factors that either penetration has occurred, or an indecent act has occurred. The use of the conjunctive word, ‘or’ between ‘indecent act’ and, ‘an act which causes penetration’ suggests that either of the two elements; indecent act, with or without penetration, or penetration itself, is sufficient to prove the offence. 14.Counsel urged that Section 2(1) of the Act defines indecent act in part as an intentional act which causes (a) any contact between any part of the body of a person with the genital organs...” Counsel cited LOA v Republic (Criminal Appeal 35 of 2016) [2020] KECA 927 (KLR) (31 January 2020) (Judgment), the Court of Appeal (Asike-Makhandia, Kiage & Odek) on the elements of the offence. 15.Counsel reproduced the testimonies of the witnesses and urged that when the medical documents were returned after PW1 issued them, there was evidence that the Complainant’s private part had been touched. Further, that PW1 established that the Appellant and the Complainant used to live together and that the incidences had happened on diverse dates between 19th and 20th February 2019. Further, that to establish the Complainant’s age, PW1 obtained the Birth Certificate that showed that she was 16 years at the time. A copy of the Birth Certificate was produced as Exhibit 3 by consent of the parties. Further, that PW1 stated that both the Complainant and the Appellant confirmed that they were siblings. 16.Counsel basically reproduced the testimonies of all the witnesses and urged that the sex of PW2 herein cannot be in doubt as the Birth Certificate, P3 and PRC Forms and the testimonies of PW1-3 were consistent that indeed PW2 was a girl hence a female person for the purpose of the Act. Neither was there contention on the gender of PW2. 17.Counsel urged that the element of the relationship between the victim and the perpetrator in our view, is twin fold. There is the issue of identity of the perpetrator, and then there is their relationship with the victim. There can be no error in identification of the perpetrator herein since he was related to PW2 by blood as they shared the same mother and they had stayed with her for a couple of days before the ordeal. The evidence against the Appellant was therefore one of recognition rather than identification, which is even more paramount. 18.Regarding the degree of consanguinity, Counsel urged that there can be no doubt that PW2 and the Appellant were related as siblings. PW1 asserted that the Appellant was her brother from the same mother but with different fathers which was uncontroverted. Furthermore, the Appellant himself admitted that PW2 was his step-sister. He urged that at Section 22(1) of the Sexual Offences Act, a brother and sister are defined to also include a half-sister and half-brother. That the Section further defines half-sister and half-brother as siblings who only share one parent. This definition fits squarely with that of PW2 and the Appellant. 19.Counsel urged that penetration can be proved through direct and indirect evidence, citing the decision of Bassita vs Uganda SC Criminal Appeal No. 35 of 1995 in this regard. He submitted that the direct evidence of PW2 was corroborated by the evidence of PW2. That at the very least, the evidence showed that the appellant committed indecent acts towards his sister. 20.Counsel pointed out that the allegation that the complainant was willing to give new and compelling evidence that the case was falsified was untrue. That the complainant stated in court that she had forgiven him and this renders the submission that the Appellant that the complainant was going to change her story hollow and speculative. 21.Counsel urged that the defence was merely a denial and afterthought. Further, that PW2’s birth certificate showed that she shared a birth mother with the Appellant as he had claimed SK was his mother as well. Counsel cited section 26(4) of the Births and Deaths registration Act and the decision of the Court of Appeal in ASK vs Republic (Criminal Appeal 59 of 2021)[2023] KECA 719 (KLR) (9 June 2023)(Judgement) on the unrebutted presumption as to the mother of the Appellant. 22.Counsel urged that the alibi was uncorroborated and the allegation of the frame up due to a will was unfounded as it was not clearly established whether the will was drafted before or after the death of his grandfather. 23.On sentence, Counsel urged cited section 20(1) of the Sexual offences Act and submitted that PW2 was a minor and that the phraseology of the proviso makes the sentence of Life imprisonment as a mandatory minimum sentence. He cited R V Joshua Gichuki Mwangi & Others -Petition No. E018 of 2023 and urged that the Supreme Court clarified that the Muruatetu case does not apply to minimum sentences under the Sexual Offences Act. 24.Counsel submitted that the minimum sentence the Appellant could have gotten is Life imprisonment but he only got 9 years. In his view, this sentence was illegal as the provision to Section 20 (1) leaves no discretion, as has indeed been interpreted by the Supreme Court in the case above. He urged that the sentence be enhanced to Life Imprisonment in line with the mandatory provisions of the law. That the Court indeed has the power to enhance a sentence as per Section 354(3b) of the Criminal Procedure Code. Analysis & Determination 25.This being a first appeal, this Court is under a duty to subject the entire evidence tendered before the trial court to a fresh and exhaustive examination, analyse it and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. The court is not bound to merely scrutinise the evidence to ascertain whether there was some evidence upon which the trial court could have reached its decision but must itself weigh the conflicting evidence and make its own findings. See Okeno v Republic [1972] EA 32, Kiilu & Another v Republic [2005] 1 KLR 174 and Mark Oiruri Mose v Republic [2013] eKLR. 26.PW1 was Corporal Kipkazi Buret, the investigating officer. He testified that on 20/2/2019, he was attached at Timau Police Station when the complainant lodged a complaint of incest against her brother. He issued her with a P3 Form and directed her to Nanyuki Teaching and Referral Hospital. He produced the P3 Form dated 21/2/2019 and the PRC Form dated 20/2/2019. He testified that he visited the scene and discovered that the Accused and the complainant used to stay together. 27.It was his testimony that the complainant told him that the incident occurred on diverse dates between 19th and 20th January 2019.He stated that the complainant was 16 years old at the time of the offence and he confirmed this from the birth certificate showing her date of birth as 1/12/2002. Further, that the original birth certificate is in custody of the complainant who refused to hand over the original. 28.Counsel for the prosecution made an application to be allowed to present the copy of the birth certificate which was allowed unopposed. It is allowed for reasons given. He stated that the Accused and the complainant admitted to be brother (s) and sister (s). 29.During cross examination he stated that the first information he got from complainant was that she was 14 years and on perusing the birth certificate he confirmed that she was 16 - 17 years. When referred to the birth certificate he stated that the date of birth was 1/12/2003. When referred to PMFI 1, the medical report he stated the contents and urged that it confirms that complainant was touched. 30.PW2 was the complainant and the court conducted a voire dire in camera. The court was satisfied that she understood the meaning of an oath and importance of telling the truth and the witness gave sworn evidence. 31.She stated that she was 14 years in 2019 and that she was born on 22/12/2003. She visited her grandfather in 2019 in the first term during Midterm in February and also visited her brother who stays with her grandfather. She stated that they share a mother but had a different father. She stated that on 15/2/2019, she arrived at her brother's one roomed house at 8:00 p.m. Her grandfather lived in a separate house. The Accused proposed that they stay together when his grandfather complained that his house was not spacious. She stated that on 16/2/2019 she slept there and nothing happened on that day/night. That on both the day and night of Saturday nothing happened. 32.She stated that on Saturday, her brother was not acting normal. He touched her around the waist and he would pull her closer by the shoulder when she moved which was not normal for brother and sister but nothing happened that night. On Monday, nothing happened and on Tuesday they slept side by side but covered themselves with different blankets and were watching movies at 9:30 p.m. She covered herself and dozed off but felt her brother pulling her blanket. She asked him “Ni nini” and he placed his hand across her waist and pulled her towards him. She questioned him and he told her to move closer so that he may tell her something. He woke up and was about to undress and when she tried leaving, he grabbed her. 33.She stated that he pulled her dress upwards and as she resisted, he fought her and she cried. He removed her dress and they fought as he removed her undergarments. He then brought a “trust” condom“, came on top of her, opened up her legs and inserted his penis into her vagina, but she did not scream for help out of fear. He allowed her to go outside and he followed her. She then went back to the house and they shared the bed. The next morning he woke her up and had sex with her and went away after which she went to take a bath. 34.She then told him she was sick and needed to go to the hospital and he allowed her. She then went Timau Police Station and reported. She later went to Nanyuki Teaching and Referral Hospital. She produced the P3 Form and PRC Form filled and her birth certificate. She stated that the Accused refused to release the original. Further, that her mother, SK, died in 2013. 35.During Cross-examination she stated that she was born on 22/12/2003 and that according to PExh 3, her date of birth is 1/12/2002. She stated that there was sufficient lighting and that the power never ran out and she was able to see the accused. 36.PW3 was Salat Guyo, a Clinician at Nanyuki Teaching and Referral Hospital. He produced a P3 Form and PRC form filled by his colleague, Nancy Thamaini, who was away on study leave. 37.The prosecution made an application under Section 77 of Evidence Act to have the witness produce the PRC and P3 Forms which was allowed unopposed. 38.He stated (from the report) that on examination, she had already changed her clothes and all physical examinations were normal. The genitalia was normal and had no tear but the hymen was missing. There was presence of a non-foul smelly whitish discharge. The Urinalysis was normal and upon a High vaginal swab, there were no spermatozoa or yeast cells seen. Her conclusion was there was sexual penetration on a patient on HIV/AIDS care. 39.Counsel for the accused informed the court that she had received a letter from the complainant dated 5/4/2022 declaring her intention to withdraw this matter. The prosecution opposed the withdrawal as no good reason had been given. Consequently, the court gave the complainant the opportunity to take the stand. 40.The Complainant then stated that she had forgiven the accused for what he did. 41.The trial court considered the nature of the alleged offence (incest) and stated that under Article 157 of the Constitution, the State power to prosecute is vested in the ODPP. That Article 157 (10) of the Constitution provides that the ODPP can’t be directed in execution of this prosecutorial power unless when he exercise the same in contravention to the administration of Justice. The court held that without the concurrence of the ODPP in the Application, it denied the application to have this matter withdrawn. 42.The Appellant was then placed on his defence. He stated that the complainant was his step sister. He recalled that on 19th and 20th February, 2019, he was at Kalalu doing farming. That he went there on Monday and returned home on Wednesday. When he arrived home he saw a police van approaching. The police alighted and arrested him and failed to give an explanation for the arrest. He denied engaging in sex with the complainant and further, stated that there was a dispute between himself and his uncle over the land they reside on. That he discovered that his said uncle promised the complainant to take her to boarding school and Kshs. 1,000 if she brought these false allegations. He stated that he wished to rely on the will by Samuel Nchebere, his grandfather. That the will names the manager as Daniel Kimathi and the properties were bequeathed to him. 43.During Cross-examination he denied sharing any parent with the complainant and stated that his mother was SK. When referred to PEX 3, the birth certificate for the complainant with her mother as SK, he stated that he had an uncle namely Joseph Kimathi. That Joseph Kimathi’s mother was married to his grandfather and he knew the complainant’s parents. He maintained that he was at Kalalu farming at the time of the incident and stated that he had not availed a witness to confirm the alibi. He maintained that he was framed because of the will and properties bequeathed to him. 44.Before delving into the issues for determination, I find it prudent to address the issue of the Amended Grounds of Appeal that the Appellant has introduced together with his submissions, pursuant to section 350(iv) of the Criminal Procedure Code. The said section provides as follows;i)subject to the provisions of paragraph (ii), where, within five days of the date of the judgment or order appealed against, the appellant or his advocate has applied to the subordinate court which passed the judgment or made the order for a copy of the record of the proceedings before that court, and where the appeal is entered within the period of limitation prescribed by section 349 but before receipt by the appellant or his advocate of the copy of the record, the petition of appeal may be amended on notice in writing to the Registrar of the High Court and to the Director of Public Prosecutions and without leave of the High Court, within seven days of the receipt by the appellant or his advocate of the copy of the record applied for;iv)save as provided in paragraph (i), a petition of appeal may only be amended with the leave of the High Court and on such terms and conditions, whether as to costs or otherwise, as the High Court may see fit to impose; 45.There is no proof of any such notice or any leave having been obtained in compliance with the statutory provisions. Therefore, the Amendments to the Petition of Appeal cannot be considered by this court. 46.The issues that arise for determination are;i.Whether the prosecution proved its case beyond reasonable doubt.ii.Whether the sentence was harsh or excessive in the circumstances 47.The offence of incest is provided for under Section 20(1) of the Sexual Offences Act 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 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." 48.Section 22 defines the relationship between accused and victim as hereunder: -In cases of the offence of incest, brother and sister includes half-brother, half-sister and adoptive brother and adoptive sister and a father includes a half father and an uncle of the first degree and a mother includes a half mother and an aunt of the first degree whether through lawful wedlock or not.” 49.The Court of Appeal in LOA v Republic [2020] KECA 927 (KLR) observed that to sustain a conviction for incest, the prosecution must establish that there was penetration or an indecent act as defined under the Sexual Offences Act, that the complainant and the accused were related within the prohibited degrees of consanguinity, that the accused knew of that relationship, and that the accused was positively identified as the perpetrator. 50.On the issue of penetration, the complainant gave a detailed, consistent and graphic account of how the appellant forcefully removed her clothes, restrained her, took a condom and inserted his penis into her vagina on two separate occasions despite her resistance. It is settled law that penetration does not require proof of ejaculation, presence of spermatozoa or physical injuries. Even the slightest penetration of the genital organs is sufficient within the meaning of Section 2 of the Sexual Offences Act. Medical evidence is corroborative and not an indispensable requirement where the evidence of the victim is otherwise credible. See Bassita v Uganda Criminal Appeal No. 35 of 1995 and Fappyton Mutuku Ngui v Republic [2014] eKLR. 51.The evidence of the complainant was the evidence of a victim of a sexual offence which did not require corroboration within the meaning of section 124 of the law of the Evidence Act. I am unable to agree with the appellant's submission that the conviction was improperly founded on the evidence of a single witness. The proviso to Section 124 of the Evidence Act expressly permits a conviction in sexual offence cases upon the sole evidence of the victim if the court believes the victim and records the reasons for that belief. The trial magistrate expressly found the complainant truthful and credible. Having myself re-evaluated her evidence, I find it coherent, consistent and materially corroborated by the surrounding circumstances and the medical evidence. Her later expression that she had forgiven the appellant did not amount to a recantation of her testimony and could not negate the evidence already lawfully received. I therefore find that the prosecution proved penetration. 52.Regarding whether the Appellant was a “relative”, the complainant testified that the Appellant was her step brother and who also by himself confirmed the same and additionally stated that his mother was SK, who was also the minor’s mother, essentially confirming that they shared a mother, but had different fathers 53.On identification, this was clearly a case of recognition rather than identification of a stranger. The complainant had known the appellant all her life as her brother. They spent several days together in the same house before the incident and the offence occurred in a room illuminated by electric lighting. The possibility of mistaken identity was therefore completely eliminated. As was stated in Anjononi & Others v Republic [1980] KLR 59, recognition is generally more reliable than identification of a stranger because it depends upon personal knowledge of the assailant. 54.Regarding age, although the appellant pointed to discrepancies in the complainant's oral testimony as to whether she was fourteen or sixteen years old, those inconsistencies were minor and did not go to the root of the prosecution case. The birth certificate, which was admitted into evidence without objection, established her date of birth and demonstrated that she was below the age of eighteen years at the time of the offence. It is settled law that minor inconsistencies which do not occasion prejudice or affect the substance of the prosecution case cannot invalidate an otherwise proper conviction. See Twehangane Alfred v Uganda Criminal Appeal No. 139 of 2001. 55.In the circumstances, I find no reason to interfere with the conviction of the Appellant as all the elements of the offence of incest were proved beyond reasonable doubt. The prosecution proved penetration, the prohibited relationship, the complainant's age and the appellant's identity beyond reasonable doubt. Whether the sentence was lawful or excessive 56.The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the 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 the wrong material, or acted on the 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”. 57.I note that the prosecution seeks to have this court enhance the Appellants’ sentence on the premises that he was to serve life imprisonment. Although Section 354(3) of the Criminal Procedure Code grants the High Court power to enhance or vary a sentence imposed by the trial court, that power must be exercised with caution, and, where there is no appeal against sentence, the appellant must be given prior notice of the court’s intention to enhance the sentence. The Court of Appeal in Samwel Mbugua Kihwanga v Republic [2016] KECA 281 (KLR) observed as follows:“…the obligation on an appellate court to fore-warn or caution an appellant before enhancing a sentence imposed against him by a trial court is not anchored on any law but in practice that has now gained such notoriety that it is proper that an appellant be warned of the consequences of proceeding with his appeal in circumstances where so proceeding may likely result in the sentence being enhanced to his disadvantage. It is simply to enable him weigh the options available and then make a decision that suits his best interests, especially in circumstances where, like in the instant appeal, an appellant is disadvantaged for not being schooled both in the law and legal procedures he may be confronted with during the course of the trial of his appeal.” 58.It follows that even if the court were to entertain the notion of enhancing the sentence, in the absence of the appellant being notified of the same, it would be unconstitutional and unjust. 59.The upshot of the foregoing is that the Appeal is dismissed in its entirety for lack of merit. DATED SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF JULY 2026A.K.NDUNG’UJUDGE